Opinion
G045169 Super. Ct. No. M13922
01-30-2012
THE PEOPLE, Plaintiff and Respondent, v. REZA ALIBABAEI, Defendant and Appellant.
Law Offices of John Y. Lee and John Y. Lee for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna and Meredith White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from postjudgment orders of the Superior Court of Orange County, Craig E. Robison and Richard M. King, Judges. Affirmed.
Law Offices of John Y. Lee and John Y. Lee for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna and Meredith White, Deputy Attorneys General, for Plaintiff and Respondent.
Reza Alibabaei appeals from an order denying his statutory (Pen. Code, §§ 1016.5, 1018) and nonstatutory motions to withdraw a 1994 guilty plea and petition for writ of error coram nobis on grounds of ineffective assistance of counsel and a denial of his state and federal Constitutional rights to due process and a fair trial. We find no merit in his contentions and affirm the court's orders.
All further statutory references are to the Penal Code unless otherwise noted.
I
FACTS
Alibabaei was born in Iran and fled to Sweden as a refugee after the 1984 Islamic revolution. He married an American citizen while living in Sweden, and he and his wife moved to the United States in 1991. He applied for and received lawful permanent resident status and "immediately began working in Southern California, home of the largest Persian population outside of Iran."
In 1994, Alibabaei was charged with three counts of felony check fraud (§ 476a, subd. (a)), six counts of felony second degree burglary (§§ 459, 460, subd. (b), 461.2), and a single count of grand theft (§ 487) for passing a series of bad checks and entering a bank to do so. On December 22, 1994, Alibabaei pled guilty to two counts of check fraud and three counts of second degree burglary on the condition he receive three-years probation with various terms and conditions, including payment of $24,349 in restitution. The factual basis on the plea form reads as follows: "In Orange County, [o]n 9/8/94 and 9/20/94 I willfully cashed a check drawn upon a bank in which I knew there were insufficient funds[.] [O]n 9/15/94, 9/16/94, and 9/21/94 I entered a commercial building w[ith] the intent to commit theft."
Alibabaei was represented by Attorney Barry Hammond at the time, and both men signed the plea form. Alibabaei initialed boxes on the plea form, signed an affidavit indicating he understood the charges against him, he had read the plea form, discussed it with his attorney, understood the plea agreement, understood his constitutional rights and voluntarily waived them to change his not guilty plea to guilty because he was "in fact guilty." He also initialed a box which states, "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
Attorney Hammond averred as follows: "I am attorney of record and I have explained each of the above rights to the defendant, and having explored the facts with him/her and studied his/her possible defenses to the charge(s). I concur in his/her decision to waive the above rights and to enter a plea of guilty. I further stipulate this document may be received by the court as evidence of defendant's intelligent waiver of these rights and that it shall be filed by the clerk as a permanent record of that waiver. No promises of a particular sentence or sentence recommendation have be[en] made by myself or to my knowledge by the prosecuting attorney or the court which have not been fully disclosed in this form." The court's minute order also indicates Alibabaei intelligently and voluntarily waived his legal and constitutional rights, and was advised of the immigration consequences of his plea.
Since the late 1970's, section 1016.5 has required the court to advise every defendant entering a guilty plea that doing so may result in deportation, exclusion, or a denial of naturalization.
In January 2002, Alibabaei, who was then represented by Attorney Fred W. Anderson, successfully moved to have all counts reduced to misdemeanors (§ 17, subd. (b)(3)) and expunged from his record (§ 1203.4).
Former section 1203.4 stated, in pertinent part, "(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . ."
In March 2009, the United States Department of Homeland Security detained Alibabaei when he returned from a trip overseas and initiated removal proceedings against him. The charging document alleges Alibabaei was "an alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime."
The notice of removal documents alleged the 1994 convictions and also reference a 1998 conviction for insurance fraud for which neither the appellate record nor appellate counsel provide any further documentation or information. This gap in the record presents no impediment to our resolution of this appeal. The extent of Alibabaei's criminal record is irrelevant to the issues raised here.
In August 2009, Attorney Philip D. Israels filed statutory and nonstautory motions to vacate the 1994 judgment, or in the alternative, a petition for writ of error coram nobis on Alibabaei's behalf. The motion alleged ineffective assistance of counsel, claiming Alibabaei's poor English skills went unnoticed by Attorney Hammond, who did not use or request the services of an interpreter and simply "handled everything with regards to [his] court case and the plea agreement." In his attached declaration, Alibabaei stated he spoke limited English in 1994, did not understand the proceedings or the contours of his plea agreement and therefore could not have legally waived his constitutional rights or understand the possible immigration consequences of the plea. His claim is supported by additional declarations from Alibabaei's longtime friends and neighbors, all of whom swore Farsi is Alibabaei's primary language and his English skills were extremely limited in 1994. Israels alleged prejudice from his inability to obtain the reporter's transcript from the 1994 change of plea hearing, which he argued makes it "impossible to really determine" if his client understood his rights, or the immigration consequences of his plea.
Alibabaei also submitted a declaration from Warren M. Winston, the immigration attorney Alibabaei has retained to represent him in the removal proceedings. There are two items of particular interest in Winston's declaration, (1) the fact that the federal statutes governing immigration changed drastically in 1996 by eliminating discretionary relief for most felony convictions, and (2) Alibabaei may apply for relief in the immigration court if he is found removable; of course prevailing in such proceedings will be more difficult with the 1994 conviction on his record.
