People v. Bravo

69 Cal.App.5th 1063

284 Cal.Rptr.3d 865

The PEOPLE, Plaintiff and Respondent,

v.Esteban Zarate BRAVO, Defendant and Appellant.

E072782

Court of Appeal, Fourth District, Division 2, California.

Filed October 4, 2021

Law Offices of Paul C. Supple and Paul C. Supple, Tustin, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Melissa A. Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

IINTRODUCTION

On June 24, 1997, defendant Esteban Zarate Bravo pleaded guilty to and was convicted on a plea bargain agreement of: a felony violation of domestic violence ( Pen. Code,¹ § 273.5, subd. (a) ; count 1) and felony violation of child cruelty ( § 273a, subd. (a) ; count 2). The trial court sentenced defendant to two years' incarceration, suspended, and placed him on formal probation for 36 months on terms and conditions including 25 days' custody, for which he was granted time served.

On December 11, 2018, defendant filed a motion to vacate the judgment pursuant to sections 1016.5 and 1473.7. On March 19, 2019, the trial court denied the motion. On December 23, 2020, following defendant's appeal of the trial court's decision, this court affirmed. ( People v. Bravo (2020) 58 Cal.App.5th 1161, 273 Cal.Rptr.3d 211.) On March 24, 2021, our Supreme Court granted review, and on May 3, 2021, issued People v. Vivar (2021) 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425, disapproving of this court's opinion in Bravo. On June 9, 2021, the Supreme Court transferred the appeal in Bravo back to this court with directions to vacate the decision and reconsider the matter in light of its decision in Vivar. ( People v. Bravo (2021) ––– Cal.5th ––––, 279 Cal.Rptr.3d 189, 487 P.3d 234) On June 24, 2021, defendant filed a supplemental brief; on July 6, 2021, respondent filed their supplemental brief.

IIFACTUAL BACKGROUND

As we observed in the original opinion, the record on this appeal is slim and includes scant records dating back to the original proceedings and plea taken in 1997. It does not contain or relate the facts underlying defendant's pleas and convictions. The only records dating to the 1997 proceedings are the felony complaint, two minute orders, and the advisement of rights. Most of the record is of proceedings in the trial court at the time of defendant's 2018–2019 motion to vacate the earlier judgment.

The felony complaint alleged that as to count 1, on June 7, 1997, defendant violated section 273.5, subdivision (a), by willfully and unlawfully inflicting a corporal injury resulting in a traumatic condition upon Lucy D., who was defendant's spouse; and, as to count 2, also on June 7, 1997, defendant violated section 273a, subdivision (a), by willfully and unlawfully, under circumstances and conditions likely to produce great bodily harm and death, cause and permit an infant, Esteban Jr., to suffer, and inflicted unjustifiable physical pain and mental suffering, and did willfully cause and permit the person and health of said infant to be injured. The two minute orders report the felony arraignment on June 10, 1997, at which defendant pleaded not guilty, and the preliminary hearing on June 24, 1997, at which defendant pleaded guilty to both counts pursuant to a plea agreement and the sentence awarded as a result therefrom.

Defendant is a native of Mexico and Spanish is his first language. He appeared in custody at a hearing on June 24, 1997, at which he pleaded guilty to both counts with the use of an interpreter. He was admonished as to his rights, and initialed acknowledgment on a form provided therefor.² These rights included the right to a speedy trial; to face and cross-examine witnesses; to ask the court to compel witnesses to attend trial; against self-incrimination; and to be represented by a lawyer. He then initialed the statement that "I understand that when I enter a plea of guilty, I waive, or give up each of the rights as stated above. "

