Opinion
E071634
09-09-2019
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN OSCAR GARDUNO GONZALEZ, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1201097) OPINION APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Adrian Oscar Garduno Gonzalez appeals from the trial court's order denying his motion to vacate his conviction pursuant to Penal Code sections 1473.7 and 1016.5. Based on our independent review of the record, we find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
Defendant is a citizen of Mexico who had been living in the United States for approximately 20 years. Defendant is married to a lawful permanent resident, and they have three children who were born in the United States.
During the entire day on May 6, 2012, defendant physically abused his wife by repeatedly hitting and punching her in the face, kneeing her in the stomach, kicking her in the thighs, hitting her with a broom, and choking her. Defendant also threatened to kill his wife while holding a knife and broom. Defendant was enraged because he believed his wife was cheating on him.
On May 9, 2012, a felony complaint was filed charging defendant with one count of making criminal threats (§ 422; count 1); four counts of inflicting corporal injury upon a spouse or cohabitant (§ 273.5, subd. (a); counts 2, 3, 4, & 5); and one count of brandishing a deadly weapon other than a firearm (§ 417, subd. (a)(1); count 6). The complaint also alleged that defendant personally inflicted great bodily injury upon the victim (§§ 12022.7 & 12022.8) in the commission of count 1.
On May 17, 2012, pursuant to a negotiated plea agreement, defendant pleaded guilty to counts 2 and 5. In return, the remaining counts and enhancement allegation were dismissed, and defendant was placed on formal probation for a period of three years on various terms and conditions. Prior to pleading guilty, defendant signed and initialed a felony plea form. In relevant part, defendant initialed that paragraph stating, "If I am not a citizen of the United States, I understand that this conviction 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." He also initialed the statement that he had adequate time to discuss his constitutional rights, the consequences of pleading guilty, and the defenses he may have to the charges against him with his attorney. The plea form was signed by defendant, indicating he had read and understood the plea form and that he waived all of his rights. The plea form was also signed by the prosecutor, defense counsel, and an interpreter.
At some point, defendant was placed into removal proceedings and was unable to qualify for relief in immigration court due to his domestic violence conviction.
After defendant successfully completed his probation, on April 4, 2016, defendant filed a motion to reduce his felony convictions to misdemeanors pursuant to section 17, subdivision (b), and to dismiss the case under section 1203.4.
On May 16, 2016, the trial court granted defendant's motions and reduced defendant's convictions to misdemeanors. The court also set aside the convictions and dismissed the case.
Approximately two years later, on June 6, 2018, defendant filed a motion to withdraw his guilty plea and vacate his conviction pursuant to sections 1473.7 and 1016.5, with supporting documents. Defendant argued that he was neither advised by his counsel nor the court at the time he pleaded guilty that his domestic violence conviction would have adverse immigration consequences. He also claimed that his attorney failed to seek an immigration safe offer during the plea negotiations.
On July 9, 2018, the People filed an opposition to defendant's motion, arguing defendant failed to show he suffered prejudice or that he did not understand the consequences of his guilty plea.
The trial court held an evidentiary hearing on defendant's motion on September 14, 2018. At that time, the trial court heard testimony from defendant's prior attorney, Ben Schiff, and defendant. Attorney Schiff testified that he reviewed the plea form with defendant and believed he advised defendant of the immigration consequences. Specifically, Attorney Schiff stated that in reviewing his notes from the case, he informed defendant that if he pleaded guilty to the two charges "he would not be admissible in this country" and that "he would be deported" and "not be able to gain legal status as a result of those pleas." He did not tell defendant that he would be "turned over to the immigration department" but did specifically inform him that "he would be deported." He also "thoroughly" advised defendant on the immigration consequences if he pleaded guilty to violating section 273.5 and that "he would be deported." Attorney Schiff did not specifically recall his conversations with the prosecutor when negotiating the case but did recall that defendant's main goal was to plead guilty and be released as soon as possible. Therefore, Attorney Schiff secured an offer for defendant to plead guilty and be released that day. Attorney Schiff also stated that he discussed continuing the case for defendant so they could work out the immigration issue, but defendant did not want a continuance because he wanted to be released that day.
Defendant testified that Attorney Schiff never told him he would be deported but that he would be "turned into immigration." He also stated that Attorney Schiff informed him that he would not be able to stay in the country. However, he noted that, at the time of the plea, he had two American born children, so it was important for him to stay in the country. Defendant also asserted that Attorney Schiff never offered to continue the matter to work on the immigration issue.
On cross-examination, defendant denied that Attorney Schiff explained to him his constitutional rights and the consequences of pleading guilty. He also stated that he did not remember signing a plea form. However, after the prosecutor showed defendant the plea form with his initials and signature, he acknowledged signing the plea form but claimed that he could not read English and only initialed and signed the plea form because Attorney Schiff told him to do so. He also stated that the interpreter was not present when he signed and initialed the plea form and that no one interpreted the plea form from English to Spanish to him before he signed it. He denied that he said he was guilty in court during the plea hearing but claimed that Attorney Schiff spoke for him. Defendant also asserted that an interpreter was not present with him in court when he entered his guilty plea and that everything occurred in English and he could not understand.
The reporter's transcript of the plea hearing shows that an interpreter was present at the hearing and that defendant personally pleaded guilty. The transcript of the plea hearing also shows that defendant personally acknowledged to the court of having reviewed the plea form with his attorney and initialing and signing the plea form. --------
Following argument, the trial court denied defendant's motion to withdraw his guilty plea and vacate his conviction. The court found that defendant suffered no prejudice because he was advised of his consequences more than once but chose a favorable plea deal. The court also found that defendant lacked credibility when he denied having an interpreter to go over the plea form since the interpreter signed the form.
On November 13, 2018, defendant filed a timely notice of appeal and a request for certificate of probable cause. The request for certificate of probable cause was granted on November 14, 2018.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The trial court's order denying defendant's motion to vacate his conviction pursuant to sections 1473.7 and 1016.5 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.