IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
December 1, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
VICTOR D. ARRIAGA, DEFENDANT AND APPELLANT.
APPEAL from an order of the Superior Court of Los Angeles County. Steven D. Blades, Judge. Affirmed. (Los Angeles County Super. Ct. No. A537388)
The opinion of the court was delivered by: Chavez , J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Victor Diaz Arriaga (defendant) appeals from an order denying his motion to vacate a judgment entered in 1986 upon a guilty plea. He contends that the trial court erred in finding that he was adequately advised of the potential immigration consequences of his guilty plea. Respondent contends that defendant was required to obtain a certificate of probable cause to bring this appeal, and as he did not do so, the appeal should be dismissed. We conclude that no certificate of probable cause was required, and upon reaching the merits of the appeal, we reject defendant's contentions. Finding that the trial court did not abuse its discretion in denying the motion, we affirm the order.
On January 11, 2010, defendant filed a motion to vacate his 1986
conviction in Los Angeles Superior Court case No. A537388, in which he
had pled guilty to a violation of Penal Code section 12020,
subdivision (a)(8).*fn1 In support of the motion,
defendant submitted his declaration describing the circumstances of
his conviction as well as facts regarding himself and his family.*fn2
Defendant does "not recall being properly advised by the
court of the immigration consequences that could result from this
conviction when [he] entered [his] plea." He did not know that the
plea could result in a permanent separation from his family and
The preprinted minute order of the 1986 plea hearing states: "Defendant advised of possible effects of plea on any alien or citizenship/probation status." No reporter's transcript was available, and the reporter's notes had been destroyed. The prosecution presented the testimony of Los Angeles County Deputy District Attorney Harold W. Hofman, Jr. (Hofman), who was the calendar deputy assigned to taking pleas in July 1986 in the department where defendant entered his plea.
Hofman did not remember defendant, but testified that when taking pleas, it was his habit to inform the defendants of their rights and consequences of their pleas. Hofman, rather than the judge sitting in that department, would take the waivers himself 99.9 percent of the time. He testified that in addition to explaining the charges and the defendant's constitutional rights, he "always" advised defendants of the immigration consequences of their pleas. He remembered the language he used, and recited it: "There are a number of consequences to your plea. One of those consequences is you may be deported from the country, that is, required to leave the country, after you are convicted of this offense. You may be denied readmission to the United States after you enter your plea. And if you apply for citizenship, that application may be denied."
Defendant testified that he did not recall being made aware that his plea could result in deportation, exclusion, or denial of naturalization, but that if he had been, he would have rejected the plea. Defendant did not remember whether anyone explained the charges to him, and denied that anyone explained his constitutional rights. He subsequently applied for naturalization, but the application was denied due to his conviction, and he received a letter telling him to report to immigration court in April 2011 for deportation proceedings.
The trial court denied defendant's motion upon finding that the required advisements were given when defendant entered his plea, and that the language used by Hofman substantially complied with the language required by section 1016.5. Defendant filed a timely notice of appeal from the order denying his motion, but did not obtain a certificate of probable cause.
I. Requirements of section 1016.5
Prior to acceptance of a plea of guilty or nolo contendere, the trial court must give the defendant the following advisement on the record: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (a).) A defendant who was not so advised may move to vacate the judgment and his plea. (§ 1016.5, subd. (b).)
"To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement. [Citations.]" (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari); see also People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200 (Zamudio).)
II. No certificate of probable cause required
Citing the recent decision in People v. Placencia (2011) 194 Cal.App.4th 489 (Placencia), respondent contends that the appeal must be dismissed because defendant failed to obtain a certificate of probable cause, as required by section 1237.5.
Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the trial court has executed and filed a certificate of probable cause for the appeal. The court in Placencia held as a matter of first impression that section 1237.5 applies to an appeal based on the denial of a section 1016.5 motion to vacate. (Placencia, supra, 194 Cal.App.4th at pp. 494-495; see Cal. Rules of Court, rule 8.304(b).)*fn3 The court's reasoning began with the established exception to section 1237.5, applied to appeals based upon grounds which arose after entry of the plea and do not challenge the validity the plea. (Placencia, at p. 493, citing People v. Johnson (2009) 47 Cal.4th 668, 678 (Johnson); People v. Mendez (1999) 19 Cal.4th 1084, 1096.) The court held that the exception did not apply to a section 1016.5 motion, because such a motion "follows a claimed failure by the trial court to advise the defendant of the immigration consequences of a plea of guilty or nolo contendere which necessarily precedes the entry of the plea and affects the validity of the plea. [Citations.]" (Placencia, supra, at pp. 493-494.) The Placencia court concluded that because the exception did not apply, a certificate of probable cause was required. (Id. at pp. 494-495.) As none was filed in that case, the court dismissed the appeal. (Id. at p. 495.)
Defendant contends that the Placencia decision begs the question whether an exception to section 1237.5 was required in the first instance. We agree. As the Placencia court recognized, the California Supreme Court held in Totari that the denial of a section 1016.5 motion is an order made after judgment which affects the substantial rights of the defendant, and thus appealable under section 1237, subdivision (b).*fn4 (Totari, supra, 28 Cal.4th at p. 887.) Under subdivision (a) of section 1237, appeals taken from a final judgment of conviction are made expressly subject to section 1237.5. There is no such condition in subdivision (b) of section 1237, for appeal from orders entered after the final judgment of conviction which affect the substantial rights of the defendant.
Nevertheless, the Placencia holding assumes that the denial of any motion to withdraw a guilty plea is subject to the certificate requirement of section 1237.5, if the motion was based upon the invalidity of the plea. The court relied in part upon the California Supreme Court's following language in Johnson: "A defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea. [Citation.]" (Johnson, supra, 47 Cal.4th at p. 679.) In support of its holding in Johnson, the California Supreme Court cited its earlier decision in People v. Ribero (1971) 4 Cal.3d 55 (Ribero), where the court had held that "the determinative factor [is] the substance of the error being challenged, not the time at which the hearing was conducted. . . . [The defendant] cannot avoid the requirements of section 1237.5 by labeling the denial of the motion as an error in a proceeding subsequent to the plea. To hold otherwise would be to invite such motions as a matter of course, and would be wholly contrary to the purpose of section 1237.5." (Ribero, supra, at pp. 63-64, fn. omitted; Johnson, supra, at p. 679.)
The conclusion drawn by the Placencia court from the holdings in Johnson and Ribero was that the defendant's labeling of the appeal as one from an order after judgment could not be allowed to circumvent the requirements of section 1237.5 and thus undermine its purpose of preventing frivolous appeals following guilty and nolo contendere pleas. (Placencia, supra, 194 Cal.App.4th at pp. 493-494.) It was not the defendant, however, who labeled the appeal from the denial of a section 1016.5 motion as an order after judgment, appealable under subdivision (b) of section 1237. It was our Supreme Court. (Totari, supra, 28 Cal.4th at pp. 886-887.) In doing so, the court unambiguously held that an order denying a section 1016.5 motion to vacate was an "appealable order under section 1237, subdivision (b)." (Totari, supra, at p. 887.) As we have heretofore noted, section 1237, subdivision (a), is expressly subject to section 1237.5, whereas subdivision (b) is not.
In Totari, the court recognized that "section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the 'substantial rights' of the defendant," subject only to the limitation that "ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment." (Totari, supra, 28 Cal.4th at p. 882, citing People v. Thomas (1959) 52 Cal.2d 521, 527.) The court held, however, that the limitation does not apply to an appeal from an order denying a statutory motion to vacate, such as a section 1016.5 motion. (Totari, at pp. 886-887.) It follows from Totari's reasoning that section 1237, subdivision (b) literally applies to the denial of a section 1016.5 motion, thus permitting an appeal that is not limited by section 1237.5. We conclude that no certificate of probable cause was required to perfect this appeal.
