Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. KA035758, George Genesta, Judge.
Law Offices of Alejo Lugo & Associates and Alejo Lugo for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Macario Perez appeals the superior court’s denial of his Penal Code section 1016.5 motion, by which he sought to vacate and set aside his convictions for violating Health and Safety Code sections 11350 and 11370.9, on the ground the trial court failed to adequately advise him of the immigration consequences of his plea. We affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1997, Perez, a Mexican citizen, was charged with violating Health and Safety Code section 11370.9, subdivision (a) (possession of, and attempt to conceal, proceeds exceeding $25,000 derived from controlled substance offenses) and possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)). In May 1997, Perez pleaded no contest to both charges. He was placed on probation for three years, on the condition he serve one year in county jail.
The plea form signed by Perez in 1997 contained the following admonition regarding immigration consequences: “I understand that if I am not a citizen of the United States, the conviction for the offense 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.” The form also contained the statement: “I have personally initialed each of the above boxes and discussed them with my attorney. I understand each and every one of the rights outlined above and I hereby waive and give up each of them in order to enter my plea to the above charges.” Both statements were initialed by Perez; he also signed the plea form. The form also contained an averment, signed by defense counsel, that he had explained each of the defendant’s rights to him and concurred in his decision to plead guilty.
At the 1997 plea proceeding, a certified court interpreter translated for Perez. Perez affirmed that he was entering the plea freely and voluntarily; that he had gone over the plea document “with the assistance of the interpreter and [his] attorney”; that he had signed and initialed the document; and that by doing so, he had indicated he “understood the contents of [the plea form] and gave up the rights mentioned.” Prior to taking the plea, the prosecutor orally reiterated Perez’s rights to a jury trial, to confront witnesses, and against self-incrimination. Perez affirmed that he had discussed with his lawyer, with the interpreter’s assistance, the facts of the case, the elements of the crimes, potential defenses, his “legal and constitutional rights, the consequence of this plea, ” and any other matters he felt were important. The prosecutor invited Perez to ask questions “about any of the documents that have been interpreted for you or anything that’s been said today in court[.]” Perez indicated he had no questions. Defense counsel affirmed that he had discussed with Perez “all those things he’s indicated.” The trial court did not orally advise Perez of the immigration consequences of the plea.
In October 2009, Perez moved pursuant to section 1016.5 to set aside and vacate the 1997 judgment on the ground the trial court had not properly advised him of the immigration consequences of his plea. His supporting declaration explained that he is currently facing deportation proceedings as a result of the 1997 convictions. His wife, children, and grandchildren reside in the United States, and deportation would result in extreme hardship for him and his family. When he entered his plea in 1997, he did not know the plea would “result in [his] current situation.” He averred he had been “under the impression that if I pled guilty, paid my fines, and served my allotted time, that I would have paid my debt to society and I could put this unfortunate incident behind me.” His adult son, Hector Perez, translated the plea form for him because the court interpreter was busy translating for other defendants. Rather than wait, defense counsel asked Hector, who was not a certified interpreter, to translate the plea form. Perez believed that his son “struggled somewhat with the terms of the forms.” After Hector translated, defense counsel told Perez to sign and initial the forms. He did so without being aware of the immigration consequences of his plea, which neither his attorney nor his son had mentioned. Perez averred that he had “diligently and blindly initialed” each box on the form, including paragraphs inapplicable to his circumstances and plea, “without knowing the contents thereof.” His attorney then went through the form and scratched out Perez’s initials where they appeared next to inapplicable paragraphs. Defense counsel told Perez to tell the judge that the forms had been explained to him.
Perez initially filed a declaration in support of a motion to vacate on May 19, 2009. That motion was taken off calendar and the instant motion, dated October 22, 2009, superseded it.
For ease of reference, we sometimes hereinafter refer to Hector Perez by his first name.
Also appended to the motion were declarations executed by Perez’s trial counsel, his son Hector, and his current appellate counsel. Trial counsel, Harvey E. Byron, averred that in 1997 he had not been fluent in Spanish and Perez had not been fluent in English. On the date of the plea, the court interpreter was busy translating in other cases. Hector, who was “fluent in both English and Spanish, ” translated the plea form for Perez. Byron “assumed this was done competently” and had no independent recollection of whether Perez asked questions about the form. He instructed Perez to initial “each point found within the plea form.” The court interpreter translated at the plea proceeding, but to the best of Byron’s recollection, she did not translate the form itself. Counsel averred: “Because I am not fluent in Spanish, there is a distinct possibility that the [d]efendant did not understand fully, or comprehend all of his constitutional rights as interpreted by his adult child and, more specifically, the immigration consequences of pleading guilty.”
