Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct.No. 147787
Duffy, J.
Defendant Jose Chavez pleaded nolo contendere (no contest) in 1991 to one count of lewd and lascivious conduct upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and was placed on probation. Nearly 16 years later, after satisfying the conditions of probation (including incarceration in county jail), defendant moved to withdraw his plea. He claimed that he did not receive the advisements concerning potential adverse immigration consequences required under section 1016.5 prior to a defendant’s entry of plea of guilty or no contest. The court denied the motion.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant claims on appeal that the court abused its discretion by denying the motion to withdraw his plea. We reject that assertion and, accordingly, we will affirm.
FACTS
This appeal concerns the question of whether the court erred in denying defendant’s motion to withdraw the plea, pursuant to section 1016.5. We therefore present a short summary of the facts relative to the underlying conviction as taken from the probation report.
On January 14, 1991, it was reported to the San Jose Police Department that A., defendant’s 12-year-old daughter, had been molested by her father during 1990 weekend visits. Sometime before Christmas of that year, defendant started to buy A. lingerie and asked her to try on bras and panties. “It was [A.’s] belief that her father meant for her to model the underwear. However, she told him, ‘No, I’ll do it at home.’ ” A. told the police that approximately two weeks later, defendant had “ ‘[p]ushed [her] into the bedroom.’ ” He put his hands underneath A.’s shirt and “ma[de] skin to skin contact[,] in the area of her breasts. He also put his hands down her pants, touching her vagina.” Defendant told A., “ ‘Don’t tell anybody where I’m touching you, keep it a secret.’ ”
A. did not tell anyone about the incident until she attended a program at school concerning child molestation. In speaking to A.’s mother, the police learned that she noticed a change in A.’s personality around December 1990. At that time, A., who was normally talkative, became withdrawn and would either cry or “ ‘look sad.’ ” “She also noticed [that A.] had large sums of money, i.e., $20 bills, when she came home from visits with her father.” The mother also “showed police the lace bikini underwear the defendant [had] purchased for his daughter. She felt the underwear was inappropriate for a girl of 12 years old.”
A.’s mother agreed with the police to place a pretext call to defendant, her ex-husband. In that call, defendant, after denying any wrongdoing, eventually “admitted he [had] touched [A.’s] ‘top’ once by accident.” Later in the call after A.’s mother continued to press the matter, defendant said, “ ‘For nothing else to give you peace, o. k. I did it and I won’t do it again.’ ”
When the police met with defendant and his attorney, defendant denied that he had molested his daughter. He said that he thought that his ex-wife had made up the story about his daughter “to cause trouble between [defendant] and his new wife.”
PROCEDURAL BACKGROUND
Defendant was charged on February 14, 1991, with one count of lewd and lascivious conduct upon a child under the age of 14 (§ 288, subd. (a)). The conduct was alleged to have occurred between November 1, 1990, and December 30, 1990. Defendant pleaded no contest to the one count. On September 10, 1991, the court, the Honorable Ronald T. Lisk, granted defendant probation for five years and included as a probation condition that defendant serve six months in the county jail. On May 29, 1997, the court granted defendant’s motion to dismiss the charges after fulfillment of the conditions of probation pursuant to section 1203.4.
In March 2007, defendant filed a motion to withdraw his no contest plea pursuant to section 1016.5 on the ground that his plea was taken without defendant having been apprised of potential adverse immigration consequences associated with the plea. The People opposed the motion. After an evidentiary hearing, the court denied the motion to withdraw the plea on May 4, 2007. Defendant filed a timely notice of appeal from the order. The court’s order denying defendant’s motion to vacate pursuant to section 1016.5 is appealable. (People v. Totari (2002) 28 Cal.4th 876, 887.)
DISCUSSION
I. Issue On Appeal
Defendant asserts that the court erred by denying his motion to withdraw his no contest plea under section 1016.5.
