Filed 6/23/21 P. v. Casas CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR R. CASAS,

Defendant and Appellant.

 B301841

 (Los Angeles County

 Super. Ct. No. GA049029)

APPEAL from an order of the Superior Court of Los 

Angeles County, Michael Villalobos, Judge. Affirmed.

Law Offices of Michael Poole and Michael Poole for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Matthew Rodriquez, 

Acting Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Susan Sullivan Pithey, Assistant Attorney 

General, Paul M. Roadarmel, Jr., and Steven D. Matthews, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

Edgar R. Casas (defendant) appeals from an order denying 

a Penal Code1 section 1473.7 motion to vacate his 2002 guilty 

plea to willful infliction of corporal injury to a spouse (§ 273.5, 

subd. (a)) and dissuading a witness by force or threat (§ 136.1, 

subd. (c)(1)). We affirm the trial court’s order.

FACTUAL BACKGROUND2

On March 2, 2002, Pam V., the mother of defendant’s two 

minor children, went to defendant’s home at his request. When 

Pam and the children arrived, defendant appeared to be under 

the influence of methamphetamine. Defendant left the home 

without explanation, and Pam and the children went to bed. 

Approximately 45 minutes later, defendant returned. An 

argument ensued that escalated into a physical altercation. 

Defendant grabbed Pam by the front of her shirt and punched her 

in the stomach three times. He then grabbed Pam’s hair and 

punched her in the face and on the right cheek. Defendant’s 

brother entered the room and separated defendant from Pam, 

who left with the children and called the police. Pam obtained an 

emergency protective order that evening.

Defendant was arrested a few days later. Despite the 

protective order, defendant called Pam and urged her to lie to his 

probation officer about the assault. In multiple subsequent 

telephone calls, defendant told Pam that he did not want to go to 

jail and threatened her by stating, “Snitches end up in ditches,” 

1 All further statutory references are to the Penal Code

unless otherwise noted.

2 The factual background is taken from the trial court’s 

August 19, 2019 order denying defendant’s motion to vacate.
3

and “My mom hurts because I go to jail, your mom’s going to hurt 

too.” Pam was afraid of defendant, as he had told her in the past 

that he was a member of the 18th Street gang.

PROCEDURAL HISTORY

Charged crimes and plea

An information filed by the Los Angeles County District 

Attorney charged defendant with corporal injury to a spouse, in 

violation of section 273.5, subdivision (a) (count 1), and 

dissuading a victim by force, in violation of section 

136.1,subdivision (c)(1) (count 2). The information further 

alleged as to count 1 that defendant had a prior misdemeanor 

conviction for domestic violence within the past seven years. As 

to count 2, the information alleged that defendant had a prior 

conviction for a serious or violent felony under sections 1170.12, 

subdivisions (a) through (d), and 667, subdivisions (b) through (i), 

and pursuant to section 12022.1; and that defendant was 

released from custody on bail on his own recognizance at the time 

of the offense.

Defendant initially pleaded not guilty and denied all 

allegations. He thereafter retained private counsel.

On July 2, 2002, defendant withdrew his previous not 

guilty plea, and pled guilty to both counts. Pursuant to the terms 

of his plea agreement, defendant was sentenced to three years in 

state prison, consisting of the low term of two years on count 1, 

and one year (one-third of the three-year midterm) on count 2. 

The prior conviction allegation for violation of section 245, 

subdivision (a)(1) was reduced to a misdemeanor, and the 

allegation pursuant to section 12022.1 was dismissed.
4

Motion to vacate

On April 9, 2018, defendant filed a motion to withdraw his 

plea pursuant to section 1473.7. In a declaration accompanying 

his motion, defendant stated that he had entered the guilty plea 

without understanding the immigration consequences of the plea 

and that he would not have entered into the plea agreement had 

he known he could be subject to an immigration bar. The People 

opposed the motion.

