People v. Carrillo

319 Cal.Rptr.3d 334

The PEOPLE, Plaintiff and Respondent,

v.Francisco CARRILLO, Defendant and Appellant.

F084751

Court of Appeal, Fifth District.

Filed March 15, 2024

APPEAL from an order of the Superior Court of Madera County. Dale J. Blea, Judge. (Super. Ct. No. MCR09130)

Law Office of Jeremy M. Dobbins and Jeremy M. Dobbins, Fresno, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FRANSON, J.

Penal Code section 1473.7¹ became effective on January 1, 2017, and authorized motions to vacate a plea of guilty or nolo contendere on the ground the defendant did not meaningfully understand the adverse immigration consequences of a plea. Since then, the Fifth District has decided 25 appeals involving the denial of such a motion. This case is unlike the earlier appeals for two reasons.

First, appellant Francisco Carrillo’s motion seeks to vacate a conviction that resulted from a trial, not a plea. Motions addressing a conviction or sentence after trial first became available on January 1, 2022, when an amendment expanded section 1473.7, subdivision (a)(1) to reach misunderstandings of the immigration consequences of "a conviction or sentence" instead of just "a plea of guilty or nolo contendere." (Cf. Stats. 2021, ch. 420, § 1, with Stats. 2020, ch. 317, § 5.)

Second, Carrillo’s conviction and sentence qualified him for mandatory deportation only after he later admitted a probation violation and the additional jail time caused his total term of imprisonment to exceed one year, and thus became an aggravated felony. Under the Immigration and Nationality Act (INA; 8 U.S.C. § 1101, it seq.), Carrillo’s conviction for assault with a firearm is classified as a "crime of violence," but such crimes are "aggravated felonies" only if a "term of imprisonment" of one year or more is imposed. (8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(a) [definition of a crime of violence].) Federal courts interpret "term of imprisonment" to include time in jail for a probation violation.

Thus, Carrillo’s 2002 conviction and sentence to 301 days in jail met the INA’s definition of an aggravated felony only after he admitted a probation violation in 2007 and was ordered to serve an additional 90 days in jail.

The foregoing circumstances raise novel issues of statutory construction. First, to align the state statute with federal immigration law, we interpret the word "sentence" used in section 1473.7, subdivision (a)(1) to encompass the entire "term of imprisonment," as that phrase is used in the INA. Thus, a section 1473.7 motion may be based on the defendant’s failure to meaningfully misunderstand or defend against the "actual or potential adverse, immigration consequences of" the additional incarceration imposed for a probation violation. (§ 1473.7, subd. (a)(1).)

Second, we address how a defendant may establish his or her error was "prejudicial" for purposes of section 1473.7, subdivision (a)(1) when adverse immigration consequences are caused by the admission of a probation violation and the incarceration imposed for that violation. In that context, prejudice may be established by demonstrating that, had the defendant been aware of the immigration consequences, (1) there is a reasonable probability he or she would not have admitted the probation violation or (2) there is a reasonable probability that an immigration-neutral punishment would have been available and obtained by the defendant. For example, a defendant might be able to "defend against" (§ 1473.7, subd. (a)(1)) the additional incarceration imposed for a probation violation and obtain an immigration-neutral punishment by waiving time credits from his earlier incarceration.

Third, on the question of the relief available under section 1473.7, subdivision (a)(1), we interpret the statute as authorizing an order vacating (1) the initial conviction, (2) the sentence imposed for the initial conviction, (3) a subsequent admission of a probation violation, (4) the additional incarceration imposed for a probation violation, or (5) some combination of the foregoing. As explained below, a motion could challenge the admission of the probation violation, the additional incarceration imposed for the violation, or both.

Based on the foregoing interpretations, we conclude the 2021 amendment abrogated an earlier case concluding that a section 1473.7 motion cannot be used to challenge the admission of a probation violation. (See People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 221, 237 Cal.Rptr.3d 873 (Cruz-Lopez) [probation violation was not a guilty plea that could be withdrawn because of a misunderstanding of the immigration consequences].)

