Filed 2/8/16 P. v. Gutierrez CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144999
v.
NOE GUTIERREZ,                                                       (San Francisco City & County
                                                                     Super. Ct. No. 223526)
         Gutierrez and Appellant.


         Noe Gutierrez appeals from an order denying his motion to withdraw his guilty
plea.1 We find no error and affirm.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         In July 2014, the San Francisco Police Department conducted an undercover
investigation in which an officer, posing online as a 14-year old girl, exchanged messages
with Gutierrez, a 24-year old male. Gutierrez arranged to meet the girl at 1000 Great
Highway at an appointed time for purposes of sexual contact, and he indicated that he
would arrive in a white Ford pickup truck. At the appointed time, undercover officers
observed Gutierrez and a companion standing next to a white Ford pickup truck. Police
arrested both men and took them to the police station. At the station, Gutierrez stated he
met a 14-year old girl online and had been chatting with her for several days. He
admitted that he went to meet the girl and intended to take her to his home in Napa for

1
  Gutierrez’s motion to withdraw his guilty plea was made under Penal Code, section
1018. All further undesignated statutory references are to the Penal Code.


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sex. At the time of his arrest, Gutierrez was on probation for a driving under the
influence (DUI) conviction and did not have a valid driver’s license.
       The San Francisco District Attorney filed a felony complaint charging Gutierrez
with, among other things, meeting a minor for lewd purposes.2 Gutierrez appeared with
his counsel at a plea hearing held on January 13, 2015. Defense counsel informed the
court that Gutierrez intended to plead guilty to an amended complaint charging him with
attempted unlawful sexual intercourse with a minor, in violation of sections 664 and
261.5.3 Before taking his plea, the court admonished Gutierrez on his rights and
informed him that “if you are not a citizen, your plea of guilty may result in your
deportation, exclusion from admission or denial of naturalization as a citizen.” Gutierrez
acknowledged this advisement, and the following colloquy ensued:
“COURT:          If you are not a citizen you have a right to contact your embassy or your
                 consulate before you enter your plea.
GUTIERREZ:       I understand.
COURT:           Have you had a chance to talk about the immigration consequences of a
                 guilty plea with your lawyer . . .?
GUTIERREZ:       Are you asking if I talked to him about the consequences regarding my
                 legal status?
COURT:           No. I’m asking if you have had a chance to speak with [counsel] about
                 the possible immigration consequences of your plea.
2
  The complaint charged Gutierrez with the following: Count I, meeting a minor for
lewd purposes (a felony in violation of § 288.4, subd. (b)); Count II, arranging a meeting
with a minor for lewd purposes (a misdemeanor in violation of § 288.4, subd. (a)(1));
Count III, driving with a license suspended for a DUI conviction (a misdemeanor in
violation of Vehicle Code, § 14601.2, subd. (a)); and, Count IV, driving without a license
(a misdemeanor in violation of Vehicle Code, § 12500, subd. (a)).
3
  Section 261.5, subdivision (a) provides: “Unlawful sexual intercourse is an act of
sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if
the person is a minor. For the purposes of this section, a ‘minor’ is a person under the age
of 18 years and an ‘adult’ is a person who is at least 18 years of age.” Under the plea,
Gutierrez avoided lifetime registration as a sex offender, and he must only register as a
sex offender for two years.


                                             2
GUTIERREZ:          Yes.
COURT:              [Counsel], have you discussed with your client the immigration
                    consequences of a guilty plea to this charge.
COUNSEL:            I haven’t—I’m not an immigration attorney. I have told him he should
                    expect the wors[t] from this. But I have gone over the language that the
                    court just read him, so he understands. It’s my belief that he
                    understands this will have a negative impact if he decides to adjust his
                    status later on.
COURT:              Are you satisfied that your client understands the possible immigration
                    consequences of a plea to this charge[?]
COUNSEL:            Absolutely. I told him he could be deported by pleading guilty to this
                    charge.
COURT:              Or denied naturalization as United States citizen or excluded from
                    admission?
COUNSEL:            Correct.”
          Gutierrez subsequently entered a plea of guilty to attempted unlawful sexual
intercourse with a minor as alleged in Count V, and the court granted the district
attorney’s motion to dismiss the remaining counts. The court found a factual basis for the
offense based on a stipulation and statement by counsel. It also found that Gutierrez had
been informed of his rights, voluntarily and intelligently waived them, and “entered the
plea of guilty well-knowing the consequences of the plea.” The court set the matter for
sentencing and referred it to the Probation Department for preparation of a presentence
report.
          Before sentencing, Gutierrez substituted his attorney, Chris Morales, with another
attorney, Emilio Parker. After obtaining a continuance of the sentencing hearing, Parker
moved to withdraw Gutierrez’s guilty plea under section 1018.4 The parties argued the

4
  Section 1018 provides in pertinent part: “On application of the defendant at any time
before judgment . . . the court may . . . for a good cause shown, permit the plea of guilty
to be withdrawn and a plea of not guilty substituted.”


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motion at a hearing held on March 30, 2015, and the court ruled as follows: “I’m
satisfied that the conversation I had with your client at the time of the plea informed the
court through your client’s own statements that he understood the possible immigration
consequences and therefore the motion is denied.”
        At a subsequent sentencing hearing held on April 30, 2015, the court suspended
the imposition of the sentence and placed Gutierrez on probation for a period of five
years, subject to certain terms and conditions. It also granted Gutierrez a certificate of
probable cause, allowing him to appeal the denial of his motion to withdraw his guilty
plea.
                                         DISCUSSION
        We begin by discussing the applicable standards governing a motion to withdraw a
guilty plea. “A defendant who moves to withdraw his plea must demonstrate good cause
by clear and convincing evidence. [Citation.]” (People v. Kunes (2014) 231 Cal. App. 4th
1438, 1443.) Whether to grant such a motion “ ‘ “rests in the sound discretion of the trial
court,” ’ ” and a denial is final “unless the defendant can show a clear abuse of that
discretion.” (People v. Fairbank (1997) 16 Cal. 4th 1223, 1254.) In this appeal, Gutierrez
claims that he demonstrated good cause to withdraw his plea because his first trial
counsel was constitutionally ineffective by failing adequately to investigate and advise
Gutierrez of the immigration consequences of his plea. We are not persuaded.
        A criminal defendant has the right to effective assistance of counsel under both the
state and federal constitutions. (People v. Breslin (2012) 205 Cal. App. 4th 1409, 1418
[citing constitutional provisions and cases].) The California Supreme Court applies a
two-part test, referred to as the “Strickland 5 test,” to evaluate ineffective assistance of
counsel claims “under either the state or federal Constitution.” (People v. Cunningham
(2001) 25 Cal. 4th 926, 1003); People v. Ochoa (1998) 19 Cal. 4th 353, 414; People v.
Osband (1996) 13 Cal. 4th 622, 664.) Under this test, “a defendant must establish (1) that
defense counsel’s performance fell below an objective standard of reasonableness, i.e.,

5
    (Strickland v. Washington (1984) 466 U.S. 668.)


                                               4
that counsel’s performance did not meet the standard to be expected of a reasonably
competent attorney, and (2) that there is a reasonable probability that the defendant would
have obtained a more favorable result absent counsel’s shortcomings. [Citations.]”
(People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
       In Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the United States Supreme
Court addressed the scope of counsel’s duty to advise a criminal defendant on the
immigration consequences of a plea. In that case, Jose Padilla, a lawful permanent
resident of the United States for over 40 years, pleaded guilty to transportation of a
substantial amount of marijuana after defense counsel told him he “ ‘ “did not have to
worry about immigration status since he had been in the country for so long.” ’ ”
(Id. at p. 359.) Subsequently, Padilla sought to undo his plea by asserting ineffective
assistance of counsel when it became clear that, as a result of his guilty plea, he faced
deportation. The Supreme Court of Kentucky rejected his argument and ruled that advice
about deportation “is merely a ‘collateral’ consequence of his conviction” and therefore
not subject to the Sixth Amendment’s guarantee of effective assistance. (Id. at pp.
359-360.)
       The United States Supreme Court disagreed. It first ruled that deportation cannot
be classified as a collateral consequence of a criminal conviction and that advice about
deportation is within “the ambit of the Sixth Amendment right to counsel.” (Id. at
p. 366.) It then confirmed that “Strickland applies” to ineffective assistance of counsel
claims based on such advice. (Ibid.) In assessing whether Padilla’s counsel’s
performance “ ‘fell below an objective standard of reasonableness’ ” under the first prong
of the Strickland test, the court observed that “[t]he weight of prevailing professional
norms supports the view that counsel must advise her client regarding the risk of
deportation.” (Id. at p. 367, italics added.) The court concluded that in “the instant case,
the terms of the relevant immigration statute are succinct, clear, and explicit in defining




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the removal consequence for Padilla’s conviction.” (Id. at p. 368)6 Thus, according to
the court, “Padilla’s counsel could have easily determined that his plea would make him
eligible for deportation simply from reading the text of the statute, which addresses not
some broad classification of crimes but specifically commands removal for all controlled
substances convictions except for the most trivial of marijuana possession offenses.
Instead, Padilla’s counsel provided him false assurance that his conviction would not
result in his removal from this country. This is not a hard case in which to find
deficiency: The consequences of Padilla’s plea could easily be determined from reading
the removal statute, his deportation was presumptively mandatory, and his counsel’s
advice was incorrect.” (Id. at pp. 368-369, italics added.)7
          Although the court found that the circumstances in Padilla amounted to “not a
hard case,” it acknowledged that immigration law “can be complex [and] is a legal
specialty of its own” and that some criminal defense attorneys “may not be well versed in
it.” (Id. at p. 369.) It accepted that there will be “numerous situations in which the
deportation consequences of a particular plea are unclear or uncertain.” In these
situations, the court found that the “duty of the private practitioner . . . is more limited.
When the law is not succinct and straightforward, a criminal defense attorney need do no
more than advise a noncitizen client that pending criminal charges may carry a risk of
adverse immigration consequences. But when the deportation consequence is truly clear,
as it was in this case, the duty to give correct advice is equally clear.” (Padilla, supra,
559 U.S. at p. 369, italics added.) Accordingly, the court concluded “Padilla has
sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland.”
(Ibid.)


