Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 154861
ELIA, J.Teresa Madrigal Cabrera appeals from the denial of a motion to vacate judgment pursuant to Penal Code section 1016.5. (See § 1237, subd. (b); see People v. Totari (2002) 28 Cal.4th 876, 879, 887.) There are no existing official records showing that the court advised defendant of the possible immigration consequences of her pleas before accepting her March 1992 guilty pleas to two drug offenses.
All further statutory references are to the Penal Code unless otherwise stated. Appellant Cabrera's motion was also parenthetically entitled "Petition for writ of Coram Nobis" and she also argued that she did not knowingly, intelligently and voluntarily waive her constitutional rights when she pleaded. The court determined that only the portion of her motion to vacate judgment pursuant to section 1016.5 was procedurally proper. This judicial determination is not challenged on appeal.
On appeal, she claims that the superior court erred in finding that the prosecution had rebutted the statutory presumption that the court failed to give the immigration advisement required by section 1016.5. She specifically asserts that, in the absence of any official record of advisement, the declarations of the retired judge and prosecuting attorney who had been present at the plea proceeding were insufficient to support the court's finding that she had been properly advised of the immigration consequences of the pleas. She further maintains that she was prejudiced by the lack of such advisement.
We conclude that the evidence was sufficient to support the court's finding and affirm.
A. Procedural History
A felony complaint filed March 23 1992 charged appellant with three drug offenses committed on or about March 19, 1992: two violations of Health and Safety Code section 11351 (possession of a controlled substance, cocaine, for sale) (counts one and three) and a violation of Health and Safety Code section 11352, subdivision (a) (transportation of a controlled substance, cocaine) (count two). The complaint further alleged as to count three that she possessed for sale "a substance containing 28.5 grams and more of cocaine" within the meaning of section 1203.073, subdivision (b)(1).
Appellant's motion to vacate was filed on November 13, 2008. In her declaration in support of the motion, appellant stated the following. She had pleaded guilty to violating Health and Safety Code sections 11351 and 11352, subdivision (a), on or about March 31, 1992. She had not been advised of any immigration consequences by the court prior to entering her guilty plea. Her lawyer had not explained the immigration consequences of her plea before she pleaded. There had been no written waiver form. She had first learned of any immigration consequences of her conviction after she had contacted her immigration lawyer. She indicated that, if she had been aware of the immigration consequences of a guilty plea, she would not have entered such plea, she would have obtained expert immigration advice, she would have sought a case disposition avoiding immigration consequences, and she would have exercised her right to a jury trial and possibly obtained an acquittal of the charges.
Appellant also submitted a letter from the Santa Clara County Superior Court, dated October 28, 2008, that indicated the reporter's notes from March 31, 1992 had been destroyed and mentioned Government Code sections 68152, subdivision (j)(7), and 69955, subdivision (e).
Government Code section 68152 provides in pertinent part: "The trial court clerk may destroy court records under Section 68153 after notice of destruction and if there is no request and order for transfer of the records... when the following times have expired after final disposition of the case in the categories listed:... [¶] (j)... [¶] (7) Court reporter notes: 10 years after the notes have been taken in criminal and juvenile proceedings and five years after the notes have been taken in all other proceedings, except notes reporting proceedings in capital felony cases (murder with special circumstances where the prosecution seeks the death penalty and the sentence is death), including notes reporting the preliminary hearing, which shall be retained permanently, unless the Supreme Court on request of the court clerk authorizes the destruction." (See Gov. Code, § 68153 [judicial order for destruction of records].) Government Code section 69955, subdivision (e), states that a court reporter's reporting notes "may be destroyed upon the order of the court after 10 years from the taking of the notes in criminal proceedings and after five years from the taking of the notes in all other proceedings, unless the notes report proceedings in capital felony cases including the preliminary hearing" but "[n]o reporting notes in a capital felony case proceeding shall be destroyed until such time as the Supreme Court on request by the court clerk authorizes the destruction."
In opposition to the motion, respondent submitted the following. A certified computerized printout for Municipal Court docket number C980827, showing that appellant had entered a conditional plea on March 31, 1992. The felony minutes dated March 31, 1992 showed that appellant had pleaded guilty to counts one (Health & Safety Code, § 11351) and two (Health & Safety Code, § 11352, subd. (a)) and the court had ordered count three to be "submitted for dismissal." They also showed the presence of a Spanish interpreter on March 31, 1992. The sentence report, dated May 22, 1992, reflected appellant's pleas to counts one and two on March 31, 1992 and stated that appellant had been placed on three years formal probation and the court had dismissed count three. A minute order dated June 25, 1998, indicated that the court had granted a motion for record clearance pursuant to section 1203.4. A Santa Clara County Superior Court form, signed by the legal process clerk and dated December 11, 2008, indicated that the court's file in case number C9280827 had been purged pursuant to Government Code section 68152.