III. Standard of review
We review the trial court's ruling for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 191.) To establish an abuse of discretion, defendant must show that it was exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.) We uphold the trial court's reasonable inferences and resolution of factual conflicts if supported by substantial evidence, viewed in the light most favorable to the ruling, and we accept the court's credibility determinations. (People v. Quesada (1991) 230 Cal.App.3d 525, 533 (Quesada).)
IV. Preponderance of the evidence
Because there was no reporter's transcript and the minutes of the 1986 plea hearing did not set forth the actual advisement given regarding the immigration consequences, defendant was "presumed not to have received the required advisement." (§ 1016.5, subd. (b).) The presumption was rebuttable, and the prosecution bore the burden to prove by a preponderance of the evidence that the required advisements were given. (People v. Dubon (2001) 90 Cal.App.4th 944, 953-954 (Dubon).) Defendant contends that a preponderance of the evidence is the wrong standard of proof, and urges this court to reject the contrary holding in Dubon by articulating a clear and convincing standard.
Defendant acknowledges that Evidence Code section 115 provides: "Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." However, he points out that where the Legislature has not established a standard of proof, the issue becomes a judicial function to be exercised by considering all aspects of the law. (People v. Burnick (1975) 14 Cal.3d 306, 314.) No standard of proof is specified in section 1016.5, and defendant suggests that the heightened burden of proof applied in deportation and denaturalization proceedings would be appropriate here, although a ruling on the motion does not directly result in either consequence. (See Woodby v. INS (1966) 385 U.S. 276, 285 [deportation]; Schneiderman v. United States (1943) 320 U.S. 118, 125 [denaturalization].)
We need not reach defendant's contention regarding the standard of proof, because defense counsel expressly agreed, when asked to do so by the trial court, that the standard of proof to be applied to the prosecution's burden was a preponderance of the evidence. (See People v. Davis (2005) 36 Cal.4th 510, 539 [invited error].)
Moreover, we agree with Dubon that the appropriate standard of proof is a preponderance of the evidence. Due process requires a higher standard of proof when the government deprives an individual of a liberty or property interest. (Santosky v. Kramer (1982) 455 U.S. 745, 754; People v. Jason K. (2010) 188 Cal.App.4th 1545, 1556; see People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1255-1256.) However, the determination of the standard should be based upon a consideration not only of the individual's interests, but also of the countervailing governmental interest. (Santosky, supra, at p. 754; Jason K., supra, at p. 1556.) The standard of proof should reflect the relative importance of the ultimate decision. (Addington v. Texas (1979) 441 U.S. 418, 423-425.) The outcome of this proceeding would not and did not result in the deprivation of a liberty or property interest. On the other hand, the finality of judgments is an important public interest. (See In re Crow (1971) 4 Cal.3d 613, 622-623.) This is particularly so with regard to judgments entered upon guilty pleas. (See Custis v. United States (1994) 511 U.S. 485, 497.) Thus, balancing the relative importance of the ultimate decision upon a section 1016.5 motion, we conclude that the court correctly applied a preponderance standard.
V. Substantial evidence supports finding that advisements were given
Defendant also contends that even under the lower, preponderance of the evidence standard of proof, substantial evidence did not support a finding that the three required immigration advisements were given.
Absent a reporter's transcript, a minute order can sometimes amount to an adequate record of the required advisement. (Dubon, supra, 90 Cal.App.4th at p. 954.) In Dubon, there was no reporter's transcript, and the only evidence of the advisement was a minute order, nearly identical to the minute order in this case, stating that the defendant "was advised of the possible effects of his plea on any 'alien/citizenship/probation/parole status.'" (Ibid.) The Dubon court held that while such a minute order provides some evidence that the required advisements were given, it is insufficient, without more, to establish a complete advisement of the three possible consequences: deportation, exclusion, and denial of naturalization. (Id. at p. 955.)
Additional evidence in this case provided substantial evidence to support the ruling. Hofman testified that he always advised defendants that a guilty plea could result in deportation, denial of readmission to the United States, and denial of naturalization. Evidence of habit or custom "is admissible to prove conduct on a specified occasion in conformity with the habit or custom." (Evid. Code, § 1105.)