Hector likewise declared that, because the court interpreter had been busy, he had translated the plea form for his father. Hector was not a certified interpreter, had no legal training, and “did the best [he] could to translate the form.”
Appellate counsel’s declaration reiterated that Perez is currently facing deportation proceedings as a result of the 1997 convictions. A 2009 “Notice to Appear” for removal proceedings, issued by the U.S. Department of Homeland Security, was also appended to the motion.
After hearing the parties’ arguments, but without conducting an evidentiary hearing, the trial court denied the motion. During the hearing, the trial court ascertained that the court interpreter who had translated during the plea proceeding was deceased. The parties also located records related to an earlier, 1994 plea proceeding in which Perez pleaded to an unrelated drug offense. The reporter’s transcript of the 1994 plea proceeding showed that Perez had been orally advised of the immigration consequences of his 1994 plea. Perez’s counsel averred that he had not suffered further convictions since his 1997 plea, and had become a restaurateur. The trial court found Perez had been given the section 1016.5 advisements via the plea form, and a further advisement was not required. It reasoned that a defendant’s purported failure to understand the admonition, under the circumstances presented here, was not a basis for granting a section 1016.5 motion.
Perez was advised in 1994: “ ‘If you are not a citizen of the United States, your conviction may result in your being deported from the United States, excluded from admission to the United States, or denied naturalization.’ ”
Given its conclusion that Perez had been properly advised, the trial court did not reach the issue of prejudice. However, the court nonetheless found it “questionable” that Perez could establish he would not have pleaded had he been properly advised. The court opined that “the likelihood he would have opted for a trial because of immigration consequences seems to me remote and far-fetched.” He had faced considerable prison time, but was placed on probation as a result of entering the plea. The People’s case appeared strong, and the motion to vacate did not indicate any valid defense to the charges.
Perez appeals.
DISCUSSION
1. The order denying the motion to vacate is appealable without a certificate of probable cause.
Initially, we reject the People’s contention that the appeal must be dismissed because Perez failed to obtain a certificate of probable cause as required by section 1237.5. People v. Totari (2002) 28 Cal.4th 876, held that the denial of a section 1016.5 motion “is an appealable order under section 1237, subdivision (b).” (Totari, at p. 887.) Section 1237, subdivision (b) is not subject to section 1237.5, and therefore no certificate of probable cause was required.
Section 1237.5 provides in pertinent part: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
Section 1237 provides in pertinent part: “An appeal may be taken by the defendant: [¶] (a) From a final judgment of conviction except as provided in... Section 1237.5.... [¶] (b) From any order made after judgment, affecting the substantial rights of the party.”
We note that the defendant in Totari had obtained a certificate of probable cause before appealing the denial of the motion to vacate. (People v. Totari, supra, 28 Cal.4th at p. 880.) However, nothing in Totari suggests compliance with section 1237.5 was a prerequisite to the appeal. Rather, Totari unambiguously states that an order denying a section 1016.5 motion to vacate “is an appealable order under section 1237, subdivision (b).” (Totari, at p. 887.)
2. The trial court did not err by denying the motion.
Though not procedurally barred, Perez’s appeal fails on the merits. Section 1016.5, subdivision (a), requires that a trial court, prior to accepting a defendant’s plea of guilty or nolo contendere to an offense punishable as a crime under California law, advise the defendant that: “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.” Subdivision (b) of section 1016.5 provides in pertinent part: “If, after January 1, 1978, the court fails to advise the defendant as required by this section 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 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. 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.” In enacting section 1016.5, the Legislature demonstrated concern that “those who plead guilty or no contest to criminal charges are aware of the immigration consequences of their pleas.” (People v. Kim (2009) 45 Cal.4th 1078, 1107; People v. Dubon (2001) 90 Cal.App.4th 944, 951.)
To prevail on a motion brought pursuant to section 1016.5, a defendant must establish: (1) at the time of the plea, the trial court failed to advise the defendant of the immigration consequences of the plea as provided in 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) properly advised, the defendant would not have entered the plea. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (hereafter Zamudio); People v. Chien (2008) 159 Cal.App.4th 1283, 1287; People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Dubon, supra, 90 Cal.App.4th at pp. 951-952.) We review a trial court’s ruling denying a motion to vacate the judgment for abuse of discretion. (People v. Chien, supra, at p. 1287; People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.)