During the hearing on the motions, Israels laced his argument with repeated references to the inadequate record before the court and the court was somewhat sympathetic. However, although Israels provided the court with only a copy of the original information and the minute order from the plea, he did not include the standard Tahl form. When the court located this document in its own files, the tenor changed: "The court: The wind was blowing in your favor a few minutes ago, but the Tahl form, frankly, has changed things; that I have to put those two things [the Tahl form and minute order] together and make reasonable inferences and certain presumptions about the propriety of findings made by my fellow judicial officers 15 years ago, also in conjunction with your client's delay in seeking relief, which if he hadn't delayed 15 years we'd have some further documentation in the form of a transcript that might be very helpful."
In January 2011, Alibabaei filed a petition for writ of habeas corpus combined with a second motion to withdraw the plea/petition for error coram nobis. The court denied the petitions, finding habeas corpus unavailable because Alibabaei was not in custody and coram nobis relief is unavailable for claims of ineffective assistance of counsel. The court did not mention Alibabaei's renewed motion to vacate. In March, Alibabaei filed an unsuccessful motion for reconsideration, and a second motion for reconsideration fared no better.
In April, counsel filed a notice of appeal and application for certificate of probable cause (§ 1237.5). The court denied all requests for relief, finding his application for a certificate of probable cause "moot because orders denying statutory motions to vacate, non-statutory motions to vacate and set aside judgment and petitions for writ of error coram nobis are appealable . . . ." Moreover, the denial of a petition for writ of habeas corpus is not an appealable order. This appeal followed.
Section 1237.5 states, "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Alibabaei filed a petition for writ of mandate in this court in June 2011, which we summarily denied on November 23, 2011. (Alibabaei v. Superior Court (G045364, Nov. 23, 2011) [nonpub. order].)
II
DISCUSSION
We first discuss the Attorney General's assertion Alibabaei's appeal should be dismissed for lack of a certificate of probable cause. Relying primarily on People v. Placentia (2011) 194 Cal.App.4th 489 (Placentia), the Attorney General argues anything affecting the validity of the plea requires a certificate of probable cause. (See Id. at p. 494.) We are not persuaded. In Placentia, the appellate court held, "An appeal from a denial of a section 1016.5 motion is technically from an 'order made after judgment' [citation] and not 'from a judgment of conviction upon a plea' of guilty or nolo contendere. [Citation.] But, a section 1016.5 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.]" (Id. at p. 494.) However, the California Supreme Court held otherwise in People v. Totari (2002) 28 Cal.4th 876, 884 (Totari), a conclusion more recently followed in People v. Arriaga (2011) 201 Cal.App.4th 429, 434-435. We need not delve too deeply into the issue here. For now it is enough that we agree with the trial court's reliance on Totari when finding moot Alibabaei's application for a certificate of probable cause.
The defendant in Totari obtained a certificate of probable cause, but nothing in the opinion suggests this was a prerequisite to the appeal. (See Totari, supra, 28 Cal.4th at p. 880.)
As for the merits of Alibabaei's case, section 1018 provides, in pertinent part, "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) "The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty." (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) We review the trial court's decision under the abuse of discretion standard. (People v. Weaver (2008) 118 Cal.App.4th 131, 146.)
Alibabaei, who was represented by counsel when he pled guilty, filed his motion to withdraw plea 15 years after judgment was entered this case. Therefore, the trial court correctly denied the statutory motion. Here, Alibabaei could properly obtain leave to withdraw his guilty plea solely by petition for the common law remedy of a writ of error coram nobis. (People v. Wade (1959) 53 Cal.2d 322, 339, disapproved on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381.) However, "[c]oram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel [citation] or where the claim is that the defendant did not receive effective assistance from counsel [citations]." (People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983.) Furthermore, "[t]he writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]" (People v. Soriano (1987) 194 Cal.App.3d 1470, 1474; see also People v. Shipman (1965) 62 Cal.2d 226, 230.)
Alibabaei claims the mistake of fact was the court and his attorney's failure to realize he could not understand or speak English and failed to provide an interpreter. However, after reviewing the entire record, we find no abuse of the trial court's discretion in its denial of appellant's motion to withdraw his plea or his petition for writ of error coram nobis. Alibabaei correctly did not assert new evidence going to the merits of the factual issues that had been determined. Rather, he contends his attorney railroaded him into pleading guilty by ignoring his inability to communicate in English and failing to explain any part of the proceedings. However, the Tahl form and minute order contradict these assertions and any credibility determination was for the trial court to make.
To the extent appellant sought to assert a claim of ineffective assistance of counsel, the record does not support this claim either. It appears Alibabaei pled guilty at counsel's recommendation and for good reason. He received a grant of probation instead of a state prison sentence, the dismissal of several counts, and the chance to expunge his record upon successful completion of probation. The record demonstrates his attorney advised him of his constitutional rights and the possible immigration consequences of his plea. For reasons that no one could have anticipated, including the later terrorist attacks on September 11, 2001, the discretion accorded courts to make recommendations against deportation or find unusual circumstances justifying special treatment have changed in the 15 years since Alibabaei's plea.
Israels also argues his client should be able to withdraw his plea on equitable grounds. This is the more difficult question. We accept that Alibabaei was forced to flee his native land under difficult circumstances, and that he and family will suffer if he is forcibly returned. However, these are matters more properly considered in the pending immigration proceedings, and we posit no opinion on the ultimate outcome. For all of the reasons stated above, the judgment must be affirmed.
III
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.