Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC065843A
Reardon, Acting P.J.
In February 2009, appellant Aleksey Matveyevich Berdyugin pleaded no contest to inflicting corporal injury on a spouse and child endangerment. (Pen. Code, §§ 273a, subd. (b), 273.5, subd. (a).) Charges of assault by force likely to produce great bodily injury and inflicting corporal injury on a child were dismissed. (§§ 245, subd. (a)(1), 273, subd. (d).) The trial court suspended imposition of sentence and placed Berdyugin on probation for three years. On appeal, Berdyugin contends that the trial court erred by (1) not hearing his Marsden motion; (2) failing to provide an interpreter; and (3) improperly advising him on the immigration consequences of his plea. We affirm.
All statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118.
In addition to this appeal, Berdyugin filed a related petition for writ of habeas corpus, which we determine by separate order. (In re Berdyugin, A130507.)
I. BACKGROUND
Because Berdyugin pleaded no contest, the factual summary is taken from the preliminary hearing transcript.
On February 21, 2008, Berdyugin yelled at his wife while they were preparing dinner. He hit her on the head, pulled her hair, and punched her in the kidneys. He then choked her, punched her in the stomach, and kicked her legs as she was pinned in a corner. That same day, Berdyugin’s seven-year-old daughter accidently dropped an external hard drive. Berdyugin saw her drop it and slapped her across the face, cutting her lip. On February 26, Berdyugin’s wife reported the incidents to the police.
All subsequent dates refer to the 2008 calendar year unless otherwise indicated.
B. Procedural Background
On March 25, an information charged Berdyugin with infliction of corporal injury on a spouse; assault by means of force likely to produce great bodily injury; infliction of corporal injury on a child; and child endangerment. (§§ 245, subd. (a)(1), 273a, subd. (b), 273d, subd. (a), 273.5, subd. (a).) Two days later he pleaded not guilty to all charges. On April 22, Berdyugin’s counsel moved for the appointment of doctors to conduct a competency exam. Criminal proceedings were suspended. On June 5, the trial court found Berdyugin incompetent to stand trial based on the doctors’ evaluations. Then on July 24, the trial court ordered Berdyugin admitted to Napa State Hospital by September 5 for restoration of competency proceedings for a maximum term of three years.
Berdyugin did not speak English, and was aided by a Russian interpreter at all trial court hearings unless otherwise indicated.
Berdyugin moved for substitution of attorney on September 3. On September 18, a different judge than the one who previously handled the case transferred the matter back to the department of Berdyugin’s original judge for an appearance on September 23. Berdyugin was without counsel or an interpreter.
On September 23, Berdyugin appeared for a status check with counsel but without an interpreter. His counsel requested an order to show cause as to why he had not been transferred to the hospital. The trial court continued the hearing until November 5. On November 5, the trial court was informed that Berdyugin had been accepted into the hospital. The matter was dropped from the calendar.
On December 10, the medical director of Metropolitan State Hospital certified that Berdyugin was mentally competent to stand trial. (§ 1372, subd. (a)(1).) No interpreter was present in court on December 26, at which time the trial court reappointed “the private defender” without a designation, continued the matter, and ordered an interpreter for the next hearing. That hearing took place on December 31; the trial court appointed Berdyugin’s previous counsel to represent him. On January 8, 2009, the court noted that there was no Russian interpreter available. Counsel for both parties stipulated to Berdyugin’s competency based on the certificate of competency. The court in turn found him competent based on the stipulation and the report filed along with the certificate, and accordingly reinstated criminal proceedings. This appeal followed Berdyugin’s plea and grant of probation.
II. DISCUSSION
A. Marsden Motion
Berdyugin first argues the trial court violated his Sixth and Fourteenth Amendment rights by failing to conduct a Marsden substitution of attorney hearing. (U.S. Const., 6th & 14th Amends.; Marsden, supra, 2 Cal.3d 118.) He reasons that his attorney’s ineffectiveness and the denial of a Marsden hearing caused him to give an unintelligent no contest plea.
A criminal defendant is entitled to competent representation at all stages of trial. (People v. Smith (1993) 6 Cal.4th 684, 690.) When a defendant seeks substitution of appointed counsel, the trial court must permit the defendant to explain the basis of his or her contention and to relate specific instances of inadequate performance. The defendant has an absolute right to substitute appointed counsel if the record clearly shows that counsel is not providing competent representation or that the defendant and counsel are embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Taylor (2010) 48 Cal.4th 574, 599.)
We review a trial court’s denial of a Marsden motion for abuse of discretion. Denial constitutes an abuse of discretion only if the defendant has shown that a failure to replace counsel would substantially impair his or her right to assistance of counsel. (People v. Taylor, supra, 48 Cal.4th at p. 599; Marsden, supra, 2 Cal.3d at p. 123.) We test the trial court’s erroneous denial for prejudice under the Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); Marsden, supra, 2 Cal.3d at p. 126.)
Berdyugin argues that the incompetence finding did not affect the court’s decision to hear his motion. We disagree. Trial of an incompetent defendant violates due process. (Godinez v. Moran (1993) 509 U.S. 389, 396; People v. Hayes (1999) 21 Cal.4th 1211, 1281.) A defendant is “incompetent” if he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (§ 1367, subd. (a).) If incompetence is established, the trial shall besuspended until the person becomes mentally competent. (§ 1370, subd. (a)(1)(B).) Once competence is established, the criminal process may resume. (§ 1370.1, subd. (a)(1)(A).)
