People v. Phong Phuc Le

1

THE PEOPLE, Plaintiff and Respondent, v. PHONG PHUC LE, Defendant and Appellant.

G061159

California Court of Appeals, Fourth District, Third Division

May 16, 2023

NOT TO BE PUBLISHED

Appeal from a post-judgment order of the Superior Court of Orange County No. 94CF2789 Terry K. Flynn-Peister, Judge. Reversed and remanded with directions.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

William J. Capriola, under appointment of the Court of Appeal, for Defendant and Appellant.

OPINION

DELANEY, J.

Phong Phuc Le appeals from a post-judgment order denying his motion to vacate his voluntary manslaughter conviction and withdraw his guilty plea pursuant to Penal Code section 1473.7.^[1] Le contends he did not understand the immigration consequences of his plea and conviction. As discussed below, we conclude Le has shown he did not meaningfully understand the immigration consequences of his guilty plea and suffered prejudice as a result. Accordingly we reverse and remand with directions to grant his section 1473.7 motion.

I FACTUAL AND PROCEDURAL BACKGROUND

A. Guilty Plea and Conviction

On November 28, 1995, an information was filed charging Le with murder (§ 187, subd. (a)) and active participation in a criminal street gang (§ 186.22, subd. (a)), and alleging both crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). On November 30, 1995, in exchange for dismissal of those charges, Le pleaded guilty to one count of voluntary manslaughter (§ 192, subd. (a)).

In his written plea form, Le wrote the factual basis for his plea was that "[o]n August 6, 1993, I aided and abetted another in the killing of a human being without malice aforethought in Orange County with the intent to kill." He initialed the box next to the sentence: "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Le signed under the statement that he had "read, understood, and personally initialed each item above and discussed them with my attorney." His attorney also signed the plea form, stating he had "explained each of the above rights to the defendant."

Pursuant to the negotiated disposition, the trial court sentenced Le to three years on the manslaughter conviction. It deemed Le had served his time in custody and ordered him to report to parole.

B. Section 1473.7 Motion

On January 5, 2022, Le filed a motion to vacate his manslaughter conviction pursuant to section 1473.7. In the motion, he asserted that he did not meaningfully understand the immigration consequences of his guilty plea, and he would never have entered the plea if he had known that it would render him deportable. In a supporting declaration, Le stated he was born on February 7, 1975, in Vietnam. In 1982, when Le was seven years old, he and his entire family came to the United States as refugees. Le attended elementary, middle and high school in Orange County. On August 6, 1993, when Le was 18 years old, he was arrested for an alleged gang murder. "The crime that was the basis for the charges in this case took place in the street, but I was in the church parking lot, parked, and in my vehicle. Because of my past, it was easy to believe that I was involved."

Public defender Brian Ducker was appointed to represent Le in the case. Le stated that on November 30, 1995, he met with Ducker while in custody. Ducker convinced Le to accept a guilty plea to voluntary manslaughter for aiding and abetting, stating "it was a good deal because I had been incarcerated for 'far too long' and if I accepted, I would be released from jail that same day." "I believed that the conviction was unfair as I was simply at the wrong place at the wrong time, but I felt hopeless [because] I had no options and I had already spent a very long time in jail fighting my case." Le stated that Ducker did not ask him whether he was an immigrant and as a result never informed him there would be immigration consequences to his plea.

After his conviction, the Department of Homeland Security detained him in November 1997 and placed him in removal proceedings. On July 28, 1999, an immigration judge ordered Le's removal from the United States, but because Vietnam was not accepting deportees at that time, he was released. Subsequently, in 2016, he married his wife and in 2018, his daughter was born. Recently, his father was diagnosed with prostate cancer, and Le became his primary caregiver.

Le stated that "[d]espite having signed plea forms that advised me that I may have immigration consequences [because of the guilty plea], it was never clear to me that I would since Mr. Ducker never mentioned any immigration consequences to me. As [a] result, I believed there would be none." Le asserted: "If I had known the consequences of my plea, I would have insisted that Mr. Ducker obtain an alternative plea, even if it meant more jail time, because more jail time would have been nothing compared to permanent separation from my family and permanent banishment to a country we fled from. If I could not obtain a charge that would have prevented my deportation, I would have insisted on taking my chances at trial....I know my entire family would have supported my decision because they would have known I was fighting for my future in the U.S. and if I was deported to Vietnam my life was in danger." Le explained: "At the time of my plea in this case, I had so much to lose by my deportation. I was brought here as a refugee at the age of 7 and was a lawful permanent resident. All of my family lived in the U.S. I grew up in the United States and attended schools here and I lacked any ties to my country of . . . birth, Vietnam."

Le's attorney Ducker filed a declaration stating that he did not recall "inquiring or confirming the immigration status of Mr. Le." He further stated: "I do not recall whether the immigration consequences of the plea were discussed with Mr. Le prior to advising him to plea guilty to the manslaughter charge."

Respondent did not file a written opposition, but voiced its opposition at the February 4, 2022 hearing on Le's section 1473.7 motion. The trial court denied the motion without prejudice, finding that "[i]t is not clear from the [submitted] materials that the defendant would have chosen to go to trial had he been aware of the immigration consequences. [¶] The record also seems to indicate that it is highly unlikely [Le] would have been able to negotiate an immigration neutral plea deal at that time that the People would have accepted. [¶] These are extremely serious charges. And looking at the charges, he got a very good negotiated disposition. And the facts, at least on the record, to this Court make it look like while immigration consequences may have been important to him, I do not have any evidence from this that they would have overwhelmed and changed how he acted on this."

II DISCUSSION

A. Applicable Law

Section 1473.7 provides in relevant parts that "[a] person who is no longer in criminal custody may file a motion to vacate a conviction or sentence" "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." (§ 1473.7, subd. (a)(1).) "A defendant requesting relief under section 1473.7 bears the burden of establishing by a preponderance of evidence that there is a reasonable probability that he or she would not have entered into the plea agreement if he or she had meaningfully understood the associated adverse immigration consequences." (People v. Rodriguez (2021) 60 Cal.App.5th 995, 1003.) Stated differently, "[t]he defendant must first show that he did not meaningfully understand the immigration consequences of his plea. Next, the defendant must show that his misunderstanding constituted prejudicial error." (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)

We independently review an order denying a section 1473.7 motion. (People v. Vivar (2021) 11 Cal.5th 510, 527 (Vivar).) "'[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.' [Citation.]" (Id. at p. 527.) "In section 1473.7 proceedings, appellate courts should . . . give particular deference to factual findings based on the trial court's personal observations of witnesses. [Citation.] Where, as here, 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.]." (Id. at pp. 527-528.)

B. Appellant Has Shown "Error" Under Section 1473.7

Here the record establishes that Le did not meaningfully understand or knowingly accept the immigration consequences of his plea. As Le stated in his declaration, although he was advised that there may be immigration consequences, his attorney never advised him that there would be immigration consequences. As a result, he believed there would be no immigration consequences. Le further stated that had he known of the adverse immigration consequences of the plea, he would have...