Opinion
E051839 Super.Ct.No. FVA010832
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. RIGOBERTO CASILLAS, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan Beale and A. Natasha Cortina, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed in part; reversed in part with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Rigoberto Casillas appeals the trial court's denial of the following requests for postconviction relief: (1) motion to expunge his two prior felony convictions (Pen. Code, § 1203.4, subd. (a)); (2) motion to reduce his two prior felony convictions to misdemeanors (§ 17, subd. (b)); (3) two petitions for writ of error coram nobis; and (4) motion to set aside or vacate the judgment (§ 1016.5, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Following an incident occurring on January 20, 1999, defendant and two codefendants were charged with two counts of attempted premeditated murder on two separate victims (§§ 664, 187, subd. (a)). As to both counts, it was further alleged that the defendants personally used firearms to commit the offenses (§ 12022.53, subd. (b)), and that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)).
Defendant was known to be a Westside Bloomington ("Blumas") gang member. On the date in question, defendant and two associates walked by a home and saw one of the victims "'flipping them off.'" In response, one of defendant's affiliates threw a rock at a front window of the home. The victim then ran outside with a shotgun yelling "'Los Angeles.'" Later, defendant and his two associates returned to the victim's house with two handguns and, without saying a word, fired 14 rounds into the home. The juvenile victim and his mother were inside the home at the time the shots were fired. Fortunately, neither of the victims was hit by any of the bullets.
Pursuant to a written plea agreement, defendant pled guilty on February 8, 1999, to two counts of assault with a deadly weapon (§ 245, subd. (a)(2)). The plea agreement states that both offenses qualify as strikes. Defendant also admitted the gang allegations. The plea agreement also provided for all other counts and allegations to be dismissed and stricken, including the allegation that defendant personally used a handgun to commit the offenses.
Assault with a deadly weapon was deemed a lesser included offense to the original attempted murder charges.
No preliminary examination was conducted in this matter, so the probation officer's presentence investigation report dated March 2, 1999 is the only source of information in the record discussing the details of the offenses. As provided California Rules of Court, rule 4.411.5(a)(2), a probation officer's presentence investigation report must include the facts and circumstances of the crime. Because the personal use allegations under section 12022.53, subdivision (b), were dismissed and stricken pursuant to the plea agreement, defendant contends the record shows he did not personally use a firearm in the commission of the offenses. Defendant does not otherwise dispute the contents of the presentence report.
On April 19, 1999, the court followed the plea agreement by granting defendant supervised probation for a period of 36 months, subject to various terms and conditions, including 365 days in jail. The record indicates defendant's probation expired without incident.
As a result of his two felony convictions for assault with a deadly weapon, defendant is facing deportation to Mexico. In an attempt to avoid deportation, defendant filed a motion on June 22, 2010, seeking (1) to reduce his convictions to misdemeanors under section 17, subdivision (b); (2) to reduce his probationary jail sentence to 364 days based on ineffective assistance of counsel; and (3) to expunge his convictions under section 1203.4. The trial court denied the motions on July 28, 2010.
On July 26, 2010, defendant filed a motion to withdraw his plea and to set aside the judgment under section 1016.5. Along with this motion, defendant alternatively sought relief through a petition for writ of error coram nobis, asking the court to reduce his probationary jail sentence from 365 days to 364 days based on ineffective assistance of counsel and the court's failure to adequately advise of the immigration consequences of his guilty plea. On August 10, 2010, defendant filed a second petition for writ of error coram nobis seeking the same relief on similar grounds. On August 26, 2010, the trial court concluded it had no jurisdiction over the case and took the motion and petitions off calendar.
DISCUSSION
A. REDUCTION OF FELONIES TO MISDEMEANORS UNDER SECTION 17
For several reasons, defendant argues the trial court abused its discretion when it denied his motion to reduce his felonies to misdemeanors. First, defendant contends his motion should have been granted, because he successfully completed probation and his subsequent criminal history only includes minor vehicle-related misdemeanors. Second, he has young children and his family will suffer greatly if his felony convictions are not reduced to misdemeanors, because he will be deported. Third, the applicable factors to be considered weigh in favor of the requested reductions.
Assault with a deadly weapon under section 245, subdivision (a)(2) is a "wobbler" offense. "A wobbler is an offense chargeable as either a misdemeanor or a felony." (Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 828, fn. 5.) The actual punishment imposed determines whether a "wobbler" is a misdemeanor or a felony. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 137.) When the court does not impose a sentence and grants probation, "the offense shall be regarded as a felony for all purposes until judgment, and if no judgment is pronounced it remains a felony." (Ibid.)
