Filed 8/21/18; pub. order 9/14/18(see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A152348 v. LUIS ARIEL CRUZ-LOPEZ, (Marin County Super. Ct. No. SC186143A) Defendant and Appellant. INTRODUCTION On March 30, 2017, appellant filed a motion to vacate revocation of probation pursuant to Penal Code1 section 1473.7, subdivision (a)(1). In the motion, appellant raised the issue of ineffective assistance of counsel. He claims he was not properly advised by his trial counsel regarding the aggravated felony immigration consequences of his admission and sentence. Also, he argues his defense attorney was ignorant of the immigration consequences of his probation sentence, execution of sentence suspended (ESS); he should have requested a probation sentence, imposition of sentence suspended (ISS), as part of the deal. The trial court denied the motion on June 30, 2017. A timely appeal was filed on August 29, 2017. We affirm. 1 Unless otherwise stated, all statutory references are to the Penal Code. STATEMENT OF FACTS Marin County Superior Court Case No. SC186143A (Aggravated Assault Felony Plea) On September 15, 2013, E.R. was eating a meal in a restaurant in Novato. He was approached by appellant, who entered the restaurant and demanded E.R. follow him outside. E.R. knew appellant and reluctantly complied with the directive. When the two men were outside, appellant proceeded to hit E.R. in the head and then kicked him. He may have used a glass bottle when he struck E.R. in the head. When the police arrived, they saw the two men struggling on the sidewalk. E.R.’s left ear was partially severed. Witnesses in the restaurant reported to police that E.R. was eating a meal in the restaurant when appellant entered and demanded he step outside. A video of the incident was recovered from the surveillance camera in the restaurant. The police watched the video and determined it showed E.R. leaving the restaurant with appellant. Appellant then struck E.R. in the head with a bottle. No provocative acts were indicated on the part of E.R.2 The victim believed appellant thought he was a Norteño member because appellant called him a “Chapete,” which is derogatory term Sureños label members of the Norteños. Marin County Superior Court Case No. SC185751A On August 9, 2013, appellant was stopped for a traffic violation in Novato. The officer smelled marijuana emanating from the car appellant was driving. Appellant admitted to the use of marijuana. The officer found a bottle of 30 Vicodin pills in driver’s side door. 2 This narrative is based on the probation report. There was no testimony since appellant entered a guilty plea. The additional facts regarding appellant’s other criminal acts are also based on the same probation report. 2 Marin County Superior Court Case No. CR185379A On June 26, 2013, Novato police observed appellant, along with two companions, yelling at a passing motorist. The officer knew appellant from prior contacts and believed he associated with the Sureños street gang. The officer ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals