Filed 6/28/19
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION THREE


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A152754
v.
MIN CHANG CHEN,                                      (Napa County
                                                     Super. Ct. No. CR161827)
        Defendant and Appellant.


        Defendant Min Chang Chen, also known as Ivy Chang Chen, appeals the denial of
her motion to vacate a conviction under Penal Code section 1473.7.1 Chen contends her
trial counsel failed to properly advise her of the adverse immigration consequences of her
plea agreement and that the erroneous advisement damaged her ability to meaningfully
understand, defend against, and knowingly accept those consequences. We affirm the
denial of her motion.
                                       BACKGROUND
        In May 2012, Napa Special Investigations Bureau found 262 marijuana plants
growing in a house on Patricia Drive in American Canyon, following a fire at the
property, where the utilities appeared to have been bypassed. Agents traced the house to
Chen and her brother, who were located and arrested. They executed a search warrant for
the search of Chen’s family restaurant and residence in Vallejo. Chen was charged with
cultivating marijuana (Health & Saf. Code, § 11358) (count one); possession of
marijuana for sale (Health & Saf. Code, § 11359) (count two); and theft of services
(§ 498, subd. (b)) (count three).


        1
            All statutory references are to the Penal Code unless otherwise stated.

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       In June 2012, Chen was arraigned on these charges and completed an arraignment
form which stated, “If you are not a United States citizen, a plea of Guilty or No Contest
could result in your deportation, exclusion from admission to this country, or denial of
naturalization.” Chen signed the form, attesting she understood its contents, and her
court interpreter also signed the form, certifying it had been translated to Chen.
       In July 2012, pursuant to a negotiated disposition, Chen pleaded no contest to
cultivation of marijuana in violation of Health and Safety Code section 11358. Counts
two and three were dismissed. The plea form indicated a maximum penalty of three
years in prison for the Health and Safety Code section 11358 violation. On her plea form
Chen initialed the statement regarding the consequences of her plea: “I understand that,
if I am not a United States citizen, a plea of guilty or no contest could result in my
deportation, exclusion from admission to this country, or denial of naturalization.” Chen
also signed the form, as did her interpreter who certified it was translated to Chen.
       At the hearing, with the aid of an interpreter, the trial court asked Chen, “Did the
interpreter read it to you, did you understand it, and did you sign it?” The court also
asked Chen if the initials on the plea form were hers and if she had had enough time to
discuss her decision with her attorney. Chen responded, “Yes.” Asked if she had any
questions about the contents of the plea form, Chen said, “No.”
       Probation’s presentence report was completed with the assistance of an interpreter.
In her August 2012 interview with probation following her plea, Chen “admitted her
actions” and stated she and her brother learned how to grow marijuana by talking to
friends and watching an online video. She acknowledged that with her brother, the two
spent $20,000 on plants and supplies and did so to take care of their parents. She told
probation they had no other place but in their rented house to grow the marijuana. Chen
also said “she knew it was ‘totally wrong and illegal,[’] but her family needed money
because their family restaurant was hurting financially.” Chen expressed willingness to
comply with any term and condition imposed by the court and hopefulness she would not
have to serve jail time.



                                              2
       In September 2012, the trial court suspended imposition of sentence and granted
Chen three years’ probation. Chen was ordered to serve a 120-day term in jail; to pay
various fines, fees, and restitution; and to abide by terms and conditions of probation. At
the sentencing hearing, Chen acknowledged to the trial court she had reviewed all the
probation conditions and accepted them.
       In July 2017, Chen moved to vacate her plea and conviction under sections 1473.7
and 1016.5. She argued her trial counsel failed to properly investigate and advise her of
the immigration consequences of her plea and she was prejudiced by her counsel’s
deficient representation.
       In her declaration, Chen stated, “I was born on June 7, 1976 in Guangzhou,
Guangdong, China. . . . [¶] . . . I came to America with my mother, father, and brother in
1992 and am a Permanent Resident. We left China because my grandfather was
[granted] his immigration petition for my father and the whole family. I have not been
back to China and am afraid of what would happen if I were to return.” With “her entire
life . . . in America,” she did not know anyone in China. She further stated she was the
primary caretaker for her 68-year-old mother and 67-year-old father. As the “main
person” caring for her parents, she was concerned her parents would be unable to take
care of themselves, since they were poor and had no other relatives in the United States.
She added that her parents, who “[would] not survive China,” could not return to China
because of their advanced age. If deported, she expected to never see her parents again.
       According to her declaration, she moved to Vallejo from American Canyon in late
2011 and never returned to the American Canyon house. She explained, “I had no
knowledge or information about a marijuana grow operation that was conducted at our
old residence . . . . I did not know anything about it.” After her arrest, her brother told
her he had arranged the marijuana operation, and she repeated she “knew nothing about
it.”
       Chen described her interactions with her counsel, James McEntee. She said
McEntee told her she would lose at trial and would go to jail unless she took a plea
bargain. Chen stated she “was mostly concerned about being away from [her] family and