Defendant and his counsel, Sylvan Daroca both testified at 

the July 12, 2019 hearing on the motion to vacate. Daroca 

testified that although he had no independent recollection of his 

discussions with defendant at the time of the 2002 guilty plea, it 

was Daroca’s general practice in 2002 to give his clients the 

standard section 1016.5 immigration advisement. After hearing 

argument from the parties, the trial court took the matter under 

submission.

On August 19, 2019, the trial court issued an order denying 

the motion. The trial court found, based on the reporter’s 

transcript of defendant’s 2002 plea proceeding, that defendant 

had been advised of the adverse immigration consequences of his 

plea pursuant to section 1016.5. The trial court rejected as not 

credible defendant’s claims that he was unaware of the 

immigration consequences of his plea and that he would not have 

pled guilty had he known he would be deported or subject to an 

immigration bar. The trial court noted that defendant had three 

previous convictions: a 1989 conviction for reckless driving 

involving alcohol, a 1996 misdemeanor conviction for domestic 

violence, and a 2001 felony conviction for possession of an assault 

weapon, and a misdemeanor conviction for assault with a deadly 

weapon; and in all three cases, defendant was advised of the 
5

adverse immigration consequences of a guilty plea pursuant to 

section 1016.5. The trial court rejected as not credible 

defendant’s claim that Daroca, his counsel in 2002, did not advise 

him of the immigration consequences of his guilty plea.

Finally, the trial court noted that defendant’s options in 

2002 were limited and that he likely faced a state prison term 

longer than the three-year sentence he received pursuant to his 

plea agreement. At the time of his plea, defendant was on felony 

probation for possession of an assault weapon and faced a state 

prison commitment for violation of his probation as well as a 

maximum 10-year prison term in his plea case. Given the 

likelihood that defendant faced a prison term for violation of his 

probation, and a possible lengthy prison term if defendant were 

convicted of the 2002 charges, the trial court found defendant’s 

claim that he would not have pled guilty had he known the 

immigration consequences of his plea not to be credible.

The trial court denied the motion to vacate on the ground 

that defendant failed to establish prejudicial error under section 

1473.7. This appeal followed.

DISCUSSION

I. Applicable law and standard of review

Section 1473.7 requires a trial court to vacate a conviction 

as “legally invalid” if the defendant establishes, by a 

preponderance of the evidence, that the defendant was unable “to 

meaningfully understand . . . the actual or potential adverse 

immigration consequences of a plea,” and the defendant’s 

misunderstanding was prejudicial to the decision to enter the 

plea. (§ 1473.7, subds. (a)(1), (e)(1); see People v. Camacho (2019) 

32 Cal.App.5th 998, 1011-1012 (Camacho).) To establish 
6

prejudice arising from a failure to understand the immigration 

consequences of a plea, a defendant must show that it is 

“reasonably probable” he would not have pled guilty had he been 

properly advised. (People v. Martinez (2013) 57 Cal.4th 555, 564.)

The defendant bears the burden of establishing the legal 

invalidity of the prior conviction under section 1473.7. (§ 1473.7, 

subd. (e)(1); Camacho, supra, 32 Cal.App.5th at p. 1005.) This 

burden may but need not be met by proving ineffective assistance 

of counsel. (§ 1437.7, subd. (a)(1); People v. Mejia (2019) 36 

Cal.App.5th 859, 871.)

We review de novo a trial court’s ruling that a conviction is 

legally invalid when it is based on a constitutional claim of 

ineffective assistance of counsel. (People v. Vivar (2019) 11

Cal.5th 510, 523-528 (Vivar).) We review the trial court’s ruling 

on any other basis for abuse of discretion (ibid) and the trial 

court’s factual findings under the substantial evidence standard. 

(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).) 

Defendant here does not assert ineffective assistance of counsel

as a basis for invalidating his conviction.3 We therefore apply the 

deferential abuse of discretion and substantial evidence 

standards.

