Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS981688.
McAdams, J.
Defendant Hugo Barraza appeals from the denial of his motion to vacate the judgment in Monterey County Superior Court action SS981688. We will affirm.
PROCEDURAL BACKGROUND
In 1998, defendant was charged in Monterey County Superior Court action SS981688 with one count of transporting for sale a controlled substance from one county to another noncontiguous county, one count of transportation of a controlled substance, and one count of possession for sale of a controlled substance. (Health & Saf. Code, §§ 11352, subds. (b) & (a), 11351.) It was further alleged as to all three counts that the controlled substance at issue weighed one kilo or more. (Health & Saf. Code, § 11370.4.)
On September 10, 1998, following an unsuccessful motion to suppress, and pursuant to a negotiated disposition, defendant pleaded no contest to count 1, transportation of a controlled substance from one county to a noncontiguous county, and admitted the weight allegation. According to the waiver form signed by defendant on that date, he entered into the plea bargain with the understanding that his plea and admission exposed him to a 12-year maximum state prison sentence, but that “execution of any sentence” would be suspended and that he would “be admitted to felony probation.” According to the waiver form, defendant had “discussed the charge(s), the facts, the possible defenses, and the consequences” of his plea with his attorney, and entered his plea “freely and voluntarily and of [his] own accord with full understanding of all matters set forth in the information and in this waiver, ” and with the further understanding that “if I am not a citizen of the United States a plea of ‘Guilty/No Contest’ could result in deportation, exclusion from admission to this country, and/or denial of naturalization.” The waiver form was signed by his attorney, who averred that he had explained and discussed the possible consequences of defendant’s pleas with him, and by the court interpreter Antonia Aragon, who averred that she had been “duly sworn [and] truly translated this form and all questions therein to the defendant in the Spanish language, ” and that “the defendant indicated understanding of the contents of the form and then initialed and signed the form.” The remaining counts were to be dismissed.
As of January 14, 2009, the court reporter’s notes of the proceedings on September 10, 1998, had been destroyed pursuant to Government Code section 69955, subdivision (e), and a reporter’s transcript could not be prepared. However, the waiver form signed by defendant that day exists.
On October 13, 1998, defendant appeared with counsel and court interpreter Antonia Aragon. The court sentenced defendant to six years in state prison (three years for the substantive offense plus three years for the weight enhancement), but suspended execution of that sentence for four years and placed defendant on probation, on the condition, among others, that he serve 365 days in the county jail, with 159 days credit for time served. Counts 2 and 3 were dismissed on the district attorney’s motion and in the furtherance of justice.
On June 8, 2006, defendant, a Mexican citizen and a lawful permanent resident of the United States, applied for admission to the United States at the San Ysidro Port of Entry and was denied admission pursuant to 21 United States Code, section 802, because of his conviction in Monterey County Superior Court for violation of Health and Safety Code section 11352, subdivision (b).
On September 19, 2008, defendant filed a “motion to vacate for failure of court to give immigration advisement.” The motion was accompanied by defendant’s declaration, the probation report from 1998, documents relating to defendant’s deportation, and a copy of the waiver form signed by defendant on September 10, 1998, as well as a memorandum of points and authorities.
In his declaration, defendant avers that “at the time of trial [he] could not understand or speak even a word in the English language.” His former attorney, Robert Baker, “did not speak Spanish, and as a result there was never any communication between us, as I spoke only Spanish at the time.” Mr. Baker came to the jail to see him once with a young Spanish girl who “could not communicate properly in English with my former attorney, ” and the visit lasted five minutes. Mr. Baker returned to see him in the jail with a female interpreter, but Baker and the interpreter were “obviously not able to communicate nor understand each other” and as a result “the visit was aborted.”
Mr. Baker promised him that he “would not be deported nor suffer any immigration consequences” as a result of his plea agreement. He said that defendant “would get the time for which I have already been detained, as time served, and that I would not be deported thereafter.” Baker threatened to withdraw from the case if defendant insisted on “pursuing my defense to a logical conclusion.” He also informed defendant that a trial “would cost me a lot of money, and that if I lose, I could get between six to ten years in jail, and this created morbid fear in me that beclouded my normal ability to rationally comprehend, beside the fact that I did not understand the English language at the time.” Mr. Baker advised him to plead “nolle contendere, ” even though he was “not guilty of the crime charged” and was sure he “would be vindicated if I have my day in court.” An additional reason for taking the plea agreement was that he “wanted to avoid the stress of trial on myself and my family.”