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being in jail.” She added, “My lawyer did not mention or discuss the immigration
consequences of my plea. I was not aware that by entering that plea, I would be subject
to deportation and removal and not being allowed back to America. Had I known of the
severe immigration consequences of the plea bargain, I would have opted for trial even
with the risk of incarceration. I would not have accepted my attorney’s recommendation
to plea to a violation of Health and Safety Code [section] 11358 had I known it would
lead to deportation with no ability to return to the United States.”
       Chen’s brother also provided a supporting declaration stating that after his family
moved out of their American Canyon house, he began the marijuana operation there. He
added, “The marijuana grow operation was completely my doing and my sister . . . did
not know anything about it. She had nothing to do with it.”
       The People’s opposition to Chen’s motion included a declaration from the district
attorney who handled Chen’s case. He declared that multiple neighbors identified Chen
at the American Canyon house approximately one week before the fire. A search of
Chen’s residence also yielded evidence of “handwritten marijuana information including
price lists, in [her] room.” He declared he would not have agreed to any lesser charges.
       At the hearing on the motion, the prosecutor called Chen’s trial counsel, James
McEntee, as a witness. McEntee recalled representing Chen in 2012 and reviewed his
file for her case. He testified that he used an interpreter to consult with Chen and learned
she was not a United States citizen but a permanent legal resident. Accordingly,
McEntee attempted to negotiate a disposition with the district attorney that “would be
less harmful to [Chen] in that it might not have drastic adverse immigration
consequences,” but the district attorney would not agree to anything other than one of the
two charged felonies. McEntee also consulted Chen about her immigration status.
Asked whether he informed Chen of potential immigration consequences, McEntee
stated: “I told her that the plea . . . had the potential to cause her to be removed from the
country and denied reentry. I told her that the District Attorney would not agree to
anything other than one of the two felonies that was [sic] alleged in the Complaint.” He
said he had five conversations with Chen about the plea.


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       Chen did not testify at the hearing, and her counsel called no witnesses.
       The trial court denied the motion, finding defendant had not provided a sufficient
basis to vacate the conviction under either Penal Code section 1016.5 or Penal Code
section 1473.7. Chen now appeals from that order.
                                      DISCUSSION
       Section 1473.7, which took effect January 1, 2017, authorizes a person who is no
longer in criminal custody to move to vacate a conviction or sentence where the
“conviction or sentence is legally invalid due to prejudicial error damaging the moving
party’s ability to meaningfully understand, defend against, or knowingly accept the actual
or potential adverse immigration consequences of a plea of guilty or nolo contendere.”
(§ 1473.7, subd. (a)(1), added by Stats. 2016, ch. 739, § 1, West’s Cal. Legis. Service,
pp. 5136–5137.) Section 1473.7 was designed to address the absence under California
law of any means for a person who is no longer in criminal custody to challenge a
conviction on the grounds they could not meaningfully understand its actual or potential
immigration consequences. (Sen. Com. on Pub. Safety, Purpose of Assem. Bill No. 813
(2015–2016 Reg. Sess.) May 10, 2016, p. 1.)
       While this appeal was pending, the Legislature amended the statute to expressly
make clear: “A finding of legal invalidity may, but need not, include a finding of
ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1); Stats. 2018, ch. 825, § 2.)
This amendment took effect January 1, 2019. (Stats. 2018, ch. 825, § 2.) As a
clarification of the existing law, the amendment applies to Chen’s motion even though it
was filed before the amendment went into effect. (See People v. Camacho (2019) 32
Cal.App.5th 998, 1006-1009 (Camacho).)
       Thus, a party asserting error based on an attorney’s erroneous advisement need not
prove the elements of a claim for ineffective assistance of counsel. (See Camacho,
supra, 32 Cal.App.5th at p. 1008.) Rather a defendant seeking relief under section
1473.7 must show “prejudicial error” which is “not limited to the Strickland[2] test of