Here, a preponderance of the evidence shows Carrillo did not "meaningfully understand … the … potential adverse immigration consequences of a conviction or sentence" at the time of his conviction, (§ 1473.7, subd. (a)(1).) However, his moving papers have not demonstrated this error was "prejudicial." (§ 1473.7, subd. (a)(1); see People v. Vivar (2021) 11 Cal.5th 510, 529, 278 Cal.Rptr.3d 2, 485 P.3d 425 [definition of prejudicial error] (Vivar).)

Carrillo’s motion focused on how he defended against a "conviction" and did not contend he would have taken a different path in defending against (1) the terms of the sentence imposed in 2002, (2) the probation violation admitted in 2007, or (3) the additional period of incarceration imposed after he admitted the probation violation. Because this opinion clarifies how the 2021 amendment of section 1473.7 applies to these circumstances, we conclude Carrillo should not be precluded from pursuing a new motion under section 1473.7, subdivision (a)(1) that asserts grounds omitted from his original motion.

We therefore modify the order denying the section 1473.7 motion to be without prejudice and affirm it as modified.

FACTS AND PROCEEDINGS

Personal Details

Carrillo was born in Mexico in September 1981. His March 2022 declaration in support of his section 1473.7 motion states that he was granted lawful permanent resident status in December 1999; he is married and has four children (ages 18, 15, 9 and 6 years old) who are United States citizens; he has maintained gainful employment to support his family and pay taxes; and he currently works as a lead technician at a company that manufactures irrigation equipment. The declaration asserts that Carrillo currently is in removal proceedings in immigration court and that removal from the United States "would cause severe financial and emotional hardships on my family." Carrillo states that he is "as deeply sorry for my actions today as [h]e was 20 years ago" and asked the court to "take into account the responsible father, husband, and hard worker, that [he has] become."

[1] Further details about Carrillo’s personal life are not provided by his March 2022 declaration.² For instance, it does not describe what occurred between his birth and when he became a lawful permanent resident. We note that Carrillo’s reply to the opposition to his section 1473.7 motion stated he had resided in the United States since he was 11 years old, and he attended and graduated from Madera High School. However, factual assertions made by an attorney in a reply are not evidence and our review of the 87-page clerk’s transcript did not locate the document cited in the reply as support.

The Charges

In July 2001, about two months before his 20th birthday, a 17-count criminal complaint was filed in Madera County Superior Court alleging that on June 30, 2001, Carrillo attempted to murder eight persons. The complaint also alleged one count of an unlawful threat in violation of section 422 and eight counts of unlawful assault with a firearm in violation of section 245, subdivision (a)(2). A special allegation stated Carrillo used a .38-caliber handgun in committing the offenses. Following a preliminary hearing, Carrillo was not held to answer on the attempted murder counts.

After the attempted murder counts were eliminated, the district attorney filed an information charging Carrillo with unlawfully assaulting eight persons "with a .380 semiautomatic pistol" in violation of section 245, subdivision (b) and one count of an unlawful threat in violation of section 422. Assault with a semiautomatic firearm in violation of section 245, subdivision (b) carries a maximum sentence of nine years in state prison. In comparison, the lesser included offense of assault with a firearm in violation of section 245, subdivision (a)(2) carries a maximum sentence of four years in state prison.

The Conviction

Carrillo retained Eric Schweitzer as defense counsel and took the case to trial. On March 1, 2002, a jury found Carrillo not guilty of violating section 245, subdivision (b) and found him guilty on six counts of the lesser-included offense of violating section 245, subdivision (a)(2). The jury also found true the allegations in all six counts that Carrillo used a firearm within the meaning of section 12022.5, subdivisions (a) and (d). The seventh and ninth counts were dismissed on the motion of the People in furtherance of justice.

On April 26, 2002, the trial court suspended the imposition of sentence, granted formal probation for a term of five years, and ordered Carrillo to serve 301 days in the county jail, with a credit for 301 days.³ The terms and conditions of probation include submitting to alcohol testing at the discretion of any peace officer, not possessing or using alcohol, and attending substance abuse counseling. The minute order from the hearing shows that Carrillo was present with his attorney, Schweitzer, and did not use an interpreter.

Probotion Violation

In April 2007, near the end of Carrillo’s probation, a petition to revoke his probation was filed. It alleged that about 21 months earlier, on July 1,...