Under subdivision (b)(3) of section 17, the sentencing court has discretion to reduce a "wobbler" offense from a felony to a misdemeanor based on an application by the offender. (§ 17, subd. (b)(3).) A defendant is not barred from making an application under subdivision (b)(3) of section 17 after his probationary period has expired. (Meyer v. Superior Court, supra, 247 Cal.App.2d at pp. 139-140.) Such an application can even be submitted "long after [a defendant's] probation has expired," because the purpose of section 17 is to allow the court to reward a convicted defendant who demonstrates by his conduct that he is rehabilitated. (Id. at pp. 140-141.)
"When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes . . . . [¶] . . . [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (§ 17, subd. (b)(3).) Subdivision (a)(2) of section 245 states as follows: "Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year . . . ."
In determining whether it is appropriate to exercise discretion under subdivision (b)(3) of section 17, courts should consider the same factors that are relevant to other sentencing decisions, including "'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.]" (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 978 (Alvarez).) When appropriate, courts should also consider the general objectives of sentencing, such as those set forth in rule 4.410 of the California Rules of Court. These objectives include protecting society, punishing the defendant, encouraging lawful behavior, deterring future offenses, and uniformity in sentencing. (Cal. Rules of Court, rule 4.410(a).) "[T]he sentencing judge must consider which objectives are of primary importance in the particular case [and] should be guided by statutory statements of policy, . . . and the facts and circumstances of the case." (Cal. Rules of Court, rule 4.410(b).)
We review a trial court's denial of a motion to reduce a "wobbler" from a felony to a misdemeanor for an abuse of discretion. Trial courts have broad discretion in determining whether to reduce a felony to a misdemeanor under subdivision (b) of section 17, and defendant bears the burden of showing the decision was irrational or arbitrary. (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
In reaching its decision to deny defendant's motion under subdivision (b)(3) of section 17, the trial court considered a supplemental probation report stating defendant has incurred the following seven new offenses since he pled guilty in this case in 1999: (1) driving with a suspended license on October 2, 2002 (Veh. Code, § 14601.1, subd. (a)); (2) giving false information to a peace officer on June 12, 2003 (Veh. Code, § 31); (3) driving without a license on January 31, 2005 (Veh. Code, § 12500, subd. (a)); (4) failure to appear after written promise on January 31, 2005 (Veh. Code, § 40508, subd. (a)); (5) driving without a license on March 17, 2005 (Veh. Code, § 12500, subd. (a)); (6) failure to appear after written promise on March 17, 2005 (Veh. Code, § 40508, subd. (a)); and (7) driving under the influence (DUI) on November 2, 2008 (Veh. Code, § 23152, subds. (a) & (b)).
Based on the seriousness of the two prior felony convictions and the number and seriousness of defendant's subsequent Vehicle Code violations, the probation department recommended denial of defendant's request. At the hearing on defendant's motion, the court said, "[W]ith such a record, even minuscule offenses offend this Court, especially when they concern failure to appear after written promise. So I don't see that as minor and I don't see DUIs as minor. [¶] Granted, . . . they are less than firearm charges. Nonetheless, this man should have stayed out of trouble completely in order for this Court to grant such a huge request of what he's asking."
In our view, the trial court acted well within is discretion in denying defendant's request to reduce his two prior convictions, for assault with a firearm, to misdemeanors. Both offenses included gang enhancements, were very serious given the facts as presented in the probation report, and had already been reduced from attempted murder to assault with a firearm. We also cannot disagree with the trial court finding defendant's Vehicle Code violations were not minor, particularly given the DUI offense and defendant's failure to appear after written promise on two separate occasions. The number, frequency, and seriousness of these subsequent offenses demonstrate defendant has not been rehabilitated and does not have respect for the rule of law. Under the circumstances presented, the trial court was entitled to conclude these negative factors outweighed any information that may have favored a reduction. In sum, defendant has not met his burden to show the trial court's denial of his request was arbitrary or irrational.
B. EXPUNGEMENT UNDER SECTION 1203.4
The trial court also denied defendant's request under section 1203.4, subdivision (a) to expunge his prior felony convictions based on the seriousness of the offenses and the number and seriousness of the subsequent Vehicle Code violations. Because he claims he successfully completed his probation, defendant contends it was mandatory for the trial court to expunge his prior felony convictions under section 1203.4, subdivision (a). In other words, defendant believes he is entitled to relief under section 1203.4, subdivision (a) as a matter of law. As a result, he contends the trial court's denial of his request should be reversed.
Subdivision (a) of section 1203.4 states in part as follows: "In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, . . . or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant . . . ." (Italics added.)
"The expunging of the record of conviction is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation." (People v. Turner (1961) 193 Cal.App.2d 243, 247.) A defendant who has fulfilled the conditions of his probation for the entire period is entitled to the relief provided in subdivision (a) of section 1203.4 as a matter of law. (People v. Covington (2000) 82 Cal.App.4th 1263, 1266.) However, the provisions of section 1203.4 are not mandatory when there is evidence in the record to show the defendant did not fulfill all of the conditions of his probation for the entire period. (Turner, at pp. 246-247.)
