People v. Tagintsev CA3

Filed 8/11/22 P. v. Tagintsev CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C094590 Plaintiff and Respondent, (Super. Ct. No. 12F03145) v. ALEXANDER TAGINTSEV, Defendant and Appellant. Nearly a decade ago defendant Alexander Tagintsev pleaded no contest to engaging in lewd and lascivious acts with a child under the age of 14. He was afterward deported to Kazakhstan, his country of citizenship, based on this conviction. He now seeks to set aside his conviction using Penal Code1 section 1473.7, a statute that allows a person out of custody to vacate a conviction “due to prejudicial error damaging the 1 Undesignated statutory references are to the Penal Code. 1 moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” (§ 1473.7, subd. (a)(1).) According to defendant, he is entitled to relief under this statute because his counsel failed to inform him that he would be deported if he were convicted and, had she done so, he would not have pleaded no contest. We reject his claim. Like the trial court, we conclude that defendant failed to meet his burden to show his entitlement to relief under this statute. We thus affirm the trial court’s order denying relief. BACKGROUND In 2012, the Sacramento County District Attorney charged defendant, then a noncitizen resident of the United States, with one count of lewd and lascivious acts with a child under the age of 14 (§ 288, subd. (a)) and two counts of annoying or molesting a child under the age of 18 (§ 647.6, subd. (a)(1)). Defendant later admitted a factual basis existed for the section 288 count, acknowledging that the prosecution’s evidence would show that, in 2010, he “touch[ed] the breasts of . . . a child of the age of 13 years old” “with the intent to sexually gratify himself.” Following the charges, defendant’s attorney attempted to negotiate a plea that would avoid adverse immigration consequences and limit defendant’s time in custody. To that end, after the prosecution offered “a bullet,” that is, a year, on the section 288 charge, defendant’s counsel countered with three alternatives, e-mailing: “1) Would you giv[e] 364 days instead of 365? [¶] 2) Is there any way that you would offer a [section] 32 [charge] instead? [¶] 3) If no to #2, would you consider offering a misdemeanor instead?” But the prosecution responded that “the offer remains a bullet on the [section] 288 [subdivision] (a) [charge]. We [will] not be offering a misd[emeanor] given defendant’s repeated victimizing conduct. There are certainly cases where we’d consider less time or a different charge. This one isn’t it.” …

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