Filed 6/29/23 P. v. Garcia CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

CLAUDIO GARCIA,

 Defendant and Appellant.

2d Crim. No. B320969

(Super. Ct. No. MA079161)

(Los Angeles County)

Claudio Garcia appeals a post-judgment order denying his 

motion to withdraw his nolo contendere plea. (Pen. Code, 

§ 1018.)

1 We conclude Garcia did not establish good cause to 

withdraw his plea and affirm.

This appeal concerns Garcia’s nolo contendere plea to two 

counts of commission of a lewd act upon a child under 14 years of 

age. (§ 288, subd. (a).) The trial court suspended execution of 

sentence and placed Garcia on five years of formal probation. 

Approximately five months later, Garcia moved to withdraw his 

1 All statutory references are to the Penal Code.
2

plea, asserting that he did not understand or was unaware of the 

immigration consequences of his plea. Following an evidentiary 

hearing, the trial court denied Garcia’s motion.

FACTUAL AND PROCEDURAL HISTORY

On September 1, 2019, the Los Angeles District Attorney 

filed a felony complaint against Garcia, alleging three counts of 

commission of a lewd act upon a child under 14 years of age. 

(§ 288, subd. (a).) The criminal offenses concerned the sexual 

touching of two girls (11 and 12 years old respectively) during 

sleepovers and a family birthday party at Garcia’s residence. 

Each criminal offense was punishable by three, six, or eight

years’ imprisonment.

On September 2, 2021, Garcia’s attorney, Robert Hankoff, 

informed Garcia that he had negotiated a plea agreement that 

did not involve any jail or prison confinement. That evening, 

Hankoff e-mailed Garcia the terms of the plea agreement. 

On September 3, 2021, Garcia completed a written plea 

form that included a section entitled “Immigration 

Consequences.” Garcia initialed the subsection stating: “I 

understand that if I am not a citizen of the United States, my 

plea of guilty or no contest may result in my deportation, 

exclusion from admission to the United States, or denial of 

naturalization pursuant to the laws of the United States.” (See, 

§ 1016.5, subd. (a).) 

On September 3, 2021, Garcia pled nolo contendere to two 

of the three felony counts. During the plea colloquy, the trial 

judge stated: “If you are not a citizen of the United States, your 

plea will result in your deportation, exclusion from admission to 

the United States and denial of naturalization.” (Italics added.) 

Following an explanation of the other consequences of his plea, 
3

the judge asked Garcia if he had “any questions about anything 

[she] just explained” and whether Garcia understood the 

consequences of his plea. Garcia personally responded that he 

had no questions and understood the consequences of the plea. 

Among other findings, the trial court then found that Garcia’s 

plea was “freely and voluntarily made with an understanding of 

the nature and the consequences thereof . . . .”

Pursuant to the plea agreement, the trial court sentenced 

Garcia to five years’ imprisonment but suspended execution of 

sentence and placed him on formal probation for five years with 

terms and conditions. On February 8, 2022, the United States 

Immigration and Customs Enforcement detained Garcia.

On March 9, 2022, and April 21, 2022, Garcia moved to 

withdraw his plea and vacate his sentence pursuant to sections

1018 and 1473.7. Garcia submitted declarations in support of his 

motion and later testified at an evidentiary hearing. The trial 

court took judicial notice of Garcia’s written plea agreement and 

the transcript of the plea proceedings.

In his supporting declarations, Garcia declared that he had 

questions regarding the effect of the plea upon his immigration 

status but that Hankoff could not answer the immigration 

questions. Hankoff responded that Garcia should seek legal 

advice from an immigration attorney. Garcia had no time to 

consult an immigration attorney, however, because he was 

scheduled to enter the plea the following morning. Garcia 

declared that Hankoff never explained to him that he would be 

immediately deported if he accepted the plea agreement. Garcia 

stated that he would not have entered a plea if he had understood 

that he “would be imminently deportable.” In the morning of the 
4

plea proceeding, Hankoff reminded Garcia that he was receiving 

a “great no custody deal.”

At the evidentiary hearing, Garcia repeated that Hankoff 

did not explain that he would be deported due to the plea. Garcia 

stated that he “had no idea” that he would be deported. He 

admitted that a previous attorney warned him about possible 

immigration consequences, but claimed that “[d]eportation was 

always off the table.” Garcia testified that his previous attorney 

offered to negotiate a disposition that would preclude 

deportation. 

During cross-examination, Garcia admitted that Hankoff 

texted him prior to the plea proceeding and warned that there 

were immigration consequences to the plea: “As you know, this 

conviction will very likely [a]ffect and impact your immigration 

status in the United States. We are not immigration attorneys

and I would encourage you to speak with an immigration 

attorney regarding this matter.” Garcia testified that he did not 

speak to an immigration attorney and did not know that he 

would be deported. 

Garcia also testified that Hankoff informed him that he

(Hankoff) would consult an immigration attorney on Garcia’s

behalf, but did not do so. Garcia stated that despite the trial 

court’s admonition, he believed he “had time” to contest 

deportation and was relying upon his attorney.