Here, defendant was granted probation on April 19, 1999, for a period of three years. All of his Vehicle Code violations apparently occurred after his probation had expired. There is nothing in the record to indicate defendant did not fulfill the conditions of his probation for the entire period. The People agree that the trial court erroneously denied defendant's request and that he is entitled to relief under subdivision (a) of section 1203.4. We agree with the parties. Defendant is therefore entitled to a reversal of the trial court's ruling and to a remand, so he may be permitted to withdraw his guilty plea and have his prior felony convictions dismissed.
C. PETITION FOR WRIT OF ERROR CORAM NOBIS
Along with his motions, defendant also filed two separate petitions for writ of error coram nobis on July 26, 2010, and August 10, 2010, seeking relief based on ineffective legal representation and inadequate advisement of the immigration consequences of his guilty plea. According to defendant, his counsel was ineffective because he failed to research and learn that a 365-day jail sentence would subject him to automatic deportation when a 364-day sentence would not. If he had done so, defendant believes counsel would have been successful in obtaining a 364-day jail term. As noted above, the trial court concluded it had no jurisdiction over the case and took the petitions off calendar, stating "[p]robation has long since expired." Defendant argues the court did have jurisdiction to rule on his petitions because there is no time limit for filing a petition for writ of error coram nobis. As a result, he believes he is entitled to a reversal with directions for the trial court to rule on the merits.
Although it is true, as defendant contends, that there is no specific deadline for filing a writ of error coram nobis, a showing of diligence is a prerequisite to the availability of relief through this procedure. (People v. Kim (2009) 45 Cal.4th 1078, 1096.) In this regard, a defendant must show the facts which serve as the basis for the writ could not have been discovered by the exercise of due diligence at any time substantially earlier than when the writ was filed. (Id. at p. 1097.) Therefore, the petition must allege with specificity when the defendant learned of the facts forming the basis for the requested relief. (Id. at p. 1098.)
Here, defendant contends the trial court should have ruled on the merits of his petition, because he acted in a diligent manner by filing his petitions soon after learning about the immigration consequences of his felony convictions. However, the record conflicts with defendant's contention. The record indicates defendant was advised of the immigration consequences at the time he entered his guilty plea on February 8, 1999. On his written plea form, defendant initialed the paragraph that states, "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty/nolo contender (no contest)."
In addition, as the People point out, an appellate court need not remand a case for further proceedings where it would be futile to do so. (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.) In People v. Kim, supra, 45 Cal.4th at page 1104, our Supreme Court held that a writ of error coram nobis does not lie for a claim of ineffective assistance of counsel or for a claim that the defendant was not properly advised of the immigration consequences of a guilty plea. Therefore, a reversal and remand is unnecessary, because it would be futile for the trial court to consider the merits of defendant's petitions.
D. MOTION TO SET ASIDE PLEA UNDER SECTION 1016.5
Along with his petitions for writ of error coram nobis, defendant also filed motions to set aside the judgment under section 1016.5. In his motions, defendant claimed the trial court failed to make the advisements required by section 1016.5 at the time of his guilty plea. He further alleges his attorney was ineffective in researching and advising him about the adverse immigration consequences of his plea. Even if he did receive some notice of the potential immigration consequences, he claims it was ineffective, because he is Spanish speaking and was not provided with an interpreter. As with his two writ petitions, defendant's motions were simply taken off calendar, because the trial court concluded it had no jurisdiction to consider the merits. The court stated "[p]robation has long since expired." Citing People v. Totari (2002) 28 Cal.4th 876, defendant argues he is entitled to a remand and a ruling on the merits, because a motion under section 1016.5 is proper even if it is filed after probation has expired and a judgment is final.
Prior to the acceptance of a guilty plea, section 1016.5 requires trial courts to advise defendants that a conviction of the offense "may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization . . . ." (§ 1016.5, subd. (a).) If the defendant is not so advised, "the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty . . . 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." (Id. at subd. (b).) The purpose of the advisement is "to promote fairness." (Id. at subd. (d).)
A motion to vacate under section 1016.5 must be brought within a reasonable time after the defendant has cause to believe the conviction may have adverse immigration consequences. (People v. Superior Court (Zamudio)(2000) 23 Cal.4th 183, 204-207.) "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. [Citations.] 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. [Citation.] Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. [Citation.] Thus, in deciding the merits of defendant's motion to vacate, it may be important for the trial court to determine the factual issue of knowledge." (People v. Totari, supra, 28 Cal.4th at p. 884.) Whether a defendant was prejudiced by a trial court's failure to provide a complete advisement as required by section 1016.5 "is a factual question, appropriate for decision by the trial court in the first instance. [Citations.]" (Zamudio, