Opinion
E065762
03-01-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS BALDERAMA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. H92F0410) OPINION APPEAL from the Superior Court of Riverside County. Richard Todd Fields, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jesus Balderama appeals from the trial court's order denying his petition to withdraw his no contest plea from 1992, filed under Penal Code section 1016.5. The trial court did not abuse its discretion when it found the minute order of the plea hearing was sufficient, admissible evidence that defendant was advised of the immigration consequences of his plea. We affirm.
Section references are to the Penal Code except where otherwise indicated.
PROCEDURE
On July 30, 1992, the People filed a felony complaint charging defendant with conspiring to transport marijuana (Pen. Code, § 182), and cultivating marijuana (Health & Saf. Code, § 11358).
On December 17, 1992, defendant pled no contest to an added count of possessing marijuana for sale. (Health & Saf. Code, § 11359.) On February 3, 1993, the court suspended the imposition of sentence and placed defendant on formal probation for 36 months. On June 28, 1994, defendant admitted to violating his probation, was ordered to serve 45 days in jail, and was continued on probation.
On January 11, 2016, defendant filed a motion to withdraw his plea from 23 years before. Defendant stated he "is currently in deportation/removal proceedings and his conviction in this case prevents him from obtaining a waiver of his removal and prevents him from ever obtaining legal immigration status in the future." Defendant argued there was no evidence the court gave the advisement of immigration consequences required by section 1016.5.
The People filed its opposition on January 22, 2016. The People argued that, although the felony plea form defendant signed is no longer available because of the passage of time, the minute order from the plea hearing shows that defendant did receive the requisite advisement from the court. The People attached as exhibit 1 to its opposition a printout from the court's computer system of the electronic minute order for defendant's plea hearing on December 17, 1992. The printout is dated January 22, 2016.
Defendant filed his reply on March 4, 2016, countering that the minute order was not sufficient evidence of the advisement, considering the plea waiver form and the record transcript of the plea hearing had been destroyed. Defendant disputed whether the minute order attached to the People's response is "in fact a true reflection of what transpired at the December 17, 1992 hearing." This is because the minute order and the rest of the court's electronic file were apparently recreated by the court clerk's office from the documents that defense counsel supplied—the felony complaint, and, more important, the manually created docket in the case bearing the seal of the Municipal Court for the Mt. San Jacinto Judicial District of Riverside County and certified on August 17, 1994. This docket was attached as exhibit 2 to defendant's reply, and can be found at pages 58 to 63 in the clerk's transcript for this appeal. Attached as exhibit 1 to defendant's reply is the declaration of defense counsel, stating that when he went to the court on December 4, 2015, to review the file on this case: "I was informed by the clerk that there was no record of this case in the computer system and that in all likelihood a file would have to be recreated based on the documents that I supplied. I supplied the clerk's office with the felony complaint and manually created docket."
The docket entry for December 17, 1992, indicated the court found that "defendant understood possible consequences of his plea," but did not show that defendant was specifically advised of the immigration consequences of his plea as required by section 1016.5, discussed in detail post.
The court held a hearing on the petition on March 4, 2016. After hearing argument from both sides, the court denied the motion on the ground that the minute order for the plea hearing indicated, "[d]efendant advised if not a citizen, conviction may result in deportation, exclusion from admission to this country, or denial of naturalization." On the authentication issue, the court referenced Evidence Code section 452, subdivision (d) [judicial notice of the records of any court of this state], and Evidence Code section 664 [official duty presumed regularly performed]. Defense counsel argued it was unclear whether the court clerk created the electronic minute order only from the docket document he submitted, which did not mention the immigration advisement, or whether the minute order reflected information from documents in addition to the docket document. If the latter, defendant questioned when the court clerk found the additional documents, because on December 4, 2015, the clerk told him there were no documents on file for this case. During this exchange with defense counsel, the court noted that it had also had similar questions, and so had typed the case number into the court's computer system to see what would appear. The court had found the minute order at issue, as well as the imaged docket document that defense counsel had supplied to the court. The court stated that the minute order "goes well beyond what you brought, things you probably wouldn't even know." The court noted that the authentication issue was "the hardest part I have with the whole thing," but ultimately concluded that the minute order was admissible, based on the official duty presumption in Evidence Code section 664 and the lack of "evidence otherwise to disregard the Court minutes," that is, evidence to rebut the presumption that the court clerk had properly carried out its official duty to keep accurate records of the case.
This appeal followed.
DISCUSSION
Defendant argues the trial court erred when it denied his motion to vacate his no contest plea because the record fails to demonstrate that he was given the advisement required by section 1016.5. Specifically, defendant contends the minute order for the no contest plea hearing was insufficient, by itself, to prove compliance with section 1016.5, subdivision (a). Defendant also argues the court erred when it overruled the defense objection to admitting the minute order into evidence, and, in the alternative, defense counsel was ineffective for failing to object to the minute order as inadmissible hearsay.
The Minute Order as Sufficient Evidence of Section 1016 .5 Compliance
A trial court's denial of a motion to vacate under section 1016.5 is reviewed for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).) The court deciding whether the defendant has made a sufficient showing under section 1016.5 "is the trier of fact and . . . the judge of the credibility of the witnesses or affiants. Consequently, it must resolve conflicting factual questions and draw the resulting inferences. [Citation.]" (People v. Quesada (1991) 230 Cal.App.3d 525, 533 (Quesada), superseded by statute on other grounds as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207, fn. 5.)