Defendant argues that Hofman's testimony was insufficient because it was contradicted by inferences that may be drawn from the absence of clerk's notes explaining the preprinted language of the minute order. Defendant also argues that Hofman's testimony was insufficient because it was based only upon his memory, uncorroborated by notes of the plea hearing, a checklist, or a preprinted plea form.
Any inference from the terse language of the minute order that the advisement was inadequate was dispelled by Hofman's testimony where he gave a detailed recitation of his oft-given advisement of immigration consequences. Further, the authorities cited by defendant do not hold or suggest that such testimony of custom and habit must be corroborated with a written plea form containing the required advisement or other evidence. (See Gutierrez, supra, 106 Cal.App.4th at pp. 171-173; Ramirez, supra, 71 Cal.App.4th at pp. 522-523; Quesada, supra, 230 Cal.App.3d at pp. 533-535.) Either verbal or written advisements may be given. (Ramirez, at pp. 521-522.)
VI. Spanish interpreter
Defendant contends that the advisement was inadequate because evidence suggested that he may have needed a Spanish interpreter. Defendant points out that the record does not reflect that he was afforded an interpreter when he entered his plea in 1986, although one was appointed in later court proceedings. He also points to evidence that he studied English in 2008 and 2009. Defendant concludes that the advisement was not shown to have been given in a language he understood, and was thus inadequate.
Defendant's sole authority for his contention is article I, section 14 of the California Constitution: "A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." He cites no authority supporting his suggestion that this issue may be raised for the first time on appeal or that it was the prosecution's burden to prove defendant's English proficiency.
In any event, defendant did not testify that he did not understand what he was told; he testified that he could not recall what he was told. Moreover, it was unlikely that defendant understood no English at the time he entered his plea in 1986, as he had lived in this country for more than 15 years. The record does not indicate any detail concerning the English classes taken in 2008 and 2009. It is unknown whether they were courses in basic comprehension rather than grammar or writing for the English speaker. Further, simply because an interpreter was appointed in other proceedings did not create a presumption that defendant did not understand English. (See In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453.) We conclude that defendant's contention has no merit.
VII. Advisements were properly given by the prosecutor
Defendant notes that section 1016.5 requires "the court" to administer the advisement. He contends that "court" is synonymous with "judge" and excludes anyone to whom the judge might delegate the duty. He concludes that by permitting the prosecutor to advise defendant, the court that took his plea violated not only the statute, but also his right to due process.
As defendant acknowledges, the court held in Quesada that "court" refers to the tribunal and the section 1016.5 advisements "may be given through any of the numerous individuals acting on behalf of that tribunal, including the judge, counsel, the court reporter, or the clerk. So long as the legislative purpose is advanced by having some person acting on behalf of the tribunal actually advise defendant of the immigration consequences of his plea and that advice is reflected 'on the record,' the actual adviser is immaterial. Indeed, it is common practice for the prosecutor or defense counsel, rather than the judge, to advise the defendant of his rights and the consequences of a guilty plea, including the immigration consequences, and to elicit the necessary waivers of those rights. [Citations.]" (Quesada, supra, 230 Cal.App.3d at pp. 535-536; see also Ramirez, supra, 71 Cal.App.4th at pp. 522-523.)
Defendant contends that the plain meaning of "court" is "judge" not "tribunal," and asks that we reject Quesada's reasoning because it was dictum. He also suggests that when someone other than the judge gives the advisements, the judge necessarily abdicates his responsibility to accept a plea, vacate the plea, allow defendant the opportunity to discuss the consequences of his plea, and determine whether the plea was voluntary. Defendant argues that such a procedure can create an atmosphere of subtle coercion.
We do not agree with defendant's characterization of the proceedings, or his restrictive definition of "court." Had the Legislature intended so narrow a definition, it would have used the word "judge." The Legislature enacted section 1016.5 to promote fairness by ensuring the defendant's awareness of the possibility of deportation and exclusion from admission to the United States. (Zamudio, supra, 23 Cal.4th at pp. 193-194 & fn. 7.) We do not agree with defendant that a more inclusive reading of "court" defeats this purpose. (Quesada, supra, 230 Cal.App.3d at pp. 535-536; Ramirez, supra, 71 Cal.App.4th at pp. 522-523.) We agree with Quesada's reasoning, and adopt it here.