6
  The high court cited 8 U.S.C. § 1227(a)(2)(B)(i), stating that any alien convicted of a
violation of any law relating to a controlled substance, other than a single offense
involving possession for one’s own use of 30 grams or less of marijuana, is deportable.
(Padilla, supra, 559 U.S. at p. 368.)
7
  In this case, Gutierrez does not claim counsel misadvised him in any way—only the
scope of counsel’s advice is at issue.


                                               6
         The circumstances here are far less compelling than they were in Padilla. Most
importantly, the immigration statute does not, as it did in Padilla, describe clearly the
conviction’s deportation consequences. The statute neither includes attempted unlawful
sexual intercourse with a minor in its list of specifically enumerated deportable offenses
nor lists sex offenses generally as a class of removable offenses. To be sure, the statute
lists crimes of moral turpitude, aggravated felonies, and crimes against children/child
abuse as classes of offenses that subject aliens to removal. (See 8 U.S.C. §§ 1227
(a)(2)(A)(i) & (iii); (a)(2)(E)(i).) But it is impossible to determine from “reading the
removal statute” (Padilla, supra, 559 U.S. at p. 369), whether Gutierrez’s conviction for
attempted unlawful sexual intercourse with a person under the age of 18 years clearly
falls into any of these broad classifications.
         Gutierrez insists that the immigration consequences of his plea are “exceedingly
‘clear’ ” because his conviction is an aggravated felony as defined under another section
of the INA.8 The INA defines “aggravated felony” to include “murder, rape, or sexual
abuse of a minor.” (See 8 U.S.C. § 1101(a)(43)(A).) But, again, the statute fails on its
face to make it apparent whether attempted unlawful sexual intercourse with a person
under 18 years constitutes sexual abuse of a minor and therefore constitutes an
aggravated felony.9 Gutierrez asserts it does, citing Matter of Juan Esquivel-Quintana,
26 I&N Dec. 469 (BIA 2015), and the Attorney General asserts it does not, citing Pelayo-
Garcia v. Holder (9th Cir. 2009) 589 F.3d 1010. In our view, the disagreement among
these authorities only highlights that the law is not “succinct, clear, and explicit.”10
(Padilla, supra, 559 U.S. at p. 368.)


8
     Immigration and Nationality Act, 8 U.S.C.A. 1101 et sequitur.
9
  In deciding whether a state crime is an aggravated felony for removal purposes, federal
appellate courts apply the three-step process outlined in Descamps v. United States
(2013) ___ U.S. ___, [133 S. Ct. 2276]. (See, e.g., Lopez-Valencia v. Lynch (9th Cir.
2015) 798 F.3d 863, 867-868 [applying Descamps test to evaluate “whether a conviction
under California’s theft statute may qualify as an ‘aggravated felony’ ” under the INA].)
10
   Gutierrez suggests defense counsel was constitutionally required to research federal
case law on the question of whether his conviction is a deportable offense, citing People

                                                 7
       Because the statute is not “succinct, clear, and explicit” that Gutierrez is
deportable on the basis of his conviction, we must conclude that counsel did not render
constitutionally ineffective assistance by failing to advise Gutierrez that his guilty plea
would necessarily result in deportation, a denial of naturalization, or an exclusion from
admission. (See Padilla, supra, 559 U.S. at p. 369 [“When the law is not succinct and
straightforward . . . a criminal defense attorney need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse immigration
consequences”].) Given the uncertainties of the applicable immigration statutes, it was
constitutionally sufficient for Gutierrez’s counsel to have advised Guitierrez that the
conviction could result in deportation. (Cf. United States v. Rodriguez-Vega (2015)
797 F.3d 781, 786 [counsel’s failure to inform Rodriguez-Vega she would be deported
for the offense of misdemeanor transportation of illegal aliens was deficient performance
because “the immigration statute expressly identifies Rodriguez-Vega’s conviction as a
ground for removal”].)
                                        DISPOSITION
       The judgment is affirmed.




v. Soriano (1987) 194 Cal. App. 3d 1470, 1482 [stating counsel’s advice was “not founded
on adequate investigation of federal immigration law”]. But even if Soriano imposed
such a requirement, it has been superseded by Padilla.

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                                _________________________
                                Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Banke, J.




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