Opinion
B297937
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. PAUL ROBERT SCHAMANSKI, Defendant and Appellant.
Law Offices of Brian D. Lerner and Brian D. Lerner, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA032108) APPEAL from an order of the Superior Court of Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed. Law Offices of Brian D. Lerner and Brian D. Lerner, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.
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Paul Robert Schamanski, aka Paulo Roberto Viera Shamanski, appeals from the trial court's March 7, 2019 order denying without prejudice his motion to vacate his 1997 conviction by no contest plea to possession for sale of a controlled substance (Health & Saf. Code, § 11378), pursuant to Penal Code sections 1016.5 and 1473.7.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, Schamanski contends that the trial court erred in denying his motion to vacate under section 1016.5 because the record demonstrated that he was not advised of the immigration consequences of his plea, and suffered deportation as a result. He argues that it was reasonably probable he would not have pleaded no contest had he been properly advised. Schamanski further contends that the trial court erred in denying his motion to vacate without ruling on the motion under section 1473.7.
We affirm the trial court's order.
PROCEDURAL HISTORY
Schamanski entered the United Stated on October 13, 1970, as a lawful permanent resident. He was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378) on April 8, 1997. Schamanski pleaded no contest to the charge on July 28, 1997. He was not advised of the immigration consequences of his no contest plea. Schamanski was sentenced to three years formal probation with imposition of sentence suspended, and 180 days in county jail, on August 11, 1997. Schamanski was ordered removed from the United States on December 17, 1998, as a consequence of his conviction.
The parties are in agreement that there is no evidence in the record indicating that Schamanski was advised of the immigration consequences of his plea by either the court or counsel.
In a declaration attached to the motion to vacate, Schamanski stated that he was "detained by Immigration, subsequently released on bond and then ordered removed from the United States to Brazil on December 17, 1998." In 2010, he was detained for a few hours, then released and told to return in 30 days. Instead, he returned to Brazil voluntarily, and was still living there on February 13, 2019, when he filed the motion to vacate his no contest plea pursuant to sections 1016.5 and 1473.7.
Hearing on Motion to Vacate the Conviction
On March 7, 2019, a hearing was held on the motion to vacate the conviction. Schamanski failed to appear. The trial court noted that an undated progress report from the probation department indicated Schamanski had failed to follow instructions, had not made contact with the probation department since April 1, 1998, and was not available for supervision. The report recommended that Schamanski "serve suitable time in custody." On December 29, 1998, Schamanski failed to appear in court, his probation was revoked, and a bench warrant issued with no bail.
The documents the trial court reviewed from the probation department at the hearing are not included in the appellate record. --------
The trial court asked defense counsel to address the question of whether the court should hear the motion in light of Schamanski's decision to voluntarily absent himself from the proceedings. The court stated that "the only reasonable, common sense conclusion is that the defendant voluntarily absented himself from this court, period, because he was notified by probation. He failed to appear. He is in the country. He is in this area. And then after -- instead of submitting himself to the I.N.S. or to the immigration court, he absences [sic] himself voluntarily so he may have other benefits in the future . . . ."
Defense counsel argued that, although not ideal, the situation did not affect the court's jurisdiction over the motion. Counsel argued that under section 1016.5, the question was not whether Schamanski voluntarily absented himself, but whether he was advised of the immigration consequences of his plea. He was not advised, and was therefore entitled to withdraw the plea under the statute. Counsel stated Schamanski "was in immigration custody. You know, there are circumstances. He was then fighting his immigration case and ordered deported. He did leave voluntarily, but he was deported. He has an order of deportation. He can't come back to the United States." He also argued that there were "some equities," including that Schamanski had United States citizen children, and had not sustained further convictions. Schamanski did not "really receive[] any other benefit from fighting his immigration case and not reporting to probation. He was still ordered deported because of this crime." Counsel did not view "what happened on probation as being a legal justification for denying the fact that he wasn't advised under 1016.5." Counsel concluded, "I think he had maybe in his mind little reason to report to probation."
The court agreed that it had "complete jurisdiction over this case," but reiterated that at this juncture it was solely concerned with the bench warrant.
The prosecutor argued that, according to his own declaration, Schamanski lived in the United States until 2010. The motion should be denied because Schamanski had the opportunity to report to the probation department, but chose not to. "[I]t wasn't like he was deported in 1997 and [has] never been back. [¶] He didn't leave the country until 2010 which gave him plenty of time to address probation and the immigration issues."
The trial court ruled: "The court is going to decline to hear your motions until the defendant appears in court because, as the court has indicated now four or five times, he failed to appear voluntarily. He was in the country and he didn't come back to court, . . ." "At this time, without prejudice, the court is denying your motion because the court, again, is exercising its discretion. [¶] The court takes the position that the court should be able to handle the issues of defendant's failure to appear before the court entertains your motion."
The trial court's minute order, dated March 7, 2019, stated, "The court decline[s] to hear motion without the defendant being present. [¶] Motion is denied without prejudice. [¶] Bench warrant to remain outstanding."
DISCUSSION
Relief under section 1016.5 or petition for writ of habeas corpus is available to persons who are in custody or are restrained and who were not properly advised of the immigration consequences of their plea by the trial court. (People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 220.) Recently amended section 1473.7 permits "[a] person who is no longer in criminal custody," to file a motion to vacate a plea where "[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." (§ 1473.7, subd. (a)(1).)
"Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court." (§ 1018.) Such an exception exists with respect to section 1473.7, which provides that "[u]pon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present." (§ 1473.7, subd. (d).)
Although the parties focus on the timeliness and merits of Schamanski's motion to vacate the conviction, the trial court did not reach either of these issues. The trial court denied the motion because Schamanski had an outstanding bench warrant, which he avoided for over a decade despite being present in the United States. The trial court found that Schamanski's failure to appear at the hearing was voluntary. The trial court recognized that proceeding with a hearing in defendant's absence was a discretionary decision. Consistent with its authority under section 1473.7, subdivision (d), the court exercised its discretion to refuse a hearing and denied the motion without prejudice, making numerous findings well supported in the record that Schamanski had not demonstrated good cause for his absence. We conclude that the trial court acted within its discretion when it declined to hear the motion, and affirm.
DISPOSITION
The trial court's order is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.