People v. Magana

THE PEOPLE, Plaintiff and Respondent, v. DIMAS MAGANA, Defendant and Appellant.

No. A164224

California Court of Appeals, First District, Second Division

December 29, 2022

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. SC061828D

STEWART, P.J.

Dimas Magana was convicted of possession of ephedrine with intent to manufacture methamphetamine on a plea of no contest in 2006. In 2021, he moved to vacate the conviction pursuant to Penal Code section 1473.7,^[1] which permits individuals who are no longer in custody to move to vacate a conviction or sentence on the ground that it 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" the plea. (§ 1473.7, subd. (a)(1).) He appeals from the denial of this motion. We affirm.

BACKGROUND

I.

The 2006 conviction

According to the 2006 probation report, Magana and four codefendants were found in the "rear house" of a residence where police were executing a search warrant for evidence related to methamphetamine manufacture. In the same location, police found evidence related to an" 'extraction lab,' a process whereby pseudoephedrine is extracted from commercially available cold pills containing this substance which is later used in the manufacturing of methamphetamine." The police found approximately 14.63 kilograms of pseudoephedrine pills (about 200,000), 880 grams of cocaine, 1.99 kilograms of methamphetamine and 350 grams of marijuana. Two loaded guns were located and $25,885 in cash was seized. A conversation between Magana and his wife revealed that he had $35,000 in cash hidden in a suitcase at his house, an amount the probation officer said could not be accounted for by Magana's salary. Magana claimed he was not involved and felt sorry for being at his codefendant's house. The probation officer stated however, that the amount of controlled substances, loaded weapons and large amount of cash "clearly indicated [Magana] was in an environment of criminal sophistication and professionalism" and the toxic fumes in the lab "would have made any uninvolved person leave." One of the police officers reported that his throat began to burn due to chemical fumes in the lab.

Magana was charged with seven felonies: Unlawful possession of methamphetamine for sale (Health &Saf. Code, § 11378), with two alleged enhancements for weight (id., § 11370.4, subd. (b)(1); § 1203.073 subd. (b)(2)) and an allegation that Magana was personally armed with a firearm (§ 120222, subd. (c)); unlawful possession of cocaine for sale (Health &Saf. Code, § 11351), with alleged enhancements for weight (§ 1203.073, subd. (b)(1)) and arming (§ 12022, subd. (c)); possession of marijuana for sale (Health &Saf. Code, § 11359; possession of cocaine while armed with a loaded and operable firearm (id., § 11370.1, subd. (a)); possession of methamphetamine while armed with a loaded operable firearm (id., § 11370.1, subd. (a)); possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine (id., § 11383, subd. (c)(1));^[2] and unlawful manufacture of methamphetamine (id., § 11379.6, subd, (a)), with an arming allegation (§ 12022, subd. (c)).

Pursuant to a plea agreement, Magana pleaded no contest to the count of possessing ephedrine with intent to manufacture methamphetamine in exchange for a two-year prison sentence and dismissal of the other charges. The plea form Magana signed, written in Spanish, stated, "Entiendo que si no soy ciudadano de los Estados Unidos, la condena por el delito del que se me acusa tendra como resultado que me deporten, y en que se me prohiba la entrada a los Estados Unidos, y me nieguen la naturalizacion." This advisement translates to: "I understand that if I am not a citizen of the United States, conviction of the crime with which I am charged will result in my deportation, and in my being barred from entering the United States and denied naturalization." (DeepL Translate [as of Dec. 28, 2022]; Google Translate [as of Dec. 28, 2022] ["conviction . . . will result in my being deported, barred from entering the United States, and denied naturalization].)

The record does not include a reporter's transcript for the plea hearing. The minute order states that Magana was "advised of provisions of [section] 1016.5 [Penal Code] (Deportation)." Section 1016.5 requires a court, prior to accepting a plea of guilty or nolo contendere, to advise the defendant, "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged 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."

Magana was subsequently sentenced to two years in prison, the lower term for his offense.

II. The Current Motion to Vacate

On September 16, 2021, Magana filed a motion to withdraw his plea pursuant to section 1473.7, arguing that he entered the plea with the understanding that it "provided no immigration consequences" when in fact the conviction "causes serious immigration consequence[s] including removal." The motion emphasized the complexity of immigration law and stated that the Ninth Circuit did not clarify that a section 11383, subdivision (c)(1), conviction is categorically a drug trafficking aggravated felony (8 U.S.C. § 1101(a)(43)(B)) until 2010, several years after Magana's plea.

Magana's declaration in support of his motion stated that at the time of his plea, he did not "meaningfully understand" that the conviction "could become a permanent removable offense years after" his plea; he did not receive detailed advice based on his "specific situation and background" about the potential immigration consequences of his case; "[o]ne of the determinative factors in the decision to accept or reject a plea offer was not having immigration consequences"; he would not have accepted the plea if he had known the conviction "could result in mandatory removal and denial of benefits for [his] entire life"; and "[t]he right to remain in the United States was more important to [him] than any additional potential jail sentence since there is a high likelihood that [he] will be in immigration detention while waiting for [his] removal proceedings in immigration court." Magana declared that he had "strong family, community ties, obligations, and opportunities" in the United States; at the time of his plea, he and his family "would have faced extreme hardship if [he] was forced to return to [his] country"; at that time, he had two "U.S. citizen children and gainful employment opportunities," had come to the United States in the "early 1980s" after his father was killed "by criminals" in Michoacan, Mexico, which was and remained a "very dangerous place," and he "would not have knowingly risked all that by pleading to a charge that had mandatory removal for life"; he had not had further trouble with the law; and "there was little to gain by accepting the plea offer, if [he is] forced to return to [his] country and spend years in immigration custody."

After a hearing at which counsel argued the motion but no additional evidence was presented, the trial court denied the motion. The trial court ruled that Magana's factual showing was insufficient to meet his burden under section 1473.7. The court viewed Magana's declaration as largely conclusory, lacking facts to support his assertion that he was not properly advised of the immigration consequences of his plea facts regarding his immigration status, or contemporaneous evidence supporting his assertion that he would not have entered the plea if he had properly understood its consequences. The court was not persuaded by Magana's argument that his offense only became an aggravated felony as a result of the 2010 decision he cited, which the court read as reiterating what had been established law for years.

DISCUSSION

I. Principles Governing a Section 1473.7 Motion to Vacate

As the California Supreme Court has explained, "[w]hen long-standing noncitizen residents of this country are accused of committing a crime, the most devastating consequence may not be a prison sentence, but their removal and exclusion from the United States. (See People v Martinez (2013) 57 Cal.4th 555, 563 (Martinez).) Because the prospect of deportation 'is an integral part,' and often even 'the most important part,' of a noncitizen defendant's calculus in responding to certain criminal charges (Padilla v. Kentucky (2010) 559 U.S. 356, 364 (Padilla)), both the Legislature and the courts have sought to ensure these defendants receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient. (E.g., Pen. Code, §§ 1016.2 et seq., 1473.7; Jae Lee v. United States (2017) [582] U.S. , 198 L.Ed.2d 476 (Lee); Padilla, at p. 360, 130 S.Ct. 1473; Martinez, at p. 559; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798.)" (People v. Vivar (2021) 11 Cal.5th 510, 516 (Vivar).)

Section 1473.7, subdivision (a)(1), provides that "[a] person who is no longer in criminal custody may file a motion to vacate a conviction" on the ground that it "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. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." The moving party must also establish that "the conviction or sentence being challenged is currently causing or...