Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. NA038617, Arthur H. Jean, Jr., Judge.
Law Offices of Michael Cabrera, Michael S. Cabrera and Paliath Kutty for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Doi Todd, Acting P. J.
Juan Manuel Esquivias (appellant) appeals from the denial of his motion to vacate the judgment entered in his 1999 conviction for arson of property in violation of Penal Code section 451, subdivision (d). Appellant appeals on the grounds that: (1) the trial court should have granted his motion, since he faced imminent immigration consequences at the time of his plea, he was not adequately advised of these consequences as required by section 1016.5, and he was prejudiced by the nonadvisement; and (2) the trial court should have allowed appellant to withdraw his plea because he had been deprived of effective counsel in entering the plea.
All further references to statutes are to the Penal Code unless stated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
On January 5, 1999, an information charged appellant with arson of property (§ 451, subd. (d)), use of a destructive device and explosive to destroy property (§ 12303.3), possession of flammable material (§ 453, subd. (a)), and terrorist threats (§ 422). On March 15, 1999, pursuant to a plea negotiation, appellant pleaded nolo contendere to arson in exchange for the low term of 16 months in state prison and dismissal of the remaining charges.
According to appellant’s opening brief, he was ordered removed from the United States on December 13, 1999, based on his status as an aggravated felon convicted of a crime of violence with a sentence of more than one year. (8 U.S.C.S. § 1101(a)(43).) On June 13, 2008, appellant filed a motion to vacate judgment under section 1016.5 on the grounds that he was not advised or admonished adequately of the immigration consequences of his conviction. Appellant also contended that counsel did not advise him of the absolute certainty of deportation and permanent removal due to this conviction, which was in violation of the Fifth, Sixth, and Fourteenth Amendment rights to counsel, due process, and a fair trial.
After having read the moving papers, the court that had taken appellant’s plea denied the motion to vacate on July 14, 2008, without comment. Appellant filed a notice of appeal.
DISCUSSION
I. Denial of Appellant’s Motion to Vacate
A. Appellant’s Argument
Appellant contends that the trial court failed to advise him that his conviction would have the consequences of exclusion of admission to the United States. According to appellant, this was the most serious of the immigration consequences that resulted from his conviction, since it prevents him from seeing his family in the United States. Therefore, the court below was required to vacate appellant’s conviction under section 1016.5. Appellant argues that he has met the elements set out in People v. Totari (2002) 28 Cal.4th 876, 884 (Totari) for prevailing on a motion to vacate under section 1016.5.
B. Relevant Authority
“A motion to vacate the judgment is the equivalent of a petition for a writ of error coram nobis. [Citation.] As such, it is an appealable order. [Citation.] We review a motion to vacate under section 1016.5 for abuse of discretion. [Citation.]” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 172 (Gutierrez).)
Section 1016.5, subdivision (a) states: “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] 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.” (Italics added.) Subdivision (b) requires the court, on defendant’s motion, to vacate the judgment and permit the defendant to withdraw the guilty or nolo contendere plea and enter a plea of not guilty if the court fails to advise the defendant as required by subdivision (a), and if the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may result in the defendant’s deportation, exclusion from admission to the United States, or denial of naturalization.
“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.” (Totari, supra, 28 Cal.4th at p. 884.)
C. Proceedings Below
At the hearing on the motion, the court stated it had read the moving papers and asked if counsel had anything to add. Counsel replied that, as the moving papers showed, “We are seeking a motion to vacate because he wasn’t granted a 1016.5 on the transcript.” The court replied, “Your motion to set aside the conviction is denied.”
Exhibit A to appellant’s motion contained the minute order of the taking of the plea in appellant’s case. The minute order reflects that appellant’s advisement contained the following: “If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
Exhibit B to appellant’s motion contains the reporter’s transcript of the taking of the plea. This transcript reveals that the court stated, “In prison, you will earn the right to be paroled at some point. Your period of parole will be for three years. While on parole if you follow the rules, no problems. If you don’t, they could take you back and make you serve another year as a parole violator. But if by some chance you are not a citizen, this conviction could result in deportation or denial of naturalization.” (Italics added.) The court then went on to impose fines.
D. No Abuse of Discretion
Although the minute order states that appellant was given the standard, three-pronged advisement, the reporter’s transcript shows otherwise. When the reporter’s transcript and clerk’s transcript conflict, we rely on the one that circumstances suggest is more reliable. (People v. Smith (1983) 33 Cal.3d 596, 599; but see Estate of Caldwell (1932) 216 Cal. 694, 696 [reporter’s transcript always controls].) We see no reason to doubt that the reporter’s transcript accurately reflects the trial court’s actual words.
