People v. Macauley

1

THE PEOPLE, Plaintiff and Respondent, v. ALHASSAN MACAULEY, Defendant and Appellant.

B319653

California Court of Appeals, Second District, Eighth Division

August 23, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County Nos. LA021054, LA021247 Gregory A. Dohi, Judge. Reversed with directions.

Brad Kaiserman for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

STRATTON, P. J.

A trial court may vacate the criminal conviction of a noncitizen if a preponderance of the evidence establishes that the conviction 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 conviction or sentence." (Pen. Code,^[1] § 1473.7, subd. (a)(1); id., subd. (e)(1).) To establish prejudicial error defendants must demonstrate a "reasonable probability that [they] would have rejected the plea if [they] had correctly understood its actual or potential immigration consequences." (People v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar); People v Espinoza (2023) 14 Cal.5th 311, 316 (Espinoza).)

In 2021, appellant Alhassan Macauley, a citizen of Sierra Leone, filed a motion to vacate his conviction for rape, alleging his defense counsel gave him no advice as to the adverse immigration consequences of his no-contest plea. He also asserted he never would have taken the plea bargain had he known the charges compelled his deportation. The trial court denied the motion to vacate.

Since the trial court's ruling, our Supreme Court has clarified the standard of proof, disapproving the former standard used by this trial court and trial courts around the state. We therefore reverse with directions to grant the motion to vacate the conviction and withdraw the plea.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Conviction

In 1995, appellant was charged with multiple offenses arising out of an alleged sexual assault on his ex-girlfriend. In addition to being charged with rape, he was charged with anal and genital penetration by a foreign object with force and violence; forcible oral copulation, criminal threats, stalking, conspiring to dissuade a witness, and solicitation to commit a crime. On November 13, 1995, appellant pled no contest to forcible rape of his ex-girlfriend in violation of section 261, subdivision (a)(2). All remaining charges were dismissed. He was sentenced to the mid-term of six years in prison. Deportation proceedings were initiated against him based on this conviction.

During the plea colloquy, the prosecutor advised appellant, "If you are not now a United States citizen, this plea today could cause you to be deported, could result in the denial of the reentry into this country or could serve to prohibit you from becoming a United States citizen." Appellant stated that he understood the advisement.

II. 2021 Motion to Vacate

On April 14, 2014, appellant moved to vacate his conviction on the ground that he had not been advised of the immigration consequences of his plea as required by section 1016.5. The record is silent as to the ultimate disposition of the motion.

On November 5, 2021, appellant again moved to vacate his conviction and withdraw his plea, this time pursuant to section 1473.7.

III. Advice of Counsel

In support of the November 2021 motion, appellant submitted sworn declarations that his counsel never advised him of the immigration consequences of the plea. Appellant stated that the entire time he was in pretrial detention at the Los Angeles County Jail his counsel did not visit him, nor did he investigate the witnesses appellant wanted to present in his defense at trial. Instead, during a 10-minute conversation in the courthouse lockup, counsel told appellant he would go to prison for 79 years if he did not take the plea offer. Appellant's attorney never asked him about his immigration status, despite his accented English.

Prior to the plea, appellant had moved under People v. Marsden (1970) 2 Cal.3d 118 to obtain new appointed counsel. The record is unclear as to the outcome of the motion, although appellant was represented by the same attorney until the end of the case, so we surmise it was denied. In any event, appellant filed the Marsden motion to request the appointment of new counsel as he understood his present counsel had done nothing to prepare his defense for trial. He also wrote a letter to the trial court asking for a release on his own recognizance so he could retain counsel to represent him. In the letter he told the court his attorney was not communicating with him. He declared his innocence and stated the charges were trumped up by a girlfriend and prior girlfriends trying to cash in on his property which, he averred, they split among themselves after his arrest. He offered to take a lie detector test to prove his innocence.

IV. Facts Presented in the Motion

In his November 2021 motion, appellant advised that he was a citizen of Sierra Leone who entered the United States in 1977 at the age of nine. His mother and father legally resided in the United States at that time. At the time of his arrest he was 27 years old and a legal permanent resident of the United States. He had never before been arrested. He had never returned to Sierra Leone and had no contacts or known family members there. When he was charged, appellant had one 5 year-old daughter and his country of origin, Sierra Leone, was engaged in a civil war.

Appellant added that his parents and U.S. citizen siblings still reside in this country. Since his conviction he had married. His children and stepchildren were also citizens. As of June of 2004, appellant worked as a patient transport driver at DW Medical Supply/Transportation. In letters to the court appellant's employer praised him for his "kindness and personable nature," "excellent work habits," "reliability" and "excellent customer services skills."

V. The Trial Court's Hearing and Decision

On February 24, 2022, the trial court held an evidentiary hearing on appellant's motion to withdraw his plea. In addition to submitting sworn declarations and written exhibits, appellant testified that counsel never advised him of the immigration consequences of the plea; he took the plea because he wanted to see his five-year-old daughter grow up, and he would not have taken the plea had he known he would be deported because "why would I go to prison and then get deported afterwards?" This was his "first and only offense" and "first time ever in custody," according to his counsel's argument. He was isolated from family while in custody and his attorney did not visit him there. He was told that if he took the plea offer of six years, he would be out sooner to see his daughter. Unaware of the immigration consequences, he later applied for citizenship and was placed in deportation proceedings based on the conviction.

Appellant testified he wanted to defend himself against the charges and his attorney was doing nothing to investigate or prepare a defense on his behalf. He advised the court he "ended up just hav[ing] to take the plea bargain because I don't know what else is going to happen. [The attorney] said: Don't worry. You're going to waste your life in prison. This is all you've got. You've got a daughter to take care of, and this and that. And that's why I took the deal. [¶] If I knew that I was going to be deported because of taking the plea, I wouldn't have taken it because of the fact that why would I go to prison and then get deported afterwards? Because I'm going to lose the time with her and the time being somewhere else." Appellant continued: "When I tried-applied for my citizenship that's when all this situation came about with this immigration. I never knew that the immigration-what happened in 1995 was going to reflect on me today because everything I been doing, you know-matter of fact, this is one of the lessons I teach my kids. You have no reason not to be able to succeed." As for his attorney, appellant testified: "He gave me no information, no help, no assistance, no anything for me to feel that I can be represented. That's why I asked for O.R. At the time I did not know the case, O.R. was, you know. Was too low or whatever. That's all I know. I was learning because that's when-you know, being in there that's all I knew. I didn't understand the system. All I was doing was trying to be able to get out to be able to have an attorney to represent myself."

Before hearing any testimony, the trial court gave a tentative ruling: "So my tentative ruling, based on what I have before me, would be to deny the motion because there is an absence of independent evidence that Mr. Macauley would have rejected the deal had he been properly made aware of the immigration consequences. There is a lack of evidence that he- that his public defender didn't advise him properly. There is no evidence that there was a possibility of an alternative disposition that didn't carry immigration consequences. [¶] That's my tentative ruling. I would give counsel an opportunity to file a more detailed declaration."

Two weeks later on February 24, 2022, the parties reconvened for the evidentiary hearing. The court stated: "When we were here last, I urged counsel to take a look at the Vivar, V-i-v-a-r, case, 2021, 11 Cal.5th, 510, which is, I think the latest guidance from the Supreme Court as to how I'm supposed to interpret the statute. And it requires that the moving party, in addition to showing that the...