Filed 12/18/15 P. v. Asghedom CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BINIAM ASGHEDOM,

Defendant and Appellant.

 H040563

 (Santa Clara County

 Super. Ct. No. 127937)

Defendant Biniam Asghedom appeals from the trial court’s order denying his 

Penal Code section 1016.5 motion to vacate his 1989 conviction for possession of 

cocaine base for sale (Health & Saf. Code, § 11351.5). He claims that the trial court 

abused its discretion in finding that he had failed to show prejudice. We find that the trial 

court abused its discretion in finding that defendant had failed to show prejudice, and we 

remand the matter to the trial court for it to resolve whether defendant made the required 

showing of reasonable diligence.

I. Background

Defendant is a native and citizen of Eritrea. He has been a lawful permanent 

resident of the United States since 1981 when he was 12 years old. Defendant’s 1989 
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conviction arose from an event that occurred in December 1988 when he was 20 years 

old. 

The following evidence was produced at the preliminary examination. On the 

evening of December 13, 1988, uniformed police officers witnessed a hand-to-hand 

exchange between defendant and another man in a driveway. When the men saw the 

officers, they ran. The four officers pursued both men, who ran in the same direction. As 

the two men were running away, one of the pursuing officers saw defendant reach into 

his waistband and drop a loaded handgun on the ground. This officer also saw defendant 

throw a plastic baggie onto the porch of a residence and sit down on the porch. The 

baggie contained 10 to 15 rocks of cocaine base weighing a total of 2.34 grams. The 

rocks were not individually packaged. The officer noticed that defendant was under the 

influence of cocaine and arrested him. Along the route of the pursuit, the officer found 

defendant’s wallet. On top of the wallet was a glass pipe that contained cocaine residue. 

The wallet did not contain a large amount of cash. 

Defendant was charged by information with felony possession of cocaine base for 

sale, misdemeanor being under the influence of a controlled substance (Health & Saf. 

Code, § 11550), and misdemeanor possession of controlled substance paraphernalia 

(Health & Saf. Code, § 11364). The information also alleged that defendant had been 

armed with a firearm in the commission of the felony count (Pen. Code, § 12022, 

subd. (a)). 

In July 1989, the court gave an indicated sentence of probation, and defendant 

pleaded guilty to all three counts and admitted the arming enhancement allegation. There 

is no indication in the record that defendant was advised of the immigration 

consequences of his pleas and admission. Defendant admitted to the probation officer 

that he had been under the influence of cocaine when he was arrested. However, he also 

told the probation officer “a very convincing story of being mis-identified as the owner of 

both the gun and the cocaine found.” 
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In August 1989, the court suspended imposition of sentence and placed defendant 

on formal probation for three years conditioned on service of a one-year jail term. In 

1992, defendant admitted violating his probation by failing to maintain contact with his 

probation officer and testing positive for cocaine, and his probation was modified, 

reinstated, and extended on condition that he serve an additional 60 days in jail. 

In September 2004, defendant returned to the United States after an overseas trip 

and was “not admitted” based on the 1989 felony conviction. Nevertheless, he was 

apparently allowed to enter and remain in the United States. In February 2005, based on 

his 1989 conviction, defendant was “charged” with being “subject to removal” and 

ordered to appear “for Immigration Review” on a date “To Be Determined.” Defendant 

was not detained until February 2013. At some point between February 2005 and 

February 2013, defendant became subject to a deportation order and an “ICE 

[Immigration and Customs Enforcement] hold.” In February 2013, he was detained and 

incarcerated in Alabama pending removal proceedings. By that time, defendant had an 

adult daughter who is a United States citizen. 

In October 2013, defendant filed a Penal Code section 1016.5 motion seeking to 

vacate the 1989 convictions and permit him to withdraw his pleas and admission. He 

submitted a declaration in which he asserted that he had not been given immigration 

advisements and “would have reconsidered my decision to plead guilty had I been 

informed” of the immigration consequences. The prosecution opposed the motion on the 

grounds that defendant could not prove prejudice from the lack of advisements and that 

he had failed to show reasonable diligence in bringing the motion. It conceded that 

defendant had not been given the advisements and was currently subject to adverse 

immigration consequences. 