Defendant also averred that he “was never sufficiently, properly and satisfactorily advised on the immigration consequences of pleading a nolle contendere.” His attorney “required” him to put his name and initials on the waiver form and told him to “ ‘hurry up.’ ” In addition, his “understanding of the compulsory immigration advisement was further beclouded by the assurances offered by” his attorney that “everything will be O.K. (alright).” If he had understood that he “would face deportation as a result of [his] guilty plea, [he] would not have listened to and heeded the advise (sic) to change [his] original plea of not guilty....”
On or about June 9, 2006, defendant was deported by the Department of Homeland Security, and authorized his current attorney to appear on his behalf inasmuch as he was “still in banishment in Mexico.”
Defendant also made several averments related to his factual defense to the charges which we do not summarize here.
A hearing on defendant’s motion was heard on December 4, 2008. At that time, defendant’s counsel offered a declaration by Mr. Baker, defendant’s former attorney, which the court read. In the declaration, Mr. Baker stated that he had been subpoenaed to appear at the hearing; that he had previously spoken with the investigator for defendant’s current counsel and had advised the investigator that he had diligently searched for any file relating to defendant and had been unable to locate any such file. Thereafter, the minute order for the sentencing in defendant’s case had been faxed to him and he had reviewed it, but he still had “only a very vague recollection of representation of this Defendant. I am not even sure that my recollection matches with this defendant.” He had again conducted a diligent search for any files related to defendant Barraza and had been unable to find any.
No other witnesses were offered by the parties. Following argument, the motion was denied.
FACTS
The facts underlying defendant’s conviction may be briefly summarized from the probation report, inasmuch as they are not pertinent to the issues raised in this appeal. On June 29, 1998, police initiated a routine traffic stop of a car driven by codefendant Victor Barraza. Defendant was the passenger. After obtaining Victor Barraza’s consent to search the vehicle, the police found approximately two pounds of a white powdery substance resembling cocaine in the trunk of the car. Further investigation revealed that the car had crossed the U.S./Mexican border on four recent occasions at three different locations. Upon testing, the substance proved to be cocaine with a net weight of 1, 002.19 grams, or slightly more than one kilo.
DISCUSSION
In his opening brief, defendant makes seven separate but inter-related arguments which may fairly be treated for the purposes of discussion as three: the trial court’s denial of defendant’s motion to vacate was error because (1) trial counsel rendered ineffective assistance of counsel by affirmatively representing to defendant that he would not suffer any immigration consequences; (2) the trial court’s reliance on the waiver of rights form signed by defendant does not prove that he was advised of the immigration consequences of his plea by the court; and (3) he was denied the right to an interpreter. We need not reach a fourth contention – that the present appeal is not rendered moot by defendant’s deportation – because the People do not advance a claim of mootness in this court. For the reasons discussed below, we reject all of defendant’s claims.
Trial Court Failure to Advise of Immigration Consequences
Defendant argues that the trial court’s denial of his motion to vacate under Penal Code section 1016.5 was error because: (1) the court failed to conduct an evidentiary hearing regarding defendant’s knowledge of the immigration consequences of his no contest plea at the time of the plea; (2) defendant’s initials on the waiver form constitutes an insufficient basis for denying his motion, “where the initials were due to counsel’s ineffective advice”; and (3) in accordance with the Fifth, Sixth and Fourteenth amendments to the federal constitution, rule 11 of the Federal Rules of Civil Procedure, Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122, disapproved in Mills v. Municipal Court (1973) 10 Cal.3d 288, 307, footnote 16, as well as United States v. Kamer (1986) 781 F.2d 1380, 1383-1384, defendant’s “prior conviction should be vacated as he was never actually given statutory immigration advisement.”
Penal Code section 1016.5 “requires that, before accepting a plea of guilty or nolo contendere to any criminal offense, the trial court must advise the defendant that if he or she is not a United States citizen, conviction of the offense may result in deportation, exclusion from admission to the United States, or denial of naturalization. The statute allows the defendant to move to vacate the judgment if the trial court fails to give the required advisements.” (People v. Totari (2002) 28 Cal.4th 876, 879.) “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.] On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. [Citation.] Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. [Citation] Thus, in deciding the merits of defendant’s motion to vacate, it may be important for the trial court to determine the factual issue of knowledge.” (Totari, at p. 884.) We review the denial of defendant’s motion for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio); Pen. Code, § 1016.5, subd. (c).)