II. The Order Denying Motion to Withdraw the Plea
A. The Motion to Withdraw the Plea
Defendant’s motion to withdraw his plea was accompanied by a memorandum of points and authorities, defendant’s declaration, and the declaration of his counsel. He stated in his motion, supported by his declaration, that he is not a United States citizen and that at the time of his no contest plea, he was not advised by the court or counsel that his conviction could result in his “deportation, denial of naturalization, or denial of citizenship in this country.” His attorney stated in her declaration that she had attempted to obtain a reporter’s transcript from the 1991 proceedings in which her client changed his plea to no contest but that she was advised by the clerk’s office that there was no such transcript available and that the court does not maintain transcripts for plea proceedings as old as that involved in the instant case. Defendant declared that in October 2006, representatives of Immigration and Customs Enforcement placed him into custody as a result of his 1991 conviction. He claimed that he first became aware that a conviction of the offense to which he pleaded no contest in 1991 might have adverse immigration consequences when deportation proceedings were commenced against him in November 2006. He asserted that he would not have entered the no contest plea in 1991 had he been advised of potential adverse immigration consequences associated with such a plea.
As we will discuss, section 1016.5, subdivision (a) requires the court, before accepting a guilty or no contest plea, to advise the defendant that if he or she is not a citizen, “a 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.” “ ‘Naturalization’ is a process by which an eligible alien, through petition to appropriate authorities, can become a citizen of the United States. [Citation.]” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 208 (Zamudio).) Thus, defendant’s motion, as reflected in the statement quoted and footnoted in the text, contains a redundancy and does not mirror the language of the statute concerning the required advisements of potential immigration consequences.
The People opposed the motion, arguing that defendant had failed to establish either that he was diligent in seeking the relief or that the court had failed to advise him of potential adverse immigration consequences as required under section 1016.5, subdivision (a). In the opposition, the People asserted that defendant had actual knowledge that there were possible adverse immigration consequences associated with his plea at least by the time he was sentenced in connection with the 1991 conviction. In support of this contention, the People presented the declaration of Christine Mattison, defendant’s attorney in 1991, who declared that, although she did not specifically recall the case, it had been her habit and custom to advise any client of hers “of immigration consequences.” She declared further that since in this instance, the probation report noted that the probation department had notified the Department of Immigration and Naturalization prior to sentencing, had she not advised defendant here about adverse immigration consequences “initially, [she] would have discussed the probation report with this defendant including what was meant by the notice to immigration authorities.” Defendant (the People argued) was thus not diligent in seeking to withdraw his plea, where he waited 16 years after becoming aware of potential immigration consequences associated with the plea to bring his motion.
The probation report dated July 23, 1991 (i.e., approximately one and one-half months before defendant’s sentencing hearing), noted that “[t]he Department of Immigration and Naturalization Service has been notified of the defendant’s arrest and conviction.”
The People also based their opposition on the declaration of retired Judge Lisk, the judge who took defendant’s plea in 1991. He declared that in 1991, he accepted numerous guilty pleas in connection with criminal cases assigned to him for settlement prior to preliminary examination. Judge Lisk stated that while he had no specific recollection of defendant’s 1991 case, “it was always [his] practice to advise all defendants entering a guilty or no contest plea of the right against self-incrimination; to jury trial; and to confrontation and cross-examination of adverse witnesses. . . . [¶] It was also [his] habit and custom prior to acceptance of a plea of guilty or no contest to advise each defendant in the language of Penal Code section 1016.5 that if he was [sic] not a citizen, conviction of the offense for which he had been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization . . . .” He also declared that in receiving pleas, he would use a checklist that included immigration consequences advisements pursuant to section 1016.5. The People therefore asserted that there was a preponderance of evidence showing that defendant was, in fact, advised of the potential adverse immigration consequences of his plea as required by section 1016.5, subdivision (a).
In defendant’s reply papers, he asserted that, since the Mattison and Judge Lisk declarations did not directly prove that defendant was advised of adverse immigration consequences associated with his no contest plea—rather, the declarants stated only that it was their habit and custom to give such advisements—the People did not show that defendant was not diligent in seeking relief. Defendant replied further that neither of the opposing declarations was sufficient to rebut the statutory presumption (under § 1016.5, subd. (b)) that the immigration consequences advisements were not given in this instance. Finally, defendant replied that he had made a clear showing of prejudice, i.e., that had he been advised of the potential adverse immigration consequences in 1991, he would not have pleaded no contest to the charged crime.