       2
           Strickland v. Washington (1984) 466 U.S. 668.

                                              5
prejudice, whether there was [a] reasonable probability of a different outcome in the
original proceedings absent the error.” (Id. at p. 1009.) The question is not whether the
defendant would have received a more favorable outcome in the case overall or whether
the defendant would have been convicted of the same crimes even if he had proceeded to
trial. (Id. at pp. 1010-1012.) Instead, the focus is whether, if aware of its immigration
consequences, the defendant would have rejected the plea. (Ibid.) In some cases, a
defendant “would have rejected any plea leading to deportation—even if it shaved off
prison time—in favor of throwing a ‘Hail Mary’ at trial.” (Lee v. United States (2017) ––
– U.S. ––––, [137 S.Ct. 1958, 1967-1967], 198 L.Ed.2d 476 (Lee).) The defendant shows
prejudice if he can convince the court “he would never have entered the plea if he had
known that it would render him deportable.” (Camacho, supra, 32 Cal.App.5th at pp.
1011-1012.)
       When reviewing an order denying a section 1473.7 motion, “[w]e defer to the trial
court’s factual determinations if supported by substantial evidence, but exercise our
independent judgment to decide whether the facts demonstrate [prejudicial error].”
(People v. Olvera (2018) 24 Cal.App.5th 1112, 1116; see People v. Tapia (2018) 26
Cal.App.5th 942, 950.)
       Chen contends her attorney did not adequately advise her of the immigration
consequences of her plea because he failed to advise her that it was certain the underlying
plea could cause her mandatory deportation. In Padilla v. Kentucky (2010) 559 U.S. 356,
the Supreme Court held that a lawyer representing a client on a charge leading to
mandatory deportation “must inform [his or] her client whether his [or her] plea carries a
risk of deportation.” (Id. at p. 374.) The record reflects that Chen’s counsel, with the aid
of an interpreter, told her that her plea “had the potential to cause her to be removed from
the country and denied reentry.” Counsel also testified that he attempted to secure the
district attorney’s agreement to a plea “that . . . might not have drastic adverse
immigration consequences because [he] knew from consulting with her that she was not a
United States citizen.” He told Chen “the District Attorney would not agree to anything
other than one of the two felonies that was alleged in the Complaint.” Counsel seeking to


                                              6
vacate Chen’s conviction had the opportunity, but did not, cross-examine Chen’s lawyer
on either of these points. We will not conclude on this record that counsel McEntee, who
negotiated and advised Chen to plead to the single felony, failed to provide her the ability
to meaningfully understand the consequences of her plea. Chen was told the single
felony had the potential to cause her removal from the United States and she would not
be allowed to come back. This clearly imparts a risk of deportation as required under
Padilla and provided Chen notice and the ability to more fully explore, if she wished, the
immigration impact of her plea. Moreover, we are unwilling to require counsel to state
deportation will be certain because it may not be accurate advice, even in cases where an
offense qualifies for mandatory deportation under federal law.
       McEntee’s advice and counsel to Chen make this case materially different from
those cases where counsel’s performance has been held deficient. In People v. Novoa
(2019) 34 Cal.App.5th 564, the lawyer had minimal interactions with the defendant,
lacked any documentation in his case file regarding discussions of immigration concerns,
and there was no evidence counsel adequately explained to the defendant the immigration
consequences of pleading guilty or attempted to negotiate any plea agreement with the
prosecutor. (Id. at pp. 587-589.) Similarly, in In re Hernandez (2019) 33 Cal.App.5th
530, counsel did not discuss whether a conviction could affect defendant’s immigration
status, had no awareness of defendant’s immigration status or risk of deportation, and did
not attempt to negotiate an alternative plea to avoid any adverse immigration
consequences. (Id. at pp. 545-546.) The defense counsel in Camacho, supra, 32
Cal.App.5th 998, did not remember discussing immigration consequences with the
defendant, misunderstood the effects of expungement or reductions of felonies in
immigration cases, and did not explore possible alternatives to pleading an aggravated
felony, and the defendant himself erroneously believed a negotiated plea calling for no
time in custody would avoid making him deportable. (Id. at pp. 1002-1003, 1009.)
Finally, in People v. Espinoza (2018) 27 Cal.App.5th 908, 915, counsel could not recall
what advisements he discussed with defendant, and his notes did not refer to any
discussion of immigration consequences. (Id. at p. 915.) Unlike all of these cases,