In addition to these documents, respondents filed the declaration of retired judge Robert Baines, who had presided over the March 31, 1992 proceedings and accepted appellant's plea, and the declaration of the prosecuting attorney who had been present when appellant pleaded. Although Judge Baines acknowledged that he did not specifically remember the case, he also stated: "It was always my habit and custom to advise each defendant of the potential immigration consequences of their pleas consistent with Penal Code § 1016.5, prior to the acceptance of a guilty plea or no contest plea. Specifically, I would advise a defendant that if he/she was not a citizen of the United States, conviction of the offense for which he/she had been charged may have a consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. In cases where a defendant is assisted with a court-certified interpreter, I am doubly careful to give these immigration advisements." He also indicated that he used a checklist, which included section 1016.5 advisements, whenever he took a plea. The retired judge indicated that, in 1992, he was aware that drug offenses might result in adverse immigration proceedings and that it was necessary to advise defendants of immigration consequences of pleas. He stated, "To the best of my knowledge, I did not fail to give the... Penal Code § 1016.5 advisement to the defendant Teresa Madrigal Cabrera in this case."
In her declaration, the prosecuting attorney stated she was the deputy district attorney present in court when appellant entered her plea on March 31, 1992. She explained that the D.A.'s felony case files have a "Felony Plea Voir Dire Checklist" attached to the inside of the left hand cover and deputy district attorneys use the checklist to make sure the judge properly gives all necessary advisements, including the advisement regarding immigration consequences pursuant section 1016.5. She stated that it was her "habit, custom and practice to only check off the appropriate box... when [she] actually heard the Judge give the verbal advisement or consequence."
In her declaration, the prosecuting attorney further indicated that she had reviewed the case file associated with the 1992 prosecution of appellant in docket number C9280827. She stated that she recognized her writing on the checklist, the document has her "check mark on the line underneath the heading 'Consequences of Plea' and next to 'Deportation, Exclusion, Denial Naturaliz'n if not a U.S. Citizen,' " and she "made this check mark when [she] personally heard Judge Baines advise the defendant of the immigration consequences of her plea of guilty to the felony charges of possession of cocaine for sale [Health & Safety Code § 11351] and transportation of cocaine [Health & Safety Code § 11352(a)] in this case." A copy of the checklist, which was attached as an exhibit to the declaration and which was dated March 31, 1992, is consistent with these statements.
At the January 23, 2009 hearing on the motion, appellant's counsel indicated that immigration documents had been faxed to the court. An October 11, 2007, notice ordered appellant to appear in removal proceedings under section 240 of the Immigration and Nationality Act. The Department of Homeland Security alleged in the notice to appear that appellant was not a citizen or national of the United States, she was a native and citizen of Mexico, and she had been convicted on March 31, 1992 of violating Health and Safety Code sections 11351 and 11352, subdivision (a).
Based upon the declarations submitted by the People, the court found that "the People have proven that the trial court gave the full and correct statutory advisement in this matter." The court denied the motion.
B. Motion to Vacate Judgment and Withdraw Pleas Pursuant to Section 1016.5
1. Applicable Law
Section 1016.5, subdivision (a), provides: "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.) Upon request, the court must "allow the defendant additional time to consider the appropriateness of the plea in light of the advisement" mandated by section 1016.5. (§ 1016.5, subd. (b).)
Subdivision (b) of section 1016.5 states: "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." (Italics added.)
"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. (Zamudio, supra, 23 Cal.4th at pp. 192, 199-200; People v. Dubon (2001) 90 Cal.App.4th 944, 951-952....) On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. (Zamudio, supra, 23 Cal.4th at pp. 209-210.)" (People v. Totari, supra, 28 Cal.4th at p. 884.)
2. Immigration Advisement
Section 1016.5 does not declare its presumption to be a conclusive presumption. (See Evid. Code, §§ 600, 620.) The section "establishes a rebuttable presumption affecting the burden of proof, rather than the burden of producing evidence." (People v. Dubon (2001) 90 Cal.App.4th 944, 953.) In People v. Dubon, supra, 90 Cal.App.4th 944, the minute order in that case "stated only that Dubon was advised of the effect of his plea on 'alien/citizenship' status" but it "did not specify that Dubon was advised his conviction could result in deportation." (Id. at 955.) The appellate court determined that the minute order was "insufficient to establish a 'record' that Dubon had received complete and accurate advisement of the immigration consequences of his plea." (Ibid.) It concluded, however, that the People had rebutted the statutory presumption through the testimony of the retired judge who handled defendant's case. (Id. at pp. 955-956.)