Following Garcia’s testimony, the trial court denied his 

motion to withdraw his plea pursuant to section 1018. In ruling, 

the court relied upon the lack of “credible” evidence that counsel 

misadvised Garcia or informed him that he would not be 

deported. The court concluded: “[T]here is no indication . . . that 

[Garcia] was misadvised or not advised about the immigration 
5

consequences – in fact, the evidence shows that he was 

specifically advised of the deportation by the court – but also, 

there is no indication, other than statements by [Garcia] that the 

court doesn’t find credible, that he wouldn’t have plead[ed] had 

he known of these consequences.” The court also noted that 

Garcia had approximately one year from his arraignment until 

the plea proceeding to seek advice regarding his immigration

status. The court also commented that Garcia received “an 

exceptionally favorable disposition.”

` The trial court also denied Garcia’s motion pursuant to 

section 1473.7, concluding that the statute was inapplicable 

because Garcia, a probationer, remained in constructive custody. 

(Id., subd. (a).) 

Garcia requested and obtained a certificate of probable 

cause to appeal the trial court’s denial of his motion. 

DISCUSSION

Garcia argues that the trial court abused its discretion by 

denying his plea withdrawal motion. 

Section 1018 permits a defendant to move to withdraw a 

plea for good cause at any time before judgment is entered. A 

defendant has the burden of demonstrating good cause by clear 

and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 

566 [generally defendant must show by clear and convincing 

evidence that the plea was the result of mistake, ignorance, or 

any other factor overcoming exercise of free judgment].) A 

defendant must further show prejudice in that he “would not 

have accepted the plea bargain had it not been for the mistake.” 

(People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) The focus 

of a section 1018 inquiry is “what the defendant knew when 
6

entering the plea.” (People v. Patterson (2017) 2 Cal.5th 885, 

897.) 

A trial court’s decision to grant or deny a motion to 

withdraw a plea pursuant to section 1018 is reviewed for an 

abuse of discretion. (People v. Patterson, supra, 2 Cal.5th 885, 

894; People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1096-1097 

[trial court’s decision may not be arbitrary, whimsical, or 

capricious]; cf. People v. Vivar (2021) 11 Cal.5th 510, 528 

[independent review standard applies to “someone seeking to 

withdraw a plea under section 1473.7” for adverse immigration 

consequences].) We are bound by the trial court’s factual findings 

that are supported by sufficient evidence. (People v. Fairbank

(1997) 16 Cal.4th 1223, 1254.)

The trial court denied Garcia’s motion to withdraw his plea 

because he did not establish good cause by clear and convincing 

evidence. The trial court informed Garcia that by virtue of his 

plea, he would be deported. Garcia stated that he understood 

and did not have any questions for the court. The written 

disposition statement also informed Garcia that he might be 

deported and his attorney advised him that his immigration 

status would likely be affected. Garcia did not request additional 

time from the court to consider the effect of his plea upon his 

immigration status. (§ 1016.5, subd. (b) [“Upon request, the court 

shall allow the defendant additional time to consider the 

appropriateness of the plea in light of the advisement”].) The 

court also expressly found Garcia’s statement that he was not 

advised or misadvised or that he would not have entered the plea 

agreement if he had known of the immigration consequences to 

be not credible.
7

Ineffective Assistance of Counsel

Garcia also contends that his attorney did not adequately 

research and advise him of the immigration consequences of his 

plea. For this reason, he asserts that he received the ineffective 

assistance of counsel. (United States v. Rodriguez-Vega (9th Cir. 

2015) 797 F.3d 781, 786 [counsel required to advise defendant 

that a section 288, subdivision (a), conviction renders removal 

virtually certain]; United States v. Bonilla (9th Cir. 2011) 637 

F.3d 980, 984 [same].)

To prevail, Garcia must demonstrate that 1) counsel’s 

representation fell below an objective standard of reasonableness, 

as judged by prevailing professional norms; and 2) but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different. (Strickland v. Washington (1984) 466 

U.S. 668, 688, 694.) In other words, Garcia must establish “a 

reasonable probability exists that, but for counsel’s incompetence, 

he would not have pled guilty and would have insisted, instead, 

on proceeding to trial.” (In re Resendiz (2001) 25 Cal.4th 230, 

253, abrogated in part on other grounds by Padilla v. Kentucky

(2010) 559 U.S. 356, 370.)

Garcia’s counsel advised Garcia by text that his plea would 

“very likely [a]ffect and impact [his] immigration status,” and 

that he should seek advice from an immigration attorney. 

Although counsel did not advise that deportation was virtually 

certain, he did advise that it was “very likely” and that Garcia 

should obtain expert immigration advice. Moreover, the trial 

court advised Garcia that he would be deported by virtue of his 

plea. Garcia cannot establish ignorance of the immigration 

consequences of his plea. 
8

Garcia also cannot establish that but for counsel’s asserted 

incompetence, he would not have entered a plea agreement. 

Garcia does not identify any alternate immigration-neutral 

disposition that his attorney could have negotiated on his behalf 

and to which the prosecutor would have agreed. The charged 

sexual offenses prescribed lengthy sentences and his victims’ 

statements at sentencing reflect their interest in holding Garcia 

accountable. There is no reasonable probability that Garcia 

would have insisted on proceeding to trial. (In re Resendiz,

supra, 25 Cal.4th 230, 253 [disparity between terms of plea 

agreement and probable penalty consequences of conviction after 

trial is one factor in deciding plea withdrawal motion].)

DISPOSITION

The order denying Garcia’s motion to withdraw his plea is 

affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

BALTODANO, J.

CODY, J.
9

Kathleen Blanchard, Judge

Superior Court County of Los Angeles

______________________________

Sabrina R. Damast, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Rama R. Maline, 

Deputy Attorneys General, for Plaintiff and Respondent.