At the time Berdyugin filed his Marsden motion, there was no need for substitution of counsel. The trial court had suspended criminal proceedings on April 22 because Berdyugin’s counsel expressed doubt as to his competency. On June 5, the court found Berdyugin to be incompetent and thereafter ordered him transferred to Napa State Hospital for restoration of competency proceedings. On September 3, Berdyugin filed his Marsden motion. It was not until January 8, 2009, that the trial court declared Berdyugin competent to stand trial and resumed criminal proceedings. Thus, at the operative time nothing was proceeding in the criminal case and a Marsden hearing would have served no purpose.
Even if the trial court improperly failed to conduct a Marsden hearing, any error was harmless. Upon being found competent to stand trial, the trial court appointed the same attorney Berdyugin had had prior to being declared incompetent. Thereafter he failed to reassert dissatisfaction with his appointed attorney and therefore waived any claim of error related to his previous motion. (See People v. Lloyd (1992) 4 Cal.App.4th 724, 732.)
B. Right to an Interpreter
Berdyugin next argues that the absence of an interpreter at several hearings violated his due process rights. He reasons that critical decisions were made at hearings at which an interpreter was not present. He further argues that a lack of continuity of interpreters and the disparity of translations caused him to be prejudiced.
A non-English-speaking criminal defendant has a right to an interpreter throughout the proceedings. (Cal. Const., art. I, § 14.) The right has several aspects: (1) an interpreter assists questioning of a non-English-speaking witness; (2) an interpreter enables the non-English-speaking defendant to comprehend the proceedings; and (3) an interpreter allows the non-English-speaking defendant to communicate with counsel. (People v. Aguilar (1984) 35 Cal.3d 785, 790.) The presence of an interpreter is necessary so the defendant can understand and fully participate in the proceedings. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1010.)
The standard of review that governs violation of the state constitutional right to an interpreter is the Chapman standard. (People v. Rodriguez, supra, 42 Cal.3d at p. 1012.) We examine the entire record to see if the error had any impact on the course of the trial. (Ibid.) The test is whether an actual material interference with the defendant’s rights has been shown. (Id. at p. 1014, fn. 6.) Even where some deprivation is shown, the absence of a personal interpreter may be found harmless because the proceedings which took place while the interpreter was absent may be insubstantial or concern matters which are not possibly prejudicial to the defendant. (Id. at p. 1015.)
We conclude that Berdyugin’s lack of an interpreter at certain trial court proceedings did not amount to prejudicial error. Berdyugin was without an interpreter on four separate occasions: (1) on September 18, the court transferred his Marsden motion to a different department; (2) on September 23, a previously scheduled status check hearing was continued until a later date, at which time an interpreter appeared, but Berdyugin had already been transferred to a state hospital; (3) on December 26, the court reappointed the private defender, without designation, and continued the matter for a week, noting that an interpreter would be ordered; and (4) on January 8, 2009, the trial court found Berdyugin to be competent to stand trial and reinstated criminal proceedings. (See § 1372.)
Nothing of significance occurred during these proceedings that could have materially interfered with Berdyugin’s rights. The first two took place prior to the filing of the certificate of competency, while criminal proceedings were suspended. Two proceedings were continued so he would have an interpreter. And the January 8, 2009 hearing was a pro forma event in which counsel stipulated to Berdyugin’s competency based on the certificate of competency, and the court likewise made a competency finding based on that stipulation and the report accompanying the certificate. Tellingly, he does not challenge the competency finding on appeal. The record is devoid of any evidence of prejudice.
We also reject the argument that a lack of continuity in interpreters and disparity in translations caused Berdyugin to suffer prejudice. No complaints about the quality of interpretations were made to the trial court. Additionally, Berdyugin cites no authority, and we can find none, that shows a duty on the trial court to provide the same interpreter.
C. Advisement on Possibility of Deportation
Finally, Berdyugin argues that his no contest plea should be set aside because the plea form and advisement by the trial court of the immigration consequences of his plea were ambiguous. He states that use of the disjunctive “or” caused him to believe deportation was not necessary or likely to occur, and complains the court further added to the confusion by placing him on probation.
Prior to acceptance of a plea of nolo contendere, a trial court must advise a criminal defendant of the following: “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.” (§ 1016.5, subd. (a), italics added.) If the record does not indicate this advisement was given, it is presumed the defendant did not receive it. (Id., subd. (b).)
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) at the time of the motion, more than a remote possibility existed that the conviction would have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the non advisement or improper advisement. (People v. Totari (2002) 28 Cal.4th 876, 884.) On the question of prejudice, the defendant must show that it is “reasonably probable” he or she would not have pleaded no contest if properly advised. (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210.) A defendant’s knowledge of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice. (People v. Totari, supra, at p. 884.) A trial court’s ruling on a section 1016.5 motion to vacate will not be set aside absent an abuse of discretion. (People v. Superior Court (Zamudio), supra, at p. 192.)
Although Berdyugin correctly asserts that his charged crimes would result in deportation, his claim fails because the trial court gave him the proper advisement. Berdyugin was advised by the trial court that “conviction of these offenses will have consequences of deportation, exclusion from admission to this country, or denial of naturalization or amnesty under the laws of the United States.” (Italics added.) The plea form he signed used almost identical language. Both advisements comply with section 1016.5, and the use of “will” instead of “may” further indicated to Berdyugin that immigration consequences would occur. Additionally, there was nothing ambiguous about the advisement: The only applicable consequence for Berdyugin of the three enumerated events was deportation, of which he was specifically advised. Moreover, Berdyugin received a very favorable disposition: two felony charges were dropped, and he received probation instead of prison. He utterly fails to show prejudice, i.e., that he would have not have agreed to the negotiated disposition if advised differently.
Berdyugin was charged with inflicting corporal injury on a spouse and child endangerment. (§§ 273a, subd. (b), 273.5, subd. (a).) A plea of nolo contendere to both of these crimes caused him to become a deportable alien under section 1227(a)(E)(i) of title 8 of the United States Code.
III. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.