In Dubon, the retired judge had testified, among other things, that "[h]is practice and habit was to advise defendants as required by Penal Code section 1016.5 in every case" and "[h]e typically told defendants that, '[I]f you're not a citizen, entering a plea could result in your being deported, denied admission to the United States and denied citizenship.' " (Id. p. 949.) The appellate court determined that the retired judge's testimony, "[c]oupled with the minute order," "allowed the trial court to reasonably infer that Dubon was actually advised of the immigration consequences of his plea, overcoming section 1016.5's presumption of nonadvisement." (Id. at p. 956.)
In People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, a reporter's transcript of the plea hearing was not available. (Id. at p. 1243.) "The minutes of the sentencing court were set forth on a preprinted form with check boxes, and an 'x' appeared in the box next to preprinted language that included the following: 'Defendant advised of possible effects of plea on any alien/citizenship/probation/parole status.' The record show[ed] no other advisement by the court as to immigration consequences. However, the probation officer stated in his report that he told appellant he could be deported and appellant replied, 'That's O.K., I have papers.' " (Ibid.) The appellate court found that the minute order "was insufficient to show that appellant was advised of all three possible immigration consequences, and as the prosecution presented no further evidence, the presumption was not rebutted. (See People v. Dubon (2001) 90 Cal.App.4th 944, 954-955....)" (Id. at pp. 1244-1245.)
In this case, the municipal court's minutes do not demonstrate that the court gave the immigration advisement as required by section 1016.5 and the reporter's notes with regard to appellant's March 21, 1992 entry of plea are no longer available. Nevertheless, the declarations of the retired judge and prosecuting attorney, who both had been present when appellant pleaded, together with the felony plea voir dire checklist in the D.A.'s case file, which was contemporaneously completed by the prosecuting attorney during the court's plea advisements on March 31, 1992, are sufficient to rebut the statutory presumption that the required immigration advisement was not given.
Appellant contends that there is no official judicial record that "constitutes 'a record' within the meaning of Penal Code section 1016.5." She argues that this court "should hold that declarations alone are insufficient to overcome the statutory presumption set forth in Penal Code section 1016.5." While an official record of advisement is required to prevent the rebuttable presumption from arising under section 1016.5, once the rebuttable presumption comes into play, section 1016.5 places no restriction on permissible rebuttal evidence.
The Evidence Code provides that "[t]he effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." (Evid. Code, § 606.) " 'Burden of proof' means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 115.) "Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." (Ibid.) "The language of Penal Code section 1016.5, subdivision (b), does not specify that a burden of proof higher than the preponderance of the evidence is required. Thus, the presumption places upon the People the burden of proving by a preponderance of the evidence the nonexistence of the presumed fact, i.e., that the required advisements were given. [Citations.]" (People v. Dubon, supra, 90 Cal.App.4th at p. 954.) Appellant does not argue that the court was statutorily prohibited from considering and making reasonable inferences from the declarations provided by the prosecution.
In arguing the evidentiary insufficiency, appellant points out that Judge Baines "candidly admitted" in his declaration that he did not remember this case and the official record does not establish that he "adhered to his custom and practice." Appellant further suggests that the prosecuting attorney was "a biased witness who has an interest in protecting the adequacy of her own performance." She also asserts that the checklist in the prosecutor's case file was insufficient to establish that she was properly and fully advised of each of the three immigration consequences because the form does not provide for a separate checkmark as to each consequence. She further asserts that the "prosecutor's personal checklist" does not have "the same weight as the minute order in Dubon."
Appellant's arguments go to the weight and credibility of the evidence rather than the sufficiency of evidence. When the superior court rules on a section 1016.5 motion, it "is the trier of fact and hence the judge of the credibility of the witnesses or affiants." (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) In assessing the sufficiency of evidence, "[a] reviewing court neither reweighs evidence nor reevaluates a witness's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129....)" (People v. Lindberg 2008) 45 Cal.4th 1, 27.) " 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination....' [Citation.]" (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. omitted.)
The prosecutor's plea checklist specifies deportation, exclusion, and denial of naturalization as plea consequences. The superior court could reasonably conclude based upon all the evidence that the court properly advised appellant of the three possible immigration consequences as statutorily required by section 1016.5. As in Dubon, the evidence in this case "was sufficient to meet the People's burden of proof and rebut the statutory presumption." (People v. Dubon, supra, 90 Cal.App.4th at p. 956.) In light of our conclusion, we do not reach the issue of prejudice.
The order denying appellant's section 1016.5 motion to vacate judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.