1

Filed 4/29/15 P. v. Cruz CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN EMILIO CHAVEZ CRUZ,

Defendant and Appellant.

 A140621

 (Sonoma County

 Super. Ct. No. SCR18782)

I.

INTRODUCTION

Appellant Juan Emilio Chavez Cruz appeals the trial court’s denial of his motion 

to vacate his convictions because of the court’s failure to advise him of the immigration 

consequences of his guilty plea, as required by Penal Code section 1016.5 (Section 

1016.5). He contends the trial court erred in deciding that too much time had elapsed 

since his original plea, and in finding that it was “implausible” he would not have entered 

into the same negotiated disposition had Section 1016.5 been complied with by the court 

that accepted his original plea. We disagree, and affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUNDS

A one-count information was filed on May 7, 1991, by the Sonoma County 

District Attorney charging appellant with a single count of possession of cocaine for sale 

(Health & Saf. Code, § 11351). After appellant pleaded not guilty to the charge, the 

prosecution filed a motion to consolidate the case with three other related criminal cases 
2

which had been filed against appellant and a codefendant. The unopposed motion was 

granted on July 26, 1991, and an amended information was then filed charging appellant 

with one count of possession of cocaine for sale, and one count of sale of cocaine in 

violation of Health and Safety Code sections 11351 and 11352.

On September 4, 1991, appellant changed his plea from not guilty, and entered a 

plea of guilty to both counts. The case was referred by the court to the probation 

department for a presentence report, with the court indicating that if the probation 

department recommended a state prison sentence, the sentence would not exceed two 

years.

1

A presentence report was filed by the probation department on October 17, 1991. 

In it the report chronicled appellant’s extensive criminal history, concluded that 

appellant’s performance on conditional releases in the past had been “poor,” and noted 

that he admitted committing the current crimes. The circumstances of the crimes 

involved undercover law enforcement prearranging purchases of cocaine which 

implicated appellant. A search warrant of appellant’s residence was executed, and 

evidence was obtained confirming his involvement in a drug sale. The officers executing 

the warrant also found additional cocaine in appellant’s residence. The report concluded 

that the “circumstances surrounding these offenses appear to be relatively unremarkable 

and [appellant] has acknowledged his involvement in cocaine trafficking.” Finally, the 

department recommended that appellant be sentenced to four years in state prison (the 

mid-term for the Health and Safety Code section 11352 violation), and that a concurrent 

term of two years for count one also be imposed but stayed.

Sentencing was held on October 23, 1991. At the hearing, defense counsel recited 

that the negotiated disposition included that appellant would be sentenced to state prison 

on count one for a term not to exceed two years, and that the sentence on count two

 

1

 There is no transcript of the 1991 plea hearing. As it is today, the sentencing 

triad for a violation of Health and Safety Code section 11351 was 24, 36, or 48 months in 

state prison. Also, the sentencing triad for a violation of Health and Safety Code section 

11352 was 36, 40, and 60 months.
3

would be stayed or appellant would be sentenced to county jail on that violation. The 

prosecutor who appeared at sentencing apparently was not the same deputy who 

negotiated the plea. Counsel indicated that she agreed with the probation department that 

a term of four years in state prison on the Health and Safety Code section 11352 count 

was indicated rather than the two-year term discussed, because that lower term “would 

not even be the mitigated term under the [section] 11352.” In response, appellant’s 

counsel stated that the prosecution had “some problems with the case,” in that a 

necessary witness on the section 11352 charge also had been charged with a drug offense.

The court then imposed the agreed upon term of two years in state prison for the 

violation of Health and Safety Code section 11351, and a separate term of three years in 

state prison for the violation of Health and Safety Code section 11352. That second term 

was stayed until appellant completed his two-year sentence on count one at which time 

the three-year concurrent sentence would be permanently stayed.

Almost 22 years later, in July 2013, appellant moved to vacate his convictions

because he was not advised of the immigration consequences of his plea pursuant to 

Section 1016.5. He asserted that he had been denied legal permanent resident status and 

was subject to deportation. He submitted two declarations. The first declaration stated: 

“Neither the judge, the district attorney, or my own lawyer said anything to me about 

there being immigration consequences for me because of this conviction. . . . If I had 

known I could never be a Legal Permanent Resident because of this case, I never would 

have pleaded guilty, I would have taken my chances in a jury trial[.]” Appellant

submitted a letter from the Department of Homeland Security (DHS) denying his 

application for lawful permanent resident status in 2004 along with an envelope from 

DHS showing the letter had never been delivered because appellant had moved. The 

second declaration stated that appellant did not know his resident status had been denied 

until his attorney acquired his immigration file in April 2013.