The above-quoted portion of the reporter’s transcript of appellant’s plea shows that appellant was not given a proper admonition pursuant to section 1016.5. Section 1016.5 requires the court to expressly warn defendants of the “‘three distinct possible immigration consequences’” of their convictions before taking their pleas. (Gutierrez, supra, 106 Cal.App.4th at p. 173, italics added.) As explained in People v. Superior Court (Zamudio)(2000) 23 Cal.4th 183 (Zamudio), “‘Deportation is the removal or sending back of an alien to the country from which he or she has come....’ [Citation.] ‘Exclusion’ is ‘being barred from entry to the United States.’ [Citation.] ‘Naturalization’ is a process by which an eligible alien, through petition to appropriate authorities, can become a citizen of the United States. [Citation.]” Here, appellant was not advised that his conviction may have the consequence of excluding him from admission to the United States, a consequence that he has since suffered. A warning about the possibility of deportation does not equate to a warning that the defendant’s reentry into the United States would result in removal. (See id. at pp. 207–208.) Therefore, appellant’s advisement did not rise to the level of substantial compliance with the requirements of section 1016.5. (Zamudio, supra, at pp. 207–208.)
We conclude, however, that appellant was not entitled to relief because the record supports the trial court’s implied finding that appellant was not prejudiced by the improper advisement, the third prong of the Totari test. (Totari, supra, 28 Cal.4th at p. 884.) In order to show prejudice, appellant must show it is reasonably probable he would not have pleaded guilty if properly advised. (People v. Akhile (2008) 167 Cal.App.4th 558, 565, citing Zamudio, supra, 23 Cal.4th at pp. 209–210.)
In his motion, appellant states he was offered his plea bargain of a 16-month sentence at half-time (eight months) and was “spared the possible upper term of three years.” Appellant claims he “had other options to accepting this plea.” He asserts he could have negotiated an agreement in which he would have pleaded guilty to a different charge and avoided the immigration consequences, or he could have gone to trial. Had he known the severe consequences, he would have rejected the plea and obtained expert immigration advice in order to arrive at an outcome that would have allowed him to continue living in the United States.
The record contains no information as to the factual background of the four offenses with which appellant was charged. Even in his new declaration, which appellant attaches to his reply brief with the claim that he inadvertently omitted it from his motion to vacate, appellant provides no information regarding the offenses. He states only that he was shocked to be arrested and at the reason for his arrest. It is reasonable to assume, however, that appellant was not factually innocent, since he did not claim to be so in his motion, and he stated only that he was determined that he “would never break the law again.”
Although some of the offenses would have fallen under the multiple-punishment bar of section 654, it is not clear whether the crime of making terrorist threats was subject to section 654. Had he gone to trial and been found guilty, appellant may have been sentenced on that offense as well. In any event, appellant was offered a sentence that was less than half the three-year sentence to which he claims he was susceptible. Moreover, he was aware he would probably serve only half of the plea-bargained sentence, or a total of eight months. Appellant presents no explanation of the combination of charges to which he could have pleaded that did not involve a conviction for a deportable offense. He offers no substantial evidence showing that the prosecutor might have agreed to a plea that would have enabled appellant to avoid adverse immigration consequences. It is reasonable to believe appellant would have accepted the bargain even if he had received the complete advisement. (See In re Resendiz (2001) 25 Cal.4th 230, 253–254 (Resendiz).)
In the absence of a more detailed and objective scenario, the trial court was not required to accept as true appellant’s self-serving statements. In the related context of claims of ineffective assistance of counsel in immigration advisements, a defendant’s “assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’” (Resendiz, supra, 25 Cal.4th at p. 253; see also In re Alvernaz (1992) 2 Cal.4th 924, 938.) We believe this requirement should also apply to a trial court’s evaluation of the prejudice suffered by a defendant who was improperly advised by the trial court. (But see People v. Zaidi (2007) 147 Cal.App.4th 1470, 1490 [Resendiz and Alvernaz “concern claims of ineffective assistance of defense counsel based on incompetent advice from counsel prior to entering a plea, not a claim of insufficient advisement by the court”].) On this record, we believe the trial court—the same court that took appellant’s plea and was familiar with the facts of the case—was entitled to conclude that the objective evidence did not corroborate appellant’s declaration claiming he would not have accepted the plea bargain had he been properly advised. There was no abuse of discretion.