Here, the trial court properly denied Perez’s motion because the record unequivocally demonstrates he was advised of the immigration consequences of his plea as required by section 1016.5. Perez signed a plea form containing a section 1016.5 advisement that precisely mirrored the statutory language and warned him of all three possible immigration consequences listed in section 1016.5. Perez placed his initials next to the relevant paragraph. The trial court was not required to provide a further oral advisement; “a validly executed waiver form is a proper substitute for verbal admonishment by the trial court.” (People v. Ramirez (1999) 71 Cal.App.4th 519, 521; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.)
Moreover, before the prosecutor took Perez’s plea in 1997, Perez affirmed that he had gone over the plea form “with the assistance of the interpreter and [his] attorney”; he understood the contents of the document and gave up the rights mentioned therein; he had discussed his legal and constitutional rights, and the consequences of his plea, with his attorney; and he had no questions. Defense counsel also confirmed he had spoken with Perez regarding the matters referenced at the hearing. This was sufficient to satisfy the dictates of section 1016.5. As Ramirez explained: “Here the record contains a copy of the change of plea form which appellant signed. Thus we are able to review the adequacy of the language used. Appellant was warned of all three possible [immigration] consequences in precise statutory language. In addition, the record establishes the trial court inquired into whether appellant had reviewed the form with his attorney, whether it had been translated into Spanish and whether appellant understood the advisements discussed and the rights ultimately waived. The statute requires no more.” (People v. Ramirez, supra, 71 Cal.App.4th at p. 523; see also People v. Gutierrez, supra, 106 Cal.App.4th at p. 175.)
Perez advances a variety of arguments aimed at avoiding this conclusion; none have merit. First, in conclusory fashion, Perez characterizes the plea form as “defective, ” “grossly deficient, ” and filled with what he denominates “plain view egregious errors.” Perez neglects to identify any of the purported defects, except to point out that he initialed all paragraphs in the plea agreement, including those that clearly had no relevance to his plea, such as provisions relating to convictions for murder, sex offender registration, and commitment to the California Youth Authority. He also notes that his son, rather than a certified court interpreter, translated the plea agreement for him. It is axiomatic that neither of these circumstances were flaws in the plea form.
Contrary to Perez’s contention, the fact he initialed paragraphs inapplicable to his circumstances does not require a conclusion he misunderstood the immigration advisements. (See People v. Gutierrez, supra, 106 Cal.4th at p. 176 [rejecting argument that, because defendant checked off irrelevant boxes on plea form, he must have misunderstood the immigration consequences of his plea].) The trial court explained that in its experience, the fact a defendant checks extra boxes on a plea form does not indicate a lack of understanding, but instead is likely due to practical considerations. This was a question of fact for the trial court, and the inferences supporting its finding are reasonable. “[T]o the extent appellant states in his written declaration that his understanding was different than what he said in court, the trial court impliedly disbelieved him when it denied the motion to set aside the plea. We are not free to disregard this implied finding that is supported by substantial evidence.” (Ibid.; Zamudio, supra, 23 Cal.4th at p. 210 [factual issues presented on a motion to vacate plea are to be resolved by trial court].) As Perez acknowledged at the hearing below, nothing about the plea proceeding would have placed the court on notice that he purportedly did not understand the immigration advisements.
The trial court explained that, in its experience, “99.9 percent of the time” attorneys read and explain the relevant paragraphs to the defendant, and then give the defendant the form to sign and initial. Often defendants mistakenly initial inapplicable boxes.
Next, Perez contends the trial court abused its discretion by failing to conduct an evidentiary hearing on his motion to vacate. Zamudio, supra, 23 Cal.4th at page 201, expressly held that such an evidentiary hearing is not required. The court explained: “[W]e are not persuaded the trial court abused its discretion in denying a further evidentiary hearing and ruling on the basis of the record before it, which included the parties’ written submissions. ‘There is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony.’ [Citation.] [¶]... California law affords numerous examples of a trial court’s authority, in ruling upon motions, to resolve evidentiary disputes without resorting to live testimony. [Citations.]... [W]e decline to burden trial courts with a requirement that they conduct live evidentiary hearings on all section 1016.5 motions. The trial court did not err in this regard.” (Zamudio, at p. 201.)
Perez attempts to distinguish Zamudio, urging that Zamudio addressed only section 1016.5, whereas his motion also raised the issue of “compliance with the Boykin-Tahl rules governing guilty pleas.” Elsewhere in his briefs, Perez argues that the “main issue” in his appeal is whether his plea was intelligent and voluntary. To the contrary, Perez has not raised a Boykin-Tahl claim, and improperly conflates the principles relevant to Boykin-Tahl error with those applicable to a section 1016.5 motion. Before a defendant pleads guilty, he must be advised of, and waive, his rights to a jury trial, to confront witnesses, and against self-incrimination. (Boykin v. Alabama, supra, 395 U.S. at pp. 243-244; In re Tahl, supra, 1 Cal.3d at p. 132.) The record must show that the defendant understood the nature and consequences of his plea. (Boykin v. Alabama, supra, at pp. 242-244; In re Tahl, supra, at pp. 130-132; People v. Howard (1992) 1 Cal.4th 1132, 1175; cf. People v. Mosby (2004) 33 Cal.4th 353, 356.) In regard to the waiver of these constitutional rights, the trial court is charged with assuring that the record adequately and affirmatively reflects that the plea is voluntary and intelligent under the circumstances. (People v. Howard, supra, at pp. 1178-1179.) At the 1997 plea proceeding, Perez was advised, through a court interpreter, of his rights to jury trial, confrontation, and against self-incrimination. The plea form likewise contained the relevant Boykin-Tahl waivers, which Perez initialed. Perez does not challenge that he was advised of, and waived, these rights. Boykin-Tahl error is therefore not at issue here.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Perez complains that his son, rather than a certified interpreter, translated the plea form for him when he completed it prior to the plea proceeding. For purposes of argument, we assume this fact to be true; however, it does not entitle Perez to relief. Perez cites no authority for the proposition that the immigration advisements are deemed omitted unless delivered by a certified interpreter when the defendant reviews and signs the form prior to a plea hearing. We assume, without deciding, that a defendant could obtain relief pursuant to section 1016.5 if he or she was a non-English speaker, and the statutorily mandated admonishments were delivered only in English without the assistance of any interpreter. Such was not the case here. The record shows that a certified interpreter was present when Perez reviewed the plea form, but was busy assisting others. Perez opted not to wait until the interpreter was available, instead choosing to use his son as interpreter. Perez cannot now be heard to complain about that choice. In any event, nothing in the record compels a conclusion his son’s translation was inadequate. Hector was an adult, and was fluent in both Spanish and English. The relevant portion of the plea form was neither lengthy nor complex. Hector did not aver that he failed to translate the relevant paragraph. Perez was asked at the plea proceeding – through a certified interpreter – whether he had gone over the document with his attorney and the interpreter, and he responded affirmatively. He did not ask questions of the court when invited do so, an odd circumstance had Hector actually struggled with the translation as Perez now avers. Additionally, when Perez pleaded to another drug-related crime in 1994, he was given the immigration advisements in open court. In short, ample evidence supported a finding that Perez was given, and understood, the immigration advisements.
The trial court did not make a finding on this question.
Finally, in a novel argument raised for the first time in his reply brief, Perez asserts that the plea form was a “ ‘repugnant’ contract, ” requiring that the immigration advisement contained therein be disregarded. As best we can understand, Perez’s argument runs as follows. Civil Code section 1651 provides: “Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded.” Perez asserts that Civil Code section 1651 applies because most of the standardized plea form was preprinted, but his initials and signature were handwritten. Because he initialed paragraphs that were not applicable to his plea, the handwritten portions were inconsistent with the preprinted portions, and were repugnant. According to Perez, Civil Code section 1651 therefore requires that the relevant paragraph be disregarded.
A negotiated plea agreement is a form of contract, and is subject to contract interpretation principles. (People v. Vargas (2007) 148 Cal.App.4th 644, 647.) Where the contractual language is clear and explicit, it governs. (Ibid.) Here, the contractual language is clear and unambiguous, and not open to interpretation. The fact Perez initialed inapplicable boxes does not change this conclusion. Moreover, his initials and signature are not terms of the contract, and Civil Code section 1651 therefore does not apply. In any event, none of the handwritten portions of the plea form conflict, nor are they “ ‘absolutely repugnant, ’ defendant’s contrary claim notwithstanding.” (People v. Vargas, supra, at p. 648.)
For the foregoing reasons, we conclude record reveals no abuse of discretion, and the trial court properly denied the motion to set aside and vacate the judgment.
As noted, the trial court expressed skepticism that Perez could meet the third element of his section 1016.5 claim, that is, that if properly advised he would not have entered the plea. (Zamudio, supra, 23 Cal.4th at p. 192; People v. Chien, supra, 159 Cal.App.4th at p. 1287.) The trial court did not formally rule on this question, as it found the fact Perez had been properly advised dispositive. We also doubt whether the third element was met. Like the trial court, we need not reach the issue given our conclusion Perez was properly advised.
DISPOSITION
The order denying the motion to set aside and vacate the judgment is affirmed.
We concur: KLEIN, P. J.KITCHING, J.