In October 2013, the court conducted a brief hearing on the Section 1016.5 motion 

without testimony or argument. The court stated it had reviewed the pleadings and the 

record was not “as perfect as we would like it to be.”
4

The court then found: “The bottom line from the Court’s perspective is too much 

time has passed with the original disposition appearing to be a very favorable one, it is 

hard to imagine that at the time [appellant] would have done anything different, and that 

it is only so many years down the road, the change in immigration, enforcement, puts 

[him] in jeopardy of being deported that now it becomes a primary factor in, and a 

determining factor in whether he would have entered into the plea agreement or not. I 

find it implausible. There is a period of time that’s gone by that it is just too long to go 

and it really argues against the importance of that decision. I wasn’t real clear on the 

timeline on the additional material [appellant] provided. He missed some of the 

proceedings with immigration and then they weren’t able to track him down because he 

moved. So additional years go by. Respectfully[,] I deny your motion . . . .”

III.

DISCUSSION

“Before accepting a plea of guilty or no contest, a trial court is statutorily required 

to advise a defendant that if the defendant is not a citizen of this country, the plea could 

result in deportation, exclusion from the United States, or denial of naturalization. . . .”

(People v. Arriaga (2014) 58 Cal.4th 950, 955, citing Pen. Code, § 1016.5, subd. (a).)

Section 1016.5 provides if the court fails to advise a defendant at a guilty plea of the 

immigration consequences, “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 [S]ection 1016.5 motion, a defendant must establish (1) that the 

advisements were not given; (2) that the conviction may result in adverse immigration 

consequences; and (3) that the defendant would not have pled guilty or no contest had 

proper advisements been given. . . .” (People v. Arriaga, supra, 58 Cal.4th at 

pp. 957-958, citing People v. Martinez (2013) 57 Cal.4th 555, 558–559.)
5

There is no record that appellant was advised of the immigration consequences; 

we therefore presume the advisements were not properly given. Therefore, the remaining 

issue is prejudice. (Martinez, supra, 57 Cal.4th at p. 559 [“Relief will be granted, 

however, only if the defendant establishes prejudice.”]; People v. Superior Court

(Zamudio) (2000) 23 Cal.4th 183, 210.) Prejudice is shown if appellant can establish it 

was reasonably probable he would not have pleaded guilty if properly advised. 

(Martinez, at p. 559.) “[T]he question is what the defendant would have done . . . if the 

court, after considering evidence offered by the parties . . . determines the defendant 

would have chosen not to plead guilty or nolo contendere, even if the court also finds it 

not reasonably probable the defendant would thereby have obtained a more favorable 

outcome.” (Ibid., original italics.)

To establish prejudice, “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.” (People v. Martinez, supra, 57 Cal.4th at p. 565.) In 

Martinez, our Supreme Court identified several factors a trial court may consider to 

determine the credibility of a defendant’s claim including: “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.” 

(Id. at p. 568.)

Here the trial court considered the time lapse between the plea hearing and 

appellant’s motion to vacate, the fact that the plea deal had been a favorable one for 

appellant, the fact that immigration policy had changed during the interim two decades, 

and that appellant’s claim now that he would have elected to go to trial was 

“implausible.”
6

We conclude that the trial court’s finding were supported by the facts, including 

reasonable inferences from those facts, and its conclusions leading to the denial of 

appellant’s motion fully compliant with the directives of our Supreme Court in Martinez.

The plea negotiated by appellant’s defense counsel in 1991 was a good one from 

his perspective. Even assuming that appellant could not have been sentenced 

consecutively on both counts under Penal Code section 654 (cf. People v. Monarrez

(1998) 66 Cal.App.4th 710), had he gone to trial, appellant faced at least double the state 

prison term that he was able to achieve through a plea bargain. In fact, despite the plea 

agreement the probation department recommended the higher sentence, which also was 

pointed out by the prosecutor at sentencing, who was obviously expressing “buyer’s 

remorse” after the presentence report had been received. Factually, the case was a 

straightforward one, and appellant acknowledged his guilt, making a determination of 

guilt almost a certainty had the case proceeded to trial.

