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People v. Arriaga

Supreme Court of California

April 7, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
VICTOR D. ARRIAGA, Defendant and Appellant

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Superior Court of Los Angeles County, No. A537388, Steven D. Blades, Judge. Court of Appeal, Second Appellate District, Division Two, No. B225443.

Joanna Rehm, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant

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Attorneys General, Lawrence M. Daniels, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

[320 P.3d 1143] [169 Cal.Rptr.3d 80] KENNARD, J.[*]

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. (Pen. Code, § 1016.5, subd. (a) (hereafter section 1016.5(a)); all further statutory references are to the Penal Code unless otherwise noted.) Here, defendant Victor D. Arriaga pled guilty to possessing a sawed-off shotgun. (Former § 12020, subd. (a), repealed by Stats. 2010, ch. 711, § 4, operative Jan. 1, 2012, and reenacted as § 33215.) Twenty-four years later, he challenged the conviction, asserting that he had not been given the required immigration advisements. The trial court's denial of defendant's motion to vacate his conviction was upheld on appeal. In reaching its conclusion, the Court of Appeal held, contrary to the Court of Appeal in People v. Placencia (2011) 194 Cal.App.4th 489 [122 Cal.Rptr.3d 922] ( Placencia ), that a defendant is not required to obtain a certificate of probable cause before appealing a trial court's denial of a motion to vacate a conviction under section 1016.5.

Both the Attorney General and defendant successfully petitioned this court for [169 Cal.Rptr.3d 81] review, each raising a different issue. Is a certificate of probable cause required to appeal a trial court's order denying a motion to vacate a conviction under section 1016.5, as the Attorney General contends? Our answer is " No." When, as here, proof of the required immigration advisements is not adequately shown in the record, must the prosecution prove by clear and convincing evidence that the advisements were given, as defendant contends? Our answer: The requisite standard of proof is preponderance of the evidence. We affirm the Court of Appeal's judgment.

I

Defendant, a native of Mexico, came to this country in 1970 and 10 years later became a lawful permanent resident. In 1986, he pled guilty to possessing a sawed-off shotgun [320 P.3d 1144] (§ 33215), an offense that carries the collateral consequence of possible deportation for noncitizens under federal immigration law (8 U.S.C. § 1227(a)(2)(C)). Some two ...


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