                                             7
McEntee had numerous discussions with Chen about her plea, warned her of the
immigration effects of her plea, and made an effort to negotiate a plea that would not
have such drastic immigration consequences.
       Moreover, even if a court were to conclude counsel erred, Chen cannot prevail
because she cannot establish prejudice. As noted earlier, the defendant shows prejudice
if he can convince the court “he would never have entered the plea if he had known that it
would render him deportable.” (Camacho, supra, 32 Cal.App.5th at pp. 1011-1012.)
“Courts should not upset a plea solely because of post hoc assertions from a defendant
about how he [or she] would have pleaded but for his [or her] attorney’s deficiencies.
Judges should instead look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.” (Lee, supra,137 S.Ct. 1958 at p. 1967; see People v. Cruz-Lopez
(2018) 27 Cal.App.5th 212, 223-224 [“An allegation that trial counsel failed to properly
advise a defendant is meaningless unless there is objective corroborating evidence
supporting appellant’s claimed failures. . . . [T]he ‘easy’ claim that counsel gave
inaccurate information further requires corroboration and objective evidence because a
declaration by defendant is suspect by itself”].) In this context, we review the record for
corroboration and consider the likelihood of success at trial, the potential consequences
after a trial compared to the consequences flowing from the guilty plea, and the
importance of immigration consequences to the defendant. (See Lee, supra, 137 S.Ct. at
pp. 1966-1967.)
       Here, Chen presented insufficient evidence that she would have rejected the plea
and proceeded to trial had counsel been more explicit about its immigration
consequences. There was no plausible chance she would have been acquitted. In Lee,
the Supreme Court noted that “defendants obviously weigh their prospects at trial in
deciding whether to accept a plea. [Citation.] Where a defendant has no plausible
chance of an acquittal at trial, it is highly likely that he will accept a plea if the
Government offers one.” (Lee, supra,137 S.Ct. 1958 at p. 1966) Chen’s most recent
declaration asserts that after moving to Vallejo, she never returned to her family’s
American Canyon house where the marijuana operation was found and that she knew