At the hearing, the court—although not required by law to do so (Zamudio, supra, 23 Cal.4th at p. 201)—afforded defendant the opportunity to present his live testimony in support of his motion to withdraw the plea. Largely, this testimony included a repetition of the key points made in his declaration, along with some additional background concerning the circumstances surrounding his no contest plea.
The court permitted a significant amount of testimony from defendant; the transcript of that testimony (excluding colloquy of counsel) consists of approximately 35 pages.
Although not a citizen of this country, defendant testified that he has lived in the United States since 1976. He originally emigrated from Mexico because of (unspecified) danger he faced there. Before entering his no contest plea, he had only a brief (approximately 15 minute) hallway conversation with Mattison, his attorney from the Public Defender’s Office, in which she told him that she was responsible for many cases and did not have the time to try his case, and that his exposure if convicted at trial was 40 to 50 years. Mattison mentioned nothing to him about possible immigration consequences, and the conversation took place in English, although his skills in that language were limited at that time.
Defendant testified that he did not recall everything that the judge said at the time he entered his no contest plea. He did not recall whether Judge Lisk advised him of the constitutional rights he would be waiving by pleading no contest. But defendant testified specifically that the judge did not advise him about any immigration consequences associated with his plea of no contest. He stated that, although he received a copy of the probation report sometime after sentencing, no one ever went over the report with him. Defendant would not have pleaded no contest had he been aware that there were potential adverse immigration consequences associated with his doing so. But he acknowledged that there were several factors that caused him at the time to enter the no contest plea, including his desire to not put his daughter through the ordeal of testifying; the risk of his receiving a prison sentence if convicted; and the prospect of his not going to prison and receiving work furlough if he pleaded no contest. Those considerations would not have mattered, however, if he had been advised at the time of the immigration consequences associated with his no contest plea.
Defendant also asserted that his ex-wife, in 1986 threatened to take some action that would cause him to “lose [his] green card.”
Defendant testified that in August 2006, upon his return from Mexico due to the death of his mother-in-law, he was detained at the airport. He faced deportation proceedings with a hearing scheduled five days after the hearing on the motion. Defendant has no other criminal convictions.
After hearing testimony and argument of counsel, the court denied defendant’s motion. Although recognizing that it was a difficult case, it found that “the People have rebutted the presumption that the defendant was not advised of the immigration consequences of his plea.”
B. Applicable Law
Section 1016.5, subdivision (a) requires the court, prior to accepting a guilty or no contest plea, to advise the defendant as follows: “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.” In the event these advisements are not given by the court, “and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on [the] defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” (§ 1016.5, subd. (b).) And the statute creates a rebuttable presumption that no such advisement was given if no court record confirms its existence: “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).) The requirement of advising a criminal defendant of immigration consequences associated with a guilty or no contest plea and the procedure allowing for the withdrawal of a plea in the absence of such advisements is based upon a finding of the Legislature that fairness dictates that noncitizen criminal defendants be advised that their admission of a crime may have an adverse impact upon them beyond the impact to citizen defendants.
“The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant’s counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction. It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.” (§ 1016.5, subd. (d).)