Denial of a nonstatutory motion to vacate or a writ of error coram nobis is similarly reviewed for abuse of discretion. (People v. Ibanez (1999) 76 Cal.App.4th 537, 544; People v. Gallardo (2000) 77 Cal.App.4th 971, 982 [“[f]or better or worse, the terms [writ of error coram nobis and motion to vacate the judgment] are often used interchangeably and the two procedures are similar in scope and effect”].)
Here, the trial court did not deny defendant “an evidentiary hearing” on any issue, including knowledge. Having been deported, defendant did not appear. At the hearing on the motion, defendant’s attorney tendered former counsel’s declaration in lieu of his appearance, and the court accepted it. Defendant’s attorney did not offer any witnesses. The court entertained argument on the record placed before it by the parties. Both parties submitted the motion on the documentary evidence presented. No failure to conduct a hearing has been shown.
In our view, the trial court did not abuse its discretion in denying defendant’s motion. Compliance with Penal Code section 1016.5 may be established by evidence that defendant signed a waiver former containing the immigration consequences specified in section 1016.5. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521-523.) Here, the waiver form, which was signed by defendant, his attorney and the court’s interpreter, clearly stated the entire statutory immigration advisement required by Penal Code section 1016.5. The advisement here was not partial, as it was in Zamudio. By initialing and signing the waiver form, defendant acknowledged that he knew and understood his plea could expose him to the adverse immigration consequences contained in the advisements. Furthermore, in his declaration, he did not aver that the court failed to advise him of the immigration consequences of his plea. Instead, he averred only that he “was never sufficiently, properly and satisfactorily advised on the immigration consequences of pleading nolle contendere.” His attorney “required” him to put his name and initials on the waiver form and told him to “ ‘hurry up.’ ” In addition, his “understanding of the compulsory immigration advisement was further beclouded by the assurances offered by” his attorney that “everything will be O.K. (alright).” He also averred that his understanding was “beclouded” by his anxiety and his lack of English. However, his recitation in the same declaration of his attorney’s advice concerning the advantages and disadvantages going to trial versus accepting the plea bargain tend to undermine his claim of lack of understanding. Under these circumstances, the trial court did not abuse its discretion in impliedly concluding that the trial court complied with its duty to advise under Penal Code section 1016.5, and that defendant understood the advisement.
Defendant takes the trial court to task for citing the prosecutor’s arguments as the bases for denying his motion, which bases, he asserts, “lacked merit and substance.” However, the trial court’s ruling will be upheld if the record shows any basis for the correctness of the ruling, even if the trial court stated an incorrect basis. (Davis v. Municipal Court (1988) 46 Cal.3d 64, 72, fn. 3; People v. Marquez (1992) 1 Cal.4th 553, 578; People v. Ainsworth (1990) 217 Cal.App.3d 247, 250, fn. 4.) Here, we have determined that the trial court’s ruling was correct, based on the record before it, regardless of its stated reasons.
It is true, of course, that the court’s advisement did not state that defendant would be deported. The statute does not require the court to advise a criminal defendant of the precise immigration consequences to which his plea exposes him. Nor does the statute impose any duty to advise on counsel, or the court interpreter. Therefore, to the extent that defendant argues that his motion to vacate under Penal Code section 1016.5 should have been granted because of ineffective assistance of counsel, or lack of an interpreter, his argument is misdirected.
Ineffective Assistance of Counsel
Defendant’s main complaint is that his former attorney did not advise him of the specific and dire immigration consequences of his plea, namely, that his no contest plea to a violation of Health and Safety Code section 11352, subdivision (b) would result in his certain deportation. In Padilla v. Kentucky (2010) ___ U.S. ___ [130 S.Ct. 1473] (Padilla), the defendant pleaded guilty to the transportation of a large amount of marijuana, a crime which, “like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i).” (Id. at p. 1477, fn. 1.) In his habeas petition, Padilla alleged that his counsel not only failed to advise him of the immigration consequences of his plea, but also told him that he did not have to worry about his immigration status because he had been in the country for so long. In fact, Padilla’s guilty pleas to the drug charges made his deportation a virtual certainty. Padilla alleged that he relied on the erroneous advice from his counsel and would have insisted on going to trial if he had received correct advice. The Supreme Court held that “Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.... [C]constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” (Id. at p. 1478.) The Court remanded the case to the state court for a determination of prejudice under the second prong of Strickland v. Washington (1984) 466 U.S. 668. (Padilla, at pp. 1483-1484.)