"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).)" (People v. Arriaga (2014) 58 Cal.4th 950, 955 (Arriaga).) It is not necessary, however, that the trial court advise the defendant orally; a written advisement, if understood by the defendant, is sufficient. (People v. Ramirez (1999) 71 Cal.App.4th 519, 523 (Ramirez); Quesada, supra, 230 Cal.App.3d at p. 536.) Nor is it necessary for the trial court, personally, to give the advisement. It may be given by counsel, the court reporter, or the clerk. As long as "some person acting on behalf of the tribunal" actually advises the defendant of the immigration consequences, the adviser's identity is immaterial. (Quesada, at pp. 535-536.)
If the court fails to give the admonition required by section 1016.5, subdivision (a), upon defendant's motion, it must vacate the judgment and allow the defendant to withdraw his or her plea and enter a plea of not guilty if the defendant can show that the conviction or offense to which he or she pleaded guilty or nolo contendere might result in his or her deportation, exclusion from admission to the United States, or in denial of naturalization. (§ 1016.5, subd. (b).) To succeed on a motion to vacate under section 1016.5, "a defendant must establish (1) that the advisements were not given; (2) that the conviction may result in adverse immigration consequences; and (3) that the defendant would not have pled guilty or no contest had proper advisements been given." (Arriaga, supra, 58 Cal.4th at pp. 957-958; accord, People v. Totari (2002) 28 Cal.4th 876, 884; Zamudio, supra, 23 Cal.4th at p. 192.) In this case, we are concerned with the first element.
The governing statute provides that the advisement shall be administered "on the record." (§ 1016.5, subd. (a).) "Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement." (§ 1016.5, subd. (b).) This constitutes a rebuttable presumption affecting the burden of proof. It places upon the prosecution the burden of proving by a preponderance of the evidence the nonexistence of the presumed fact. Thus, the prosecution must prove that the required advisements were given. (People v. Dubon (2001) 90 Cal.App.4th 944, 953-954 (Dubon).) Here, the prosecution provided a copy of the minute order for the plea hearing.
The Dubon court examined the definition of "record" under the relevant statutes and case law. The court concluded that a court's minute order indicating that the section 1016.5 advisement was given can constitute a " 'record' " under section 1016.5 that the advisement was given sufficient to preclude the presumption from arising. (Dubon, supra, 90 Cal.App.4th at p. 954.) However, a section 1016.5 advisement must address deportation, exclusion, and denial of naturalization, a minute order that does not indicate that all three issues were addressed is insufficient. (Dubon, at p. 955.) Nonetheless, once the rebuttable presumption has arisen, such a minute order constitutes "significant evidence" rebutting the statutory presumption. (Ibid.)
Here, the minute order dated December 17, 1992, states the "felony plea form is incorporated herein and includes the following advisements and waivers: [¶] . . . [¶] Defendant advised if not a citizen conviction may result in deportation, exclusion from admission to this country or denial of naturalization." Under Dubon, the minute order contains the correct language referring to: (1) deportation; (2) exclusion; and (3) denial of naturalization. Thus, under Dubon, the minute order in this case is significant evidence that rebuts the statutory presumption and is proof that the statutory advisements were given to defendant.
To conclude, the evidence here in the form of the minute order dated December 17, 1992, established defendant was properly advised of his immigration consequences in compliance with section 1016.5. The trial court's ruling was not an abuse of discretion.
The Minute Order was Admissible Evidence and Counsel was Not Ineffective
Defendant challenges the admissibility of the minute order dated December 17, 1992. First, defendant argues the document was not sufficiently authenticated. Second, defendant argues the minute order fails under the secondary evidence rule to establish the contents of the missing plea form, which was incorporated into the minute order.
On the authentication issue, we first point out that a trial court's finding that sufficient foundational facts have been presented to support a writing's admissibility is reviewed for abuse of discretion. (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 684.) Although defendant argues the court should not have considered the minute order over the defense objection because of defense counsel's suspicion that the electronic minute order "magically appeared" after the clerk told him there was no record of this case in the court's computer system, the defense simply did not provide solid evidence to rebut the presumption in Evidence Code section 664. Without more than has been provided on this record, we cannot conclude that the trial court abused its discretion when it found the electronic minute order to be properly authenticated.
We assume that defendant has preserved the issue of whether the secondary evidence rule prohibits using the electronic minute order to prove the contents of the plea form. The secondary evidence rule provides: "(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: [¶] (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion; [¶] (2) Admission of the secondary evidence would be unfair." (Evid. Code, § 1521.) Here, admission of the secondary evidence would certainly not be unfair, considering defendant asks to have his conviction for marijuana sales vacated after 23 years. In addition, as the People point out, there is not a genuine dispute regarding the content of the writing, here the plea form. Defendant seeks to have his conviction vacated on the basis that the People cannot positively show he was advised of the immigration consequences of his plea in 1992. Defendant does not himself positively aver that he was not so advised. Rather, his declaration merely states that he has a "vague recollection" of the case and that "I do not recall" having received the advisement. Finally, justice does not require the exclusion of the minute order to prove the contents of the plea form, again because of the long period of time between the conviction and the motion to vacate it.
Defense Counsel Was Not Ineffective for Not Raising Hearsay Objection.
Finally, defendant argues his counsel in the proceedings to vacate the 1992 conviction was ineffective for failing to object to the admission of the minute order as hearsay. A defendant who claims ineffective assistance of counsel must establish that his counsel's performance was deficient under an objective standard of professional competency, and that there is a reasonable probability that but for counsel's errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) Here, defendant cannot show that the court would have sustained a hearsay objection and refused to admit the minute order into evidence. More to the point, he does not actually argue such an objection would have been successful, only that a successful objection would have resulted in the exclusion of the sole item of evidence establishing he was provided with the immigration advisement. Therefore, we cannot find prejudicial ineffective assistance of counsel.
DISPOSITION
The trial court's order denying defendant's motion to vacate his 1992 conviction and to withdraw his plea is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
J.