VIII. No abuse of discretion
In sum, the trial court applied the correct standard of proof, and substantial evidence supported the prosecution's showing that the statutorily required advisements were properly given in this case. Defendant did not establish that he needed a Spanish interpreter, or that section 1016.5 required advisement from a judge rather than from the prosecutor. We conclude that the trial court did not abuse its discretion in denying the motion.
The trial court's order denying the motion to vacate defendant's 1986 conviction is affirmed.
CERTIFIED FOR PUBLICATION
I concur: BOREN , P. J.
People v. Arriaga, B225443
ASHMANN-GERST, J.--Concurring and Dissenting
Although I agree that the trial court did not abuse its discretion when it denied defendant's motion to vacate judgment and set aside his guilty plea under Penal Code section 1016.5,*fn5 I would not reach the issue. Rather, I would follow People v. Placencia (2011) 194 Cal.App.4th 489, 494 [holding that before a defendant may appeal the denial of a section 1016.5 motion, he must first obtain the certificate of probable cause required by section 1237.5]. Because defendant did not obtain a certificate of probable cause, I would dismiss his appeal.
Prior to section 1237.5, "'the mere filing of a notice of appeal required preparation of a record and, in many cases, appointment of counsel; only after expenditure of those resources would an appellate court determine whether the appeal raised non-frivolous issues that fell within the narrow bounds of cognizability.'" (People v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson).) The statute was designed to "'remedy the unnecessary expenditure of judicial resources by preventing the prosecution of frivolous appeals challenging convictions on a plea of guilty.' [Citation.]" (Ibid.) Applying section 1237.5 does not create "'undue hardship on defendants with potentially meritorious appeals. The showing required to obtain a certificate is not stringent. Rather, the test applied by the trial court is simply "whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion." [Citation.] Moreover, a defendant who files a sworn statement of appealable grounds as required by section 1237.5, but fails to persuade the trial court to issue a probable cause certificate, has the remedy of filing a timely petition for a writ of mandate [seeking review of the refusal to issue the certificate]. [Citations.] Thus, if he complies with section 1237.5, a defendant has ample opportunity to perfect his appeal.' [Citation.] Moreover, if all else fails, the most fundamental kinds of attack remain available on habeas corpus." (People v. Buttram (2003) 30 Cal.4th 773, 793.) To implement section 1237.5, the Judicial Council promulgated California Rules of Court, rule 8.304(b). (Johnson, supra, 47 Cal.4th at p. 677, fn. 3.) The rule provides that to appeal after a no contest or guilty plea, the "defendant must file in . . . superior court--with the notice of appeal . . . --the statement required by [section 1237.5] for issuance of a certificate of probable cause." (Cal. Rules of Court, rule 8.304(b)(1).) But "[t]he defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [¶] (A) The denial of a motion to suppress evidence under [section 1538.5]; or [¶] (B) Grounds that arose after entry of the plea and do not affect the plea's validity." (Cal. Rules of Court, rule 8.304(b)(4).)
There is no basis for implying an exception into section 1237.5 for an appeal following the denial of a section 1016.5 motion. An immigration advisement is no more important than any other advisement necessary for a defendant to understand the consequences of entering a no contest or guilty plea. And the need for a trial court to perform a gatekeeping function exists any time a defendant seeks to challenge the validity of a plea on appeal. The exception to section 1237.5 proposed by the majority conflicts with legislative intent and public policy, and it also conflicts with California Rules of Court, rule 8.304(b). Regardless, the majority opines that an exception is dictated by People v. Totari (2002) 28 Cal.4th 876 (Totari). But Totari did not discuss the applicability of section 1237.5 to an appeal from the denial of a section 1016.5 motion. A case is not authority for a proposition not considered. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.)
ASHMANN-GERST , J.