                                                8
nothing about it, a point her brother echoes in his declaration. But the prosecutor
handling Chen’s case declared that multiple neighbors identified Chen at the house
approximately one week before the fire prompting the investigation. He also added that
investigators found evidence of “handwritten marijuana information including price lists,
in [Chen’s] room.” Nor was an alternative plea with mitigated immigration
consequences possible. The prosecutor corroborated the testimony of Chen’s lawyer that
he would not have agreed to a plea for any less than one of the two felonies. Thus, there
is no support in the record that there could have been any plea to an immigration-neutral
disposition.
         The unlikelihood of acquittal or an alternative plea leaves little probability that
Chen was going to get a better result after trial. “A defendant without any viable defense
will be highly likely to lose at trial. And a defendant facing such long odds will rarely be
able to show prejudice from accepting a guilty plea that offers him [or her] a better
resolution than would be likely after trial.” (Lee, supra, 137 S.Ct. at p. 1966.) Here,
conviction under Health and Safety Code section 11358 would have led to a maximum
three-year prison sentence. Chen’s plea resulted in imposition of sentence suspended and
her placement on probation for three years with a 120-day jail term and various fines and
fees. Her plea agreement offered a better resolution than she was likely to receive after
trial.
         Finally, there is no evidence to corroborate Chen’s assertion that the immigration
consequences of her plea were of primary importance to her. In Lee, the defendant
repeatedly asked his attorney if he could be deported, and counsel testified that Lee
would have proceeded to trial had he known he would face deportation. (Lee, supra, 137
S.Ct. at pp. 1967-1968.) Lee also told the court at the plea hearing that the risk of
deportation affected his plea, and he only entered his plea after his counsel assured him
there was no real risk. (Id. at p. 1968.) Here, there is no comparable evidence. Chen
said no such thing during her plea hearing, and her attorney testified that he advised her
the plea could cause her to be removed from the country. But there is nothing in the
record that indicates Chen asked about her possible deportation, and this suggests


                                                9
immigration consequences were not her primary consideration. The record also shows
Chen was willing to enter a guilty plea with immigration consequences because she
signed a form acknowledging her guilty plea could result in her deportation. We are not
convinced that Chen would have declined the plea had counsel told her more specifically
or emphatically that deportation was certain.
       Chen states she “has clearly been prejudiced by her lawyer’s misadvice and his
failure to disclose the harsh, irreversible immigration consequences.” She contends that
had she been advised that she would be facing deportation to a country she hardly knew,
she would not have pleaded guilty. In these circumstances, she asserts a plea “would
have been illogical” since it would have resulted in “mandatory deportation to a third
world country to which she has no connection or family ties.” We have no doubt the
immigration consequences Chen currently faces are critically important to her. However,
uncorroborated self-serving statements are insufficient to meet her burden of proof. The
evidence surrounding her plea shows the likelihood of a conviction and exposure to a
longer prison sentence after which she could have still faced removal proceedings. We
are not convinced that immigration concerns would have motivated her to reject a plea.
       Chen claims her plea bargain did not present a tremendous advantage over her
exposure at trial. According to her, the maximum exposure for the charges she faced was
“[three] years if given the upper term, but more likely the midterm of [two] years. . . .
Her bargain provided for 120 days in jail . . . . However, she spent an additional
15 months in immigration detention.” Thus, she says she spent more time in custody as a
result of her plea than she would have serving a mid-term sentence following conviction.
However, the immigration detention occurred months after she entered her plea, was a
consequence of federal action, and was not a part of her bargain. At the time of her plea,
there is no indication in the record of any immigration hold on Chen that would make
immigration detention a certainty as a result of her plea.
       Chen says in considering the plea she “made clear to her lawyer that she was
primarily concerned about being away from her family and having to spend time in jail.”
Chen says this is the way she “placed particular emphasis on the immigration


                                             10
consequences of the plea . . . .” We are not persuaded. On its face, the statement simply
shows that Chen did not want to be away from her parents while she was serving time in
jail or prison. It does not suggest her concern was about deportation. Moreover, this
statement is taken from Chen’s 2017 declaration in support of her Penal Code
section 1473.7 motion. It is not evidence of events occurring at the time of her 2012 plea
agreement. Chen’s assertions that she would not have accepted the plea had she been
properly advised, without more, are legally insufficient to demonstrate prejudice.
                                     DISPOSITION
       The order denying Chen’s motion under Penal Code section 1473.7 is affirmed.




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                                                 _________________________
                                                 Siggins, P.J.


WE CONCUR:


_________________________
Petrou, J.


_________________________
Wiseman, J.*




       *
        Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

                                            12
People v. Chen, A152754




                          13
Trial Court:                                   Napa County Superior Court



Trial Judge:                                   Honorable Mark Boessenecker

Counsel:

Stanley D. Radtke, under appointment by the Court of Appeal, for Defendant and
Appellant.

 Xavier Bacerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Seth Schalit, Supervising
Deputy Attorney General, Melissa J. Kendra, Deputy Attorney General, for Plaintiff and
Respondent.




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