Immediately following that recitation and waiver, the form enumerates the "Consequences of Plea," stating, "In addition to the consequences discussed in open court, and on page two of this form, I am further aware that my guilty plea to a felony will have the following consequences:" followed by six specific statements of consequences including firearm ownership, restitution fines, and others. The sixth such consequence states, "If I am not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." The form was signed by the defendant, defense counsel David Ross, and interpreter Elias Uribe. The plea agreement specified that the custody term would be two years suspended, with a restitution fine of not more than $200, and that a total of 25 days' credit for time served was computed. Defendant also initialed a block stating, "I have had an adequate time to discuss my case with my attorney, including time to discuss (1) my constitutional rights, (2) the consequences of any guilty plea, and (3) any defenses I may have to the charges against me." Defendant's defense counsel, David Ross, also signed the form under the block stating, "I am satisfied that (1) the defendant understands his/her constitutional rights and understands that a guilty plea would be a waiver of these rights; (2) that the defendant has had an adequate opportunity to discuss his/her case with me, including any defenses he/she may have to the charges; (3) that the defendant understands the consequences of the his/her [sic ] guilty plea."

Defendant attests by declaration that the immediate advantage of his plea was that he was to be released from custody that same day so that he could return to his construction job without being fired and could therefore support his spouse and their child.³ Of more immediate importance, defendant was informed by counsel and the prosecution that Immigration and Customs Enforcement (ICE) would conduct a sweep of the county jail where he was being held by the next morning; being released that afternoon allowed him to avoid the ICE sweep and likely deportation as a result of that encounter.

Defendant now contends that at the time he executed the plea agreement, pleading guilty to sections 273.5, subdivision (a), and 273a, subdivision (a), he was unaware of future immigration consequences of his plea. Specifically, he asserts that he recently consulted with an immigration attorney for advice as to his intent to renew an application for lawful permanent status, for which he contends he is otherwise eligible through his wife who is a U.S. citizen; he also contends his convictions resulting from his guilty pleas will result in certain denial of his intended citizenship application. Finally, he contends that he was never informed that he could be deported at any time after entering these pleas. In that light, he claims by his declaration he was never admonished pursuant to the requirements of section 1016.5.

Defendant argues that had he known these consequences, he would not have executed the plea agreement but would have relied on his defenses and gone to trial. He believes the prosecution's case was weak based on his then-girlfriend's alleged statement to the court at his arraignment that he had not "touch[ed], hurt or do[ne] any of the things to her or our son that I was accused of." Further, he claims that the police reports with witness statements prepared by the police "contained factual allegations that were wrong."

IIIDISCUSSION

A. Standard of Review

Our Supreme Court has clarified the standard of review for motions brought pursuant to section 1473.7, subdivision (a)(1), in Vivar, supra , 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425. The Supreme Court held the independent standard of review applies to all prejudice determinations under section 1473.7, subdivision (a)(1). ( Vivar , at pp. 523-526, 278 Cal.Rptr.3d 2, 485 P.3d 425.)⁴ "A standard of independent review—the same standard governing our review of these claims on habeas corpus—is most consistent with section 1473.7's purpose: to offer relief to those persons who suffered ‘prejudicial error’ but are ‘no longer imprisoned or restrained’ and for that reason alone are unable to pursue relief on habeas corpus. [Citation.]" ( Id. at p. 525, 278 Cal.Rptr.3d 2, 485 P.3d 425.) " ‘[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.’ [Citation.] When courts engage in independent review, they should be mindful that ‘ "[i]ndependent review is not the equivalent of de novo review ...." ’ [Citation.] An appellate court may not simply second-guess factual findings that are based on the trial court's own observations. [Citations.]" ( Id. at p. 527, 278 Cal.Rptr.3d 2, 485 P.3d 425, italics omitted.)

In other words, we should "give particular deference to factual findings based on the trial court's personal observations of witnesses." ( Vivar, supra , 11 Cal.5th at pp. 527-528, 278 Cal.Rptr.3d 2, 485 P.3d 425.) Where "the facts derive entirely from written declarations and other documents, however, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, ‘[t]he trial court and this court are in the same position in interpreting written declarations’ when reviewing a cold record in a section 1473.7 proceeding. [Citation.] Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7." ( Id. at p. 528, 278 Cal.Rptr.3d 2, 485 P.3d 425, fn. omitted.)

B. The Trial Court's Rulings

As to defendant's argument under section 1016.5, "(a) Prior to acceptance of a plea of guilty or...