There are three elements to a successful motion by a defendant to withdraw his or her plea based upon the absence of advisements required under section 1016.5. “[A] defendant must establish: (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, i.e., if properly advised, he or she would not have pleaded guilty or nolo contendere. [Citation.]” (People v. Dubon (2001) 90 Cal.App.4th 944, 951-952 (Dubon), citing Zamudio, supra, 23 Cal.4th at pp. 192, 199-200, 209.) As to the first element, as noted, there is a rebuttable presumption that the advisements were not given where there is no court record of them. (§ 1016.5, subd. (b).) The presumption is one affecting the burden of proof (Dubon, supra, 90 Cal.App.4th at p. 953; see Evid. Code, § 605), and the prosecution bears “the burden of proving by a preponderance of the evidence the nonexistence of the presumed fact, i.e., that the required advisements were given. [Citations.]” (Dubon, supra, at p. 954.) A defendant, as a second component of a successful motion to withdraw a plea under section 1016.5, must establish that he or she “actually faces one or more of the statutorily specified immigration consequences.” (Zamudio, supra, 23 Cal.4th at p. 200.) The third element of prejudice involves a factual determination by the trial court as to “ ‘whether it is “reasonably probable” the defendant would not have pleaded guilty if properly advised.’ [Citations.]” (Id. at p. 210.) Proof that it was reasonably probable that the defendant would have received a favorable outcome had he or she gone to trial is not required in establishing such prejudice. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1245.) The factual question of the extent of the defendant’s knowledge of potential immigration consequences at the time of the plea “may be a significant factor in determining prejudice . . . .” (People v. Totari, supra, 28 Cal.4th at p. 884.)
In addition to proving these three elements, the defendant may be required to explain any delay in bringing a motion to withdraw a plea under section 1016.5. “ ‘[T]he trial court may properly consider the defendant’s delay in making his application, and if “considerable time” has elapsed between the guilty plea and the motion to withdraw the plea, the burden is on the defendant to explain and justify the delay. [Citation.] The reason for requiring due diligence is obvious. Substantial prejudice to the People may result if the case must proceed to trial after a long delay.’ [Citation.]” (People v. Totari (2003) 111 Cal.App.4th 1202, 1207, quoting People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.)
We review the trial court’s decision denying defendant’s motion to withdraw his plea under section 1016.5 for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 191; see also People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.) The court deciding whether the defendant has made a sufficient showing under section 1016.5 “is the trier of fact and . . . 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.)
C. Whether Denial of Motion Constituted Abuse of Discretion
We note at the outset that the court below based its decision on the finding that defendant had failed to establish that the requisite immigration consequences advisements were not given at the time he entered his plea of no contest. Because we conclude that the court’s finding that defendant failed to establish the first element required of a motion to withdraw a plea did not constitute an abuse of discretion, we need not address defendant’s showing with respect to the remaining two elements.
Indeed, the Attorney General does not dispute that defendant satisfied the second element, i.e., that there was more than a remote possibility that his conviction would have one of the adverse immigration consequences specified in the statute. (Zamudio, supra, 23 Cal.4th at p. 200.)
There is no question that the rebuttable presumption of section 1016.5, subdivision (b) applied here. It is undeniable that there was no court record confirming that the judge (as required under § 1016.5, subd. (b)) advised defendant that as a consequence of his plea, he could be subjected to deportation, denial of naturalization, or exclusion from admission to this country. The Attorney General concedes that the presumption applied.
But the Attorney General asserts that the People rebutted the presumption by the evidence it submitted, namely, the declarations of Mattison and Judge Lisk. Although Judge Lisk did not recall defendant’s case specifically, he declared that it was his habit and custom in all cases as of 1991 in which he accepted guilty or no contest pleas to first advise defendants, “in the language of Penal Code section 1016.5” that if they were noncitizens, a conviction of the admitted offense “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization . . . .” This habit and custom evidence was bolstered by Judge Lisk’s statement that he used a checklist containing section 1016.5 immigration consequences advisements in proceedings in which he received guilty and no contest pleas. And the court could have concluded that Mattison’s declaration—in which she stated that it was her habit and custom to advise her clients of immigration consequences and that she would have discussed with defendant the probation report, including the reference to notification of immigration authorities—served to impeach defendant’s declaration and testimony denying that anyone went over the report with him or that anyone informed him at or about the time of his plea that there were potential adverse immigration consequences associated with it.
Defendant, however, asserts that the People’s evidence was insufficient as a matter of law to rebut the presumption under section 1016.5, subdivision (b) that he was not given the requisite advisements. His primary contention attacks the quality of the responsive evidence; he argues that Judge Lisk’s sworn statement that his habit and custom was to give section 1016.5, subdivision (a) advisements was insufficient rebuttal evidence. We reject defendant’s assertion.