At the hearing on defendant’s motion, his trial counsel argued that “defendant may 

well have fought the criminal charge with a hope of winning rather than conceding the 

charge with a certainty of being deported.” The prosecutor argued that the court should 
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deny the motion based on defendant’s failure to show reasonable diligence. The court 

responded: “Well, let me play a little devil’s advocate. What happened to him in 2004? 

I mean, he wasn’t deported. The proceedings weren’t beginning. I mean, couldn’t that 

just be just a good argument to say, ‘Why would you be on notice? Nothing happened 

before. Why -- why should I worry about it?’” The court made no ruling on the 

reasonable diligence issue. Instead, the court denied defendant’s motion on the ground 

that he “had failed to show prejudice” because he did not “present sufficient credible 

evidence that he would not have pleaded guilty had he been properly advised of the 

immigration consequences.” Defendant timely filed a notice of appeal. 

II. Discussion

Penal Code section 1016.5 mandates that, before accepting a guilty or no contest 

plea, the court must advise the defendant that the plea “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.” (Pen. Code, § 1016.5, subd. (a).) “If, after 

January 1, 1978, the court fails to advise the defendant as required by this section and the 

defendant shows that conviction of the offense to which defendant pleaded guilty or nolo 

contendere may have the consequences for the defendant of deportation, exclusion from 

admission to the United States, or denial of naturalization pursuant to the laws of the 

United States, the court, on defendant’s motion, shall vacate the judgment and permit the 

defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not 

guilty. Absent a record that the court provided the advisement required by this section, 

the defendant shall be presumed not to have received the required advisement.” (Pen. 

Code, § 1016.5, subd. (b).) 

“To prevail on a motion brought pursuant to Penal Code section 1016.5, a 

defendant must establish: (1) he or she was not properly advised of the immigration 

consequences as provided by the statute; (2) there exists, at the time of the motion, more 
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than a remote possibility that the conviction will have one or more of the specified 

adverse immigration consequences; and (3) he or she was prejudiced by the 

nonadvisement, i.e., if properly advised, he or she would not have pleaded guilty or nolo 

contendere.” (People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) The defendant 

also bears the burden of proving reasonable diligence in bringing the motion. (People v. 

Totari (2003) 111 Cal.App.4th 1202, 1208 (Totari).) We review the superior court’s 

denial of the motion for abuse of discretion. (People v. Chien (2008) 159 Cal.App.4th 

1283, 1287.) 

“ ‘[O]ne of the essential attributes of abuse of discretion is that it must clearly 

appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the 

court exceeds the bounds of reason, all of the circumstances before it being considered.’ ” 

(Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) “The abuse of discretion standard 

is not a unified standard; the deference it calls for varies according to the aspect of a trial 

court’s ruling under review. The trial court’s findings of fact are reviewed for substantial 

evidence, its conclusions of law are reviewed de novo, and its application of the law to 

the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court

(2008) 43 Cal.4th 706, 711-712, fns. omitted.)

A. Standard of Proof

Defendant contends that the trial court applied the wrong standard of proof.

1

 The 

court’s written order stated that defendant “failed to show prejudice” because he did not 

“present sufficient credible evidence that he would not have pleaded guilty had he been 

properly advised of the immigration consequences.” Defendant asserts that the “clear 

 

1

Defendant’s brief refers to the “BURDEN OF PROOF,” but it is clear that he is 

actually asserting that the court failed to apply the correct standard of proof. The trial 

court unquestionably applied the correct burden of proof by placing that burden on 

defendant.
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implication” of the trial court’s language was that it was applying a “preponderance of 

the evidence” standard of proof rather than a “reasonably probable” standard of proof. 

Defendant relies on People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183 

(Zamudio). In Zamudio, the California Supreme Court agreed that the defendant “must 

show . . . that, properly advised, he would not have pleaded no contest in the first place.” 

