AARON, J.
Pursuant to a plea agreement, Eder Gilnar Rodriguez pled guilty to one count of robbery (Pen. Code, § 211).
Approximately six months later, Rodriguez filed a motion to withdraw his plea on the ground that former defense counsel, Attorney Joel Bailey, provided ineffective assistance in incorrectly advising Rodriguez regarding the immigration consequences of his plea. Specifically, Rodriguez claimed that Attorney Bailey told him that his guilty plea would not "harm him in immigration," but in fact, the plea resulted in a conviction that provided an "absolute and permanent basis for removal." (Boldface omitted.) Rodriguez further noted that he was currently facing immigration removal proceedings. Rodriguez also claimed that there was a reasonable probability that, but for Bailey's ineffective assistance, he would not have pled guilty.
The trial court held a hearing on the motion at which both Rodriguez and Attorney Bailey testified. Bailey testified that he had advised Rodriguez that "he would be deported" as a result of his guilty plea.
On appeal, Rodriguez claims that the trial court abused its discretion in denying the motion to withdraw his guilty plea, given Bailey's "clear lack of credibility." (Formatting omitted.) We reject this argument because there is substantial evidence in the record to support the court's credibility determination. Rodriguez also contends that the trial court abused its discretion in denying the motion to withdraw the plea because Bailey incorrectly advised Rodriguez concerning the legal basis under which he was eventually subjected to removal proceedings. We conclude that Rodriguez suffered no prejudice from any such ineffective assistance, given our conclusion that there is substantial evidence to support the trial court's finding that Bailey told Rodriguez that he would be deported as a result of his plea. Finally, Rodriguez claims that the trial court erred in relying on language in the plea agreement and plea colloquy to negate Attorney Bailey's alleged ineffective assistance. We reject this argument because the record is clear that the trial court did not rely on the plea agreement or plea colloquy for this purpose. Accordingly, we affirm the trial court's order denying Rodriguez's motion to withdraw his guilty plea.
In August 2015, the People charged Rodriguez, together with several codefendants, with robbery (§ 211) (count 1), assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 3).
The following month, Rodriguez entered into a plea agreement with the People. The agreement provided that Rodriguez would plead guilty to one count of robbery, the People would dismiss the balance of the charges, and Rodriguez would be placed on felony probation and serve 365 days in local custody as a condition of probation. The plea form states, "Any conviction of a non-citizen for an `aggravated felony' as defined under 8 U.S.C. 1101(a)(43)
The trial court placed Rodriguez on formal probation for three years, subject to various conditions, including that he serve 365 days in local custody.
Approximately six months after the trial court placed Rodriguez on probation, Rodriguez filed a motion to withdraw his guilty plea pursuant to section 1108 on the ground that Bailey had provided ineffective assistance in incorrectly advising Rodriguez regarding the immigration consequences of his plea. Specifically, Rodriguez claimed that Bailey incorrectly told him that his robbery conviction "would not have any effect on future immigration proceedings." (Formatting omitted.) Rodriguez stated that upon his release from local custody, he was immediately taken into custody by federal immigration authorities pending the adjudication of removal proceedings that had been commenced against him. Rodriguez argued that he would "not have pled guilty if he was correctly advised that a guilty plea would surely have subjected him to removal and/or prevent him from obtaining his legal residency in the United States forever." (Boldface omitted.) Rodriguez attached documents from the pending immigration removal proceedings to his motion. The documents indicated that Rodriguez faced removal proceedings in light of his conviction for a "crime involving moral turpitude" under federal immigration law.
After the People filed an opposition, the trial court held a hearing on the motion during which both Rodriguez and Attorney Bailey testified. At the conclusion of the hearing, the court denied the motion.
Rodriguez obtained a certificate of probable cause from the trial court and timely appealed the trial court's order denying his motion to withdraw his guilty plea.
Rodriguez claims that the trial court erred in denying his motion to withdraw his guilty plea. Specifically, Rodriguez argues that the trial court erred in denying his request to withdraw his guilty plea on the ground that Attorney Bailey provided ineffective assistance in failing to properly advise him with respect to the immigration consequences of his plea.
In People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson), the Supreme Court outlined the law governing a motion to withdraw a guilty plea and the standard of review to be applied in reviewing a ruling on such motion:
In Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the United States Supreme Court held that a criminal defendant has a Sixth Amendment right to effective assistance of counsel with respect to advice concerning the immigration consequences of a guilty plea. (Padilla, at pp. 373-374.) In describing the scope of that right, the Padilla court stated:
The Padilla court further stated that whether a defendant who has received ineffective assistance of counsel in this context is entitled to relief "depends on whether he has been prejudiced." (Padilla, supra, 559 U.S. at p. 360.) Although the Padilla court declined to address the issue of prejudice in that case (id. at p. 360), the California Supreme Court explained in Patterson that, with respect to ineffective assistance in the context of a guilty plea, "[t]o establish that he was prejudiced by counsel's alleged errors, [a defendant] must show `that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty.'" (Patterson, supra, 2 Cal.5th at p. 901.)