“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” (Evid. Code, § 1105.) “ ‘ “Habit” means a person’s regular or consistent response to a repeated situation. “Custom” means the routine practice or behavior on the part of a group or organization that is equivalent to the habit of an individual.’ ” (People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22.)
Thus, for example, a robbery-murder victim’s habit of stashing money in food jars or envelopes is admissible to prove the victim’s conduct on the occasion of the crime. (People v. Webb (1993) 6 Cal.4th 494, 529; see also People v. McPeters (1992) 2 Cal.4th 1148, 1178 [same]; In re Charles G. (1979) 95 Cal.App.3d 62, 66 [owner’s habit of locking truck admissible to show he locked vehicle immediately prior to juvenile’s presumably illegal entry].) In Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 793, the court held admissible under Evidence Code section 1105 custom and habit evidence of a physician and his staff in responding to telephone calls concerning minors’ medical conditions to prove their conduct on the particular occasion involving their response to the medical condition of the plaintiffs’ infant child. The court concluded further that it was for the trier of fact to determine whether the physician in that instance acted in accordance with his habit. (Dincau, supra, at p. 795.) In Lucas v. Hesperia Golf & Country Club (1967) 255 Cal.App.2d 241, 247, the court held that evidence that the country club’s bookkeeper routinely mailed bills to members was admissible to prove that bills were sent to the plaintiffs. Their “denial [that they received bills for dues] raised an inference that notices were never mailed to [them] and, thus, presented a conflict in the evidence to be resolved by the jury. [Citations.]” (Ibid.) And, on point here, proof that a defendant was fully advised may be based upon evidence of the trial judge’s custom or habit. (People v. Pride (1992) 3 Cal.4th 195, 255-256; Curl v. Superior Court (1990) 51 Cal.3d 1292, 1303, 1304-1305.)
Here, the rebuttable presumption that the immigration consequences advisements were not given and defendant’s declaration and testimony to the same effect were pitted against the People’s evidence, namely Judge Lisk’s declaration that he, in fact, gave the advisements. Under Evidence Code section 1105, the court was entitled to find that Judge Lisk acted in the particular instance of the taking of defendant’s 1991 plea in a manner that was consistent with his habit of giving section 1016.5 advisements to all criminal defendants pleading guilty or no contest. We are aware of no authority (and defendant has cited none) that holds that evidence of specific conduct established by custom or habit under Evidence Code section 1105 must, as a matter of law, be given limited weight under the circumstances presented here. Yet it is precisely this proposition urged by defendant when he contends that the rebuttable presumption of section 1016.5, subdivision (b) must necessarily trump the People’s evidence to the contrary established through Judge Lisk’s habit or custom of giving immigration consequences advisements.
Moreover, we reject defendant’s claim that the court abused its discretion by denying his motion because “[t]he quantum of evidence to rebut the presumption [here] is nowhere near that presented in” Dubon, supra, 90 Cal.App.4th 944. In Dubon, as was the case here, there was no reporter’s transcript memorializing the entry of the defendant’s plea because the court reporter’s notes were destroyed as a matter of course after 10 years. (Id. at p. 949.) There was a minute order that reflected the defendant’s plea, which noted that he had been advised of the possible effects of his plea on his “ ‘alien/citizenship/probation/parole status.’ ” (Id. at p. 954.) The appellate court held that the minute order, coupled with the plea judge’s testimony that it was his practice to give the section 1016.5 advisements, was sufficient to rebut the statutory presumption of nonadvisement. (Dubon, supra, at pp. 955-956.)
We do not read Dubon as establishing a minimum threshold of evidence that the prosecution must present to rebut the statutory presumption. The absence here of a minute order reflecting the court having given some form of immigration consequences advisements does not mean that the court abused its discretion by finding the evidence before it sufficient to conclude that defendant was advised that his plea might result in adverse immigration consequences.
We therefore conclude that the court did not abuse its discretion in finding that defendant failed to establish the first element of his motion to withdraw the plea, namely, that he was not given the advisements required under section 1016.5, subdivision (a). The denial of defendant’s motion was not error.
DISPOSITION
The order denying defendant’s motion to withdraw the plea pursuant to section 1016.5 is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.