(Zamudio, at p. 192.) This statement concerned the burden of proof. The court also 

stated in Zamudio: “Whether defendant was prejudiced by the trial court’s incomplete 

advisements is a factual question, appropriate for decision by the trial court in the first 

instance. . . . ‘[W]hen the only error is a failure to advise of the consequences of the 

plea . . . [the] court must determine whether the error prejudiced the defendant, i.e., 

whether it is “reasonably probable” the defendant would not have pleaded guilty if 

properly advised.’” (Zamudio, at p. 210.) This statement concerned the standard of 

proof.

The California Supreme Court’s statements in Zamudio illustrate that the

requirement that a defendant “show” that he “would not have pleaded” guilty if properly 

advised concerns the burden of proof, which is on the defendant, not the “reasonably 

probable” standard of proof that the court applies to the required showing. The trial 

court’s statement in this case that defendant had “failed to present sufficient credible 

evidence” said nothing about the standard of proof that the court was applying to 

determine whether defendant had met his burden of proof. Nor did the prosecutor 

mislead the trial court as to the applicable standard of proof; the prosecutor accurately

and expressly relied on the standard of proof set forth in Zamudio. 

We find no basis for defendant’s claim that the trial court applied the wrong 

standard of proof since nothing in its order suggested that it was applying anything other 

than the standard set forth by the California Supreme Court in Zamudio. “The general 

rule is that a trial court is presumed to have been aware of and followed the applicable 

law.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) We apply that presumption 
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here, since the applicable standard of proof is well established, the prosecutor referenced 

it in his pleadings, and the trial court’s order was not facially inconsistent with the 

application of the correct standard of proof.

B. Abuse of Discretion

Defendant claims that the trial court abused its discretion in finding that he had not 

satisfied his burden of showing prejudice. 

“[P]rejudice is shown if the defendant establishes it was reasonably probable he or 

she would not have pleaded guilty if properly advised.” (People v. Martinez (2013) 57 

Cal.4th 555, 559 (Martinez).) “The test for prejudice thus considers what the defendant 

would have done, not whether the defendant’s decision would have led to a more 

favorable result.” (Martinez, at p. 562.) “The defendant thus must convince the court he 

or she would have chosen to lose the benefits of the plea bargain despite the possibility or 

probability deportation would nonetheless follow.” (Martinez, at p. 565.) “[T]he 

defendant bears the burden of establishing prejudice. (Zamudio, supra, 23 Cal.4th at 

p. 210.) To that end, the defendant must provide a declaration or testimony stating that 

he or she would not have entered into the plea bargain if properly advised. It is up to the 

trial court to determine whether the defendant’s assertion is credible, and the court may 

reject an assertion that is not supported by an explanation or other corroborating 

circumstances.” (Martinez, at p. 565.) 

“[I]n determining the credibility of a defendant’s claim, the court in its discretion 

may consider factors presented to it by the parties, such as the presence or absence of 

other plea offers, the seriousness of the charges in relation to the plea bargain, the 

defendant’s criminal record, the defendant’s priorities in plea bargaining, the defendant’s 

aversion to immigration consequences, and whether the defendant had reason to believe 

that the charges would allow an immigration-neutral bargain that a court would accept.” 

(Martinez, supra, 57 Cal.4th at p. 568.) “[T]he critical question is whether the defendant 
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would have rejected the plea bargain, not what the outcome of that decision would have 

been.” (Ibid.)

Defendant’s declaration was not precisely consistent with the requirement that he 

provide a “declaration or testimony stating that he or she would not have entered into the 

plea bargain if properly advised.” (Martinez, supra, 57 Cal.4th at p. 565, italics added.) 