Rodriguez contends that the trial court "arbitrarily ignored an otherwise clear lack of credibility" (formatting omitted) on the part of Attorney Bailey concerning whether Bailey advised Rodriguez that he would be deported as a result of his guilty plea. Rodriguez argues that the trial court should have instead credited his testimony that Attorney Bailey did not tell him that he would be deported.
In People v. Dillard (2017) 8 Cal.App.5th 657, 665, the Court explained the law governing credibility determinations in the context of a defendant's motion to withdraw a plea:
During the hearing on the motion to withdraw the plea, defense counsel asked Rodriguez whether, in discussing the People's plea bargain offer, Attorney Bailey had said "anything about the immigration consequences of this offer." Rodriguez responded, "He did. But only because I asked him."
Defense counsel then asked, "And what did [Attorney Bailey] say about the immigration consequences, if you remember?" Rodriguez responded, "Well, he said that . . . since I wasn't doing the whole year, that I was only going to do six months, that it wasn't going to affect me." Rodriguez explained that he understood this to mean that after serving his sentence he would "go back home to my family." Rodriguez further stated that Attorney Bailey had never mentioned the term "crime of moral turpitude."
On cross-examination, Rodriguez acknowledged that he had not read the change of plea form before initialing it despite representing on the form that he had read each item on the form and despite stating at the change of plea hearing that he had read the plea form. When asked by the prosecutor whether the trial judge who accepted his guilty plea had asked Rodriguez whether he understood that he could be deported, Rodriguez stated, "[T]he judge never brought it up." Rodriguez further stated that he had told Bailey "that the judge never mentioned that [i.e., the immigration consequences of his plea]," and that, in response, Attorney Bailey "confirmed me too [sic] that I was going to . . . do my time and go home." Rodriguez subsequently read a copy of the transcript of the plea hearing and acknowledged that the judge had asked him at the change of plea hearing whether he understood that the "guilty plea could have consequences of deportation, denial of naturalization, or exclusion from admission to the United States."
Attorney Bailey also testified at the hearing. The prosecutor asked Bailey, "When you conveyed [the plea bargain offer] to [Rodriguez], did you discuss the immigration consequence of that offer?" Attorney Bailey responded, "Yes, I did."
The prosecutor then asked, "What specifically did you tell him?" Attorney Bailey responded, "I told him that a 211
During cross-examination, Bailey stated that his understanding of federal immigration law was that "a 211 is an aggravated felony, so he's deportable no matter what," and that "the sentence becomes irrelevant if you have an aggravated felony conviction." Rodriguez's counsel also asked Bailey whether he knew that a person "can be deported for what's called a crime of moral turpitude. . . ." Attorney Bailey stated that he was aware that a "crime of moral turpitude can result in deportation. . . ." However, in describing his discussions with Rodriguez, Attorney Bailey stated, "I discussed the aggravated felony issue. I did not directly address a crime of moral turpitude issue."
The court also asked Attorney Bailey several questions, including the following:
After this exchange, the prosecutor asked Attorney Bailey, "Do you have any recollection of whether you told the defendant, you will not be deported for this?" Attorney Bailey responded, "I did not tell him that, no." The prosecutor clarified, "And you specifically recall that you did not tell him that?" Attorney Bailey responded in the affirmative.
After Attorney Bailey's testimony, the court heard argument from both Rodriguez's counsel and the prosecutor. During the argument, the trial court made clear that it understood that Rodriguez was contending that Bailey had been misinformed about portions of federal immigration law and in turn, had misinformed Rodriguez regarding the immigration consequences of his guilty plea. For example, Rodriguez's counsel argued that Bailey had failed to properly advise Rodriguez that he was pleading guilty to a crime that had been categorically classified as a "crime of moral turpitude," under federal immigration law. The trial court responded that it understood that Rodriguez's counsel was arguing that "while Mr. Bailey understood much of what's involved with respect to immigration consequences, he didn't get it all right." The court also acknowledged that Rodriguez was arguing that Attorney Bailey had been "wrong about his analysis" regarding whether Rodriguez would be deported on the ground that he had pled guilty to an aggravated felony. However, the court stated, "I don't see how if he pled guilty with the understanding and advice of counsel that his plea was going to result in deportation, it doesn't make any difference if Mr. Bailey said you are going to be deported [because] of Reason A. It turns out he was deported because of Reason B."
The court proceeded to deny the motion, reasoning in part:
As outlined above, the trial court heard testimony from both Rodriguez and Attorney Bailey, carefully explored the ramifications of that testimony, and offered a reasoned explanation for its finding that it considered Attorney Bailey's testimony credible. (See pt. III.B.2, ante.) Further, in making its credibility determination, the trial court was able to view the demeanor of the witnesses testifying, an opportunity not afforded to this court. In addition, the trial court could have reasonably found Rodriguez lacking in credibility. Rodriguez testified that the judge at the change of plea hearing did not mention immigration consequences during the plea colloquy and that, when Rodriguez informed Attorney Bailey of this fact, Attorney Bailey had "confirmed" that there would be no harmful immigration consequences from the plea. However, Rodriguez subsequently acknowledged, after reading the transcript of the change of plea hearing, that the trial judge had in fact informed him that the plea might have immigration consequences, including deportation. In short, the trial court's credibility determination that Attorney Bailey informed Rodriguez that he would be deported as a result of his plea is supported by substantial evidence in the record.