Padilla cannot help defendant because, as he concedes in his opening brief, unlike Padilla, he was no longer in actual or constructive custody when he first advanced his claim of ineffective assistance of counsel, and therefore could not avail himself of a remedy by way of writ of habeas corpus. (People v. Villa (2009) 45 Cal.4th 1063.) He therefore brought his claim in a motion to vacate the judgment. However, as we noted above, ineffective assistance of counsel is not a basis for relief under Penal Code section 1016.5, which addresses only the trial court’s failure to advise of potential immigration consequences of a plea. Nor is it a basis for relief under a nonstatutory motion to vacate or writ of error coram nobis. (People v. Kim (2009) 45 Cal.4th 1078.) Defendant argues that “[e]quity will not suffer a wrong to go without a remedy... and looks at the substance and not the form.” In Kim, our Supreme Court considered and rejected several arguments in favor of “expanding coram nobis to create a generalized common law postconviction, postcustody remedy” (Kim, at p. 1107; id. at pp. 1105-1107.) As the Court explained, “criminal defendants have ample opportunities to challenge the correctness of the judgments against them.” (Id. at p. 1105.) As an intermediate appellate court, we are bound by that ruling. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Denial of An Interpreter
The California constitution guarantees every “ ‘person unable to understand English who is charged with a crime [the] right to an interpreter throughout the proceedings.’ ” (People v. Aguilar (1984) 35 Cal.3d 785, 790; People v. Menchaca (1983) 146 Cal.App.3d 1019.) Pointing to paragraphs 3, 5, 6, 7, 13, 14, 15, 16, 17, and 18 of his declaration, defendant argues that he was denied that right. However, his declaration nowhere avers that he was denied an interpreter when he was in court. He avers that his former attorney misadvised him as to the immigration consequences of his plea (¶ 3), that he pleaded guilty because of the misadvice (¶ 5), that his attorney threatened to withdraw from the case if he insisted on pursuing his defense to a logical conclusion (¶ 6), that his attorney informed him that a trial would cost a lot of money, and if he lost he could get between six and 10 years in prison, and this information created a morbid fear in him that beclouded his normal ability to comprehend, plus he did not understand English (¶ 7), his attorney did not speak Spanish and there “was never any communication between” them (¶ 13), the interpreters who accompanied his attorney during jail visits were unable to communicate in English with his attorney (¶¶ 14, 15), his attorney asked him to sign the waiver form (¶ 16), and his attorney required him to put initials and sign the waiver form and told him to hurry up (¶ 18). On the other hand, the record on appeal reveals that defendant had a sworn court interpreter for every court appearance; the sworn court interpreter signed her name on the waiver form to acknowledge that she “truly translated this form and all questions therein to the defendant in the Spanish language” and that “[t]he defendant indicated understanding of the contents of the form and then initialed and signed the form.” Further, defendant’s declaration tends to establish that he and his attorney had some communication about the lack of immigration consequences, the plea bargain, and the relative risks inherent in going to trial, which defendant understood, his contrary averment notwithstanding. On this record, the trial court did not abuse its discretion in denying defendant’s motion to vacate and/or writ of error coram nobis on the grounds that he lacked an interpreter.
CONCLUSION
Defendant has not demonstrated that the trial court abused its discretion in denying his statutory and nonstatutory motion to vacate his plea and admission in Monterey County action number SS981699.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
We reject defendant’s contention that this court should review the denial of his motion to vacate the judgment de novo. The authorities he cites for that proposition are inapposite. People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 states that the denial of a motion for a new trial is reviewed de novo, but that the trial court’s underlying evidentiary rulings are review for abuse of discretion. People v. Olive (2001) 92 Cal.App.4th Supp. 21, 25 states that an appellate court applies a de novo standard of review to “interpretation of a statute and the determination of its constitutionality.”