His declaration stated that he “would have reconsidered my decision to plead guilty” if 

properly advised. (Italics added.) While his declaration suggested that he might have 

chosen not to enter his pleas and admission if properly advised, it did not state that he 

would have chosen otherwise. However, since he was required to show only that it was 

reasonably probable that he would have chosen not to enter his pleas and admission, the 

precise wording of his declaration could not have been fatal to his claim. The trial court 

was required to examine the other relevant factors to determine whether it was reasonably 

probable that defendant’s reconsideration would have led him to choose not to enter his 

pleas and admission.

It is true, as the Attorney General points out, that when defendant entered his pleas 

and admission, he was facing a prison term of three, four, or five years for the possession 

for sale count plus another year for the arming enhancement. (Stats. 1987, ch. 1174, § 3, 

eff. in September 1987 [former Health & Saf. Code, § 11351.5]; Stats. 1982, ch. 142, § 4, 

p. 477 [former Pen. Code, § 12022].) However, as defendant had no prior criminal 

record whatsoever, a disposition other than probation was highly unlikely. One relevant 

factor was the fact that defendant’s pleas and admission were not entered as part of a plea 

bargan. Probation was the “indicated sentence,” which confirms that probation was the 

sentence that defendant could expect regardless of whether he pleaded guilty or was 

convicted of all charges after a trial. “[T]he indicated sentence must be the same 

punishment the court would be prepared to impose if the defendant were convicted at 

trial. An indicated sentence, properly understood, is not an attempt to induce a plea by 

offering the defendant a more lenient sentence than what could be obtained through plea 
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negotiations with the prosecuting authority.” (People v. Clancey (2013) 56 Cal.4th 562, 

575.) Since the indicated sentence of probation was what defendant could expect 

regardless of whether he pleaded guilty or went to trial, the trial court could only have 

concluded that defendant did not receive any benefit by pleading guilty. 

None of the remaining relevant factors provided any support for the trial court’s 

finding that it was not reasonably probable that defendant would not have entered his 

pleas and admission if he had been advised of the immigration consequences. Defendant 

produced no affirmative evidence that immigration consequences were one of his 

priorities at the time of his 1989 pleas and admission, but the evidence compelled such an

inference. Defendant was barely 20 years old and had lived in this country since he was 

12 years. Since he had nothing to gain by pleading guilty, as he could expect to be 

granted probation whether he pleaded or not, the only reasonable inference that the trial

court could draw was that it was reasonably probable that, if he had known that his guilty 

pleas and admission would threaten his permanent resident status, he would not have 

entered the pleas and admission. It was also a relevant factor that defendant denied his 

guilt on the felony count and was able to provide “a very convincing story of being misidentified.” The court could not reasonably conclude that this factor did not support 

defendant’s petition. 

Thus, all of the relevant factors supported defendant’s assertion that it was 

reasonably probable that he would have chosen not to enter his pleas and admission if he 

had been advised of the immigration consequences. Because all of the evidence 

supported defendant’s position, the trial court’s contrary finding exceeded the bounds of 

reason under the circumstances and therefore constituted an abuse of discretion.

The Attorney General contends that we should nevertheless affirm the trial court’s 

order because defendant failed to establish reasonable diligence even though the trial 

court made no finding on reasonable diligence. “The issue of diligence is particularly 

fact dependent.” (Totari, supra, 111 Cal.App.4th at p. 1208.) As the trial court’s 
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statements at the hearing reflected, the evidence did not unerringly support the 

prosecution’s claim that defendant had not acted with reasonable diligence. The trial 

court plainly did not resolve any factual issues concerning defendant’s reasonable 

diligence nor did it exercise its discretion to determine whether defendant’s showing of 

reasonable diligence was adequate. As an appellate court, it is not our role to resolve 

factual issues and exercise discretion in the first instance. The appropriate disposition is 

to remand this matter to the trial court with directions to reconsider defendant’s motion

and resolve whether defendant made the requisite showing of reasonable diligence.

III. Disposition

The order is reversed, and the matter is remanded to the trial court with directions 

to reconsider defendant’s motion and resolve whether defendant made the required 

showing of reasonable diligence.
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_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P. J.

_____________________________

Márquez, J.