Rodriguez's argument to the contrary is not persuasive. Rodriguez argues that the trial court erred in supporting its credibility determination by stating that Attorney Bailey had "corroborated" his testimony concerning his "standard practice" in this context "with [Attorney Bailey's] testimony about his understanding of the immigration consequences of a plea such as this." Rodriguez contends that this reasoning was "arbitrarily against both the record and applicable law" because Attorney Bailey was mistaken about several aspects of federal immigration law.
Even assuming that Attorney Bailey was mistaken about certain aspects of federal immigration law, the trial court could still have reasonably found that the knowledge that Attorney Bailey did display of federal immigration law
Accordingly, we conclude that the trial court did not err in crediting Bailey's testimony that he informed Rodriguez that he would be deported as a result of his plea.
Rodriguez claims that the trial court abused its discretion in determining that Attorney Bailey's failure to inform Rodriguez that he was pleading guilty to a crime of moral turpitude and would be subject to removal proceedings on this basis did not warrant permitting Rodriguez to withdraw his plea.
As discussed in part III.A.2, ante, a defendant seeking to establish prejudice from ineffective assistance of counsel in connection with the decision to plead guilty must show "`a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty' . . . ." (Patterson, supra, 2 Cal.5th at p. 901.)
In his motion to withdraw his guilty plea, Rodriguez presented evidence that he was facing removal proceedings because he was "removable as a person who has been convicted of a crime involving moral turpitude. . . ."
As discussed in part III.B, ante, Attorney Bailey testified at the hearing on the motion to withdraw that he told Rodriguez that he would be deported because he was pleading guilty to an aggravated felony. Bailey further acknowledged that he "did not directly address a crime of moral turpitude issue."
In its ruling denying the motion to withdraw the plea, the trial court ruled that there was no "causal link" between Rodriguez's decision to plead guilty and Attorney Bailey's failure to inform Rodriguez that he was pleading guilty to a crime of moral turpitude and that he would be removable on this basis. In reaching this conclusion, the court reasoned in part:
In part III.B, ante, we concluded that the trial court did not err in finding that Bailey told Rodriguez that "as a result of the plea, he would be deported." Having been provided with this information, Rodriguez elected to plead guilty. Since Rodriguez pled guilty after having been informed that he would be deported as a result of that plea, he cannot establish any prejudice in counsel's failure to correctly inform him of the legal basis on which removal proceedings were eventually commenced against him.
Rodriguez argues that Bailey's failure to advise him that he was pleading guilty to a crime of moral turpitude was prejudicial because there are "exceptions to the CMT [crime of moral turpitude] provision [with respect to removal] that do not exist with the aggravated felony provision." We fail to see how this establishes prejudice. As discussed above, Attorney Bailey testified that he told Rodriguez that he would be deported because he was pleading guilty to an aggravated felony, and Rodriguez pled guilty nonetheless. Rodriguez provides no argument as to why he would have elected not to plead guilty if Attorney Bailey had also informed Rodriguez that he was pleading guilty to a crime of moral turpitude, and that a conviction for such a crime could provide an additional and independent basis for deportation, albeit subject to some potential exceptions.
Accordingly, we conclude that Rodriguez was not prejudiced by any ineffective assistance provided by Attorney Bailey in failing to inform Rodriguez that he was pleading guilty to a crime of moral turpitude, given our affirmance of the trial court's finding that Bailey told Rodriguez that he would be deported as a result of his plea.
Rodriguez claims that the trial court erred in relying on language in the plea agreement and statements made by the trial court during the plea colloquy that informed him that his plea might have immigration consequences, in rejecting his contention that Attorney Bailey provided ineffective assistance. Rodriguez contends that it was error for the court to rely on these admonishments in order to "negate [Rodriguez's] claims, when there was otherwise strong evidence of ineffective assistance."
As discussed above, the trial court specifically and expressly found that Attorney Bailey informed Rodriguez that he would be deported. The court further stated that since Attorney Bailey "did advise [Rodriguez] that, as a result of the plea, he would be deported," any failure by [Attorney Bailey] to properly advise Rodriguez as to legal basis on which he would be deported was not causally related to Rodriguez's decision to plead guilty. In addition, the court stated that it agreed with defense counsel that "if we were simply talking about the change of plea form, . . . you can't just come in and say the plea form trumps all. I don't care what the lawyer said. You signed the plea form." In short, the record is clear that the trial court relied on its finding that Attorney Bailey told Rodriguez that he would be deported as a result of his guilty plea in rejecting Rodriguez's claim of ineffective assistance of counsel and did not rely on statements in the plea agreement or plea colloquy in rejecting his ineffective assistance of counsel claim.
The order denying Rodriguez's motion to withdraw his guilty plea is affirmed.
McCONNELL, P. J. and HALLER, J., concurs.
