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The People v. Victor D. Arriaga

December 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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.

BACKGROUND

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 work.

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.

DISCUSSION

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 ...


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