As alluded to by the trial court, immigration policy and law on deportation at the 

time his plea was entered made it much less likely that appellant faced deportation upon 

his release from prison than he faces today. As explained by the United States Supreme 

Court in INS v. St. Cyr (2001) 533 U.S. 289, 296-297 (St. Cyr)), the Attorney General 

previously had the discretion to waive deportation for a conviction of possession of 

cocaine for sale. The court noted: “[T]he class of aliens whose continued residence in 

this country has depended on their eligibility for [discretionary] relief [under the law] is 

extremely large, and not surprisingly, a substantial percentage of their applications for 

[such] relief have been granted. Consequently, in the period between 1989 and 1995 

alone, [such] relief was granted to over 10,000 aliens.” (St. Cyr, supra, 533 U.S. at 

pp. 295-296.)

The criteria for discretionary relief under prior law included “the seriousness of 

the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s 

residence, the impact of deportation on the family, the number of citizens in the family, 

and the character of any service in the Armed Forces.” (St. Cyr, supra, 533 U.S. at 

p. 296, fn. 5.) “Given the frequency with which . . . relief was granted [under prior law] 
7

in the years leading up to AEDPA [Antiterrorism and Effective Death Penalty Act of 

1996] and IIRIRA [Illegal Immigration Reform and Immigration Responsibility Act of 

1996], preserving the possibility of such relief would have been one of the principal 

benefits sought by defendants deciding whether to accept a plea offer or instead to 

proceed to trial.” (Id. at p. 323, fns. omitted.)

Thus, at the time appellant entered his plea, deportation was far from certain. 

Consequently, had he been advised at the time that he might face deportation if he 

pleaded guilty but that those chances increased if he proceeded to trial, it is doubtful that 

he would have taken a chance at trial realizing also that he faced a much longer prison 

term in the likely event he was found guilty.

So too, the trial court’s inference that immigration consequences were not a 

serious concern to appellant when he pleaded guilty in 1991 was most reasonable, and 

consistent with the facts. As appellant’s own declaration in support of his motion to set 

aside his plea makes clear, he did not even seek an adjustment of his immigration status 

to permanent resident until 2002—a decade after his plea was entered. Even then he 

failed to show up for the interview, albeit because of a professed “emergency,” and 

thereafter made no effort to contact USCIS (United States Citizenship and Immigration 

Services) to reschedule the interview, nor did he make any attempt to move his 

adjustment of status forward after 2002. In fact, he claims that he did not become aware 

that he was denied an adjustment of his immigration status until 2013, when his former 

attorney told him about the stated governmental reason for the denial of his then-stale 

application.

Lastly, although not specifically mentioned by the trial court, but a factor 

nonetheless under Martinez, appellant had a rather extensive criminal history, although

arguably less serious than the offenses to which he pleaded guilty in 1991. He had five 

driving under the influence (DUI) convictions, offering only an explanation that the law 

in Mexico was different and he did not know that drinking and driving in this country
8

was illegal.2 He also had two petty theft convictions (Pen. Code, § 488), and two for 

driving while license privileges were suspended (Veh. Code, § 14601.2, subd. (a)).

As noted, our Supreme Court has directed courts reviewing motions to set aside 

convictions where Section 1016.5 has presumptively been violated to consider a number 

of factors in determining prejudice. (People v. Martinez, supra, 57 Cal.4th at p. 568.) In 

virtually every respect the record supports a finding of no prejudice. Accordingly, we 

discern no abuse of discretion in denying appellant’s motion to set aside his 1991 

convictions based on a presumed failure to admonish him concerning the immigration 

consequences of his plea pursuant to Section 1016.5.

IV.

DISPOSITION

The judgment is affirmed.

 

2

 Even if one were inclined to mitigate appellant’s legal or moral responsibility 

for his first DUI because the laws in Mexico and California were different, it certainly 

does not diminish his culpability for the subsequent four DUI’s he committed.
9

_________________________

RUVOLO, P. J.

We concur:

_________________________

RIVERA, J.

_________________________

STREETER, J.
10

A140621, People v. Cruz