3 Defendant does not contend his counsel provided ineffective 

assistance; rather, he claims his attorney did not defend against 

the immigration consequence because at the time of defendant’s 

plea, “the law was not clear” that violation of section 273.5 was 

“categorically a crime of domestic violence” within the meaning of 

federal immigration laws.
7

II. Failure to prove lack of understanding of 

immigration consequences

The trial court determined that defendant failed to prove a 

lack of understanding of the immigration consequences of his 

plea. That determination is based on the court’s finding that 

defendant’s claim that his counsel did not advise him of those 

consequences was “simply not credible.” The trial court’s 

credibility assessment of defendant’s assertions in support of his 

section 1473.7 motion is entitled to particular deference, 

particularly where, as here, that assessment is based on the 

court’s evaluation of defendant’s in-person testimony. (Vivar, 

supra, 11 Cal.5th at pp. 527-528; Ogunmowo, supra, 23 

Cal.App.5th at p. 79 [trial court’s credibility determinations 

based on “live testimony” accorded particular deference].)

People v. Rodriguez (2021) 60 Cal.App.5th 995, People v. 

Jung (2020) 59 Cal.App.5th 842, and People v. Ruiz (2020) 49 

Cal.App.5th 1061, cases cited by defendant’s appellate counsel 

during oral argument, are inapposite. None of those cases 

involved a trial court’s credibility assessment of the appellant’s 

assertions in support of the section 1473.7 motion. The court in 

Jung expressly acknowledged that an “appellate court does not 

reassess witness credibility but defers to the trial court’s 

credibility determinations. (Jung, at p. 853.) That rule applies 

here.

The trial court similarly rejected defendant’s claim that he 

lacked understanding of the immigration consequences of his 

plea because the law at the time was unclear as to whether 

section 273.5, subdivision (a) was a crime of domestic violence 

within the meaning of the federal Immigration and Nationality 

Act and remained unclear until the Ninth Circuit clarified in 
8

2015 that section 273.5 “is categorically a crime of domestic 

violence within the meaning of [title 8 United State Code] 

§ 1227(a)(2)(E)(i).” (Carillo v. Holder (9th Cir. 2015) 781 F.3d 

1155, 1159.) To the extent that conclusion was based on the trial 

court’s assessment of defendant’s credibility, it is accorded 

deference. (Vivar, supra, 11 Cal.5th at pp. 527-528.) Our review 

of the reporter’s transcript of the July 12, 2019 hearing on 

defendant’s motion does not alter this result.4

Defendant failed to provide credible evidence that he lacked 

a meaningful understanding of the immigration consequences of 

his plea. The trial court did not abuse its discretion by denying 

defendant’s motion to vacate his plea.

III. Lack of prejudice

The trial court found defendant’s claim that he would not 

have pled guilty had he known the adverse immigration 

consequences of his plea not to be credible. That finding cannot 

be challenged on appeal. (People v. Tapia (2018) 26 Cal.App.5th 

942, 953 [“We do not reevaluate witness credibility.”]; 

Ogunmowo, supra, 23 Cal.App.5th at p. 79.)

Moreover, as the trial court noted in its written order 

denying the motion to vacate, defendant’s options in 2002 were 

limited. Defendant faced a maximum potential sentence of 10

years in this case. At the time of his plea, defendant was also in 

violation of his probation for felony possession of an assault 

weapon. Even if acquitted of the charges in this case, he still 

faced a state prison commitment for violation of his probation 

that could have exceeded the three-year sentence he received as 

4 We grant defendant’s motion to augment the record on 

appeal to include the transcript of the July 12, 2019 hearing.
9

part of his plea agreement. If convicted of the charges in this 

case, defendant faced a substantial state prison sentence. The 

comparative punishment defendant faced—a three-year prison 

sentence versus a potentially lengthy prison sentence for 

violation of his probation and for the charged offenses—provided 

a strong incentive for defendant to plead guilty notwithstanding 

the immigration consequences.

The trial court’s finding of no prejudice was not an abuse of 

discretion.

DISPOSITION

The order denying the motion to vacate defendant’s 

conviction is affirmed.

________________________, J.

CHAVEZ

We concur:

________________________, P. J.

LUI

________________________, J.

ASHMANN-GERST