We decline to reach the People’s argument that the trial court could have properly found that the motion was untimely filed and denied it on that ground, since it did not. In Zamudio, the defendant argued he had not been properly advised of the immigration consequences of a plea that had been made over five years earlier. (Zamudio, supra, 23 Cal.4th at p. 190.) The record did not disclose when the defendant first knew he risked actual exclusion from admission to the United States. (Id. at p. 203.) Zamudio stated, “[a]bsent evidence that defendant long ago had cause to question the accuracy of the trial court’s 1992 immigration advisements, to hold he should have objected to them earlier would be unfair. This conclusion accords with the plain language of section 1016.5, which contains no time bar.” (Id. at p. 204.)
II. Ineffective Assistance of Counsel
A. Appellant’s Argument
Appellant asserts that his defense counsel did not adequately advise him of the immigration consequences of his plea and failed to research whether the plea made appellant deportable. At the time of appellant’s conviction, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which reclassified deportable offenses, had been in effect for some time. Because he was deprived of effective assistance of counsel in entering his plea, appellant must be allowed to withdraw it.
B. Ineffective Assistance of Counsel Improperly Raised in Section 1016.5 Motion
A claim of ineffective assistance of counsel must be raised by a petition for writ of habeas corpus. (Resendiz, supra, 25 Cal.4th at p. 237, fn. 2; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477; People v. Ibanez (1999) 76 Cal.App.4th 537, 546, fn. 13 [ineffective assistance of counsel may not be raised in petition for writ of error coram nobis].) The court in People v. Chien (2008) 159 Cal.App.4th 1283, 1290 (Chien) expressly held that courts “lacked jurisdiction to address a claim of ineffective assistance of counsel in the context of a section 1016.5 motion.” Although “affirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel,” (Resendiz, supra, at p. 240), a motion under section 1016.5 is not the proper vehicle to address such a claim. (See Chien, supra, at p. 1290, fn. 4 [“issues relating to a defendant’s ability to bring a postjudgment ineffective assistance of counsel claim based on immigration consequences are pending before the California Supreme Court in People v. Kim, review granted July 25, 2007, S153183”].) We decline to address appellant’s ineffective assistance of counsel claim by treating the motion to vacate the judgment as a petition for writ of habeas corpus.
C. Ineffective Assistance of Counsel as a Nonstatutory Claim
In his reply brief, appellant contends that he did not make his claim of ineffective assistance through his section 1016.5 motion. Rather, he argues, the claim was brought pursuant to People v. Fosselman (1983) 33 Cal.3d 572 (Fosselman).
At the outset, it is clear that appellant brought the ineffective assistance claim within his “motion to vacate judgment under Penal Code section 1016.5,” even though he cited Fosselman in the motion. Secondly, Fosselman “held that ineffectiveness of counsel may be argued in a new trial motion. ‘[I]n appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.’” (People v. Smith (1993) 6 Cal.4th 684, 693, italics added.) “Fosselman... stands broadly for the proposition that a defendant may bring a motion for a new trial based on constitutional grounds not specified in the new trial statute. More specifically, it holds that a trial court, prior to judgment, may grant a motion for a new trial if effectiveness of counsel can be determined based on counsel’s trial performance observed by the court.” (Chien, supra, 159 Cal.App.4th at p. 1289.)
The principles set out in Fosselman do not apply to appellant’s case. Appellant is not seeking a new trial, and his claims are not related to a trial court’s duty to ensure that a defendant receives a fair trial. (Chien, supra, 159 Cal.App.4th at p. 1289.) A large part of the rationale in Fosselman was based on the trial court’s opportunity to observe the conduct of the trial, including counsel’s performance. (Fosselman, supra, 33 Cal.3d at p. 582.) “Section 1016.5 motions may be made years after judgment, as in this case, and proof of ineffective assistance in this context almost certainly would rely upon extrinsic evidence. Extension of the section 1016.5 motion to encompass ineffective assistance claims would not ‘expedite’ justice in these circumstances. It would instead undermine the finality of the judgment.” (Chien, supra, at p. 1289.) Appellant’s attempt to distance his ineffective assistance claim from his section 1016.5 motion while asserting that it should be considered based on Fosselman must fail.
D. Ineffective Assistance Not Shown
In any event, appellant’s claim of ineffective assistance of counsel would fail for the same reason as his statutory motion. “[A] defendant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.) As we have stated, we conclude that the record supports the trial court’s implied finding that appellant failed to show he suffered prejudice from entering into his plea bargain. Therefore, even assuming his ineffective assistance claim was properly before the trial court, we may reject his claim based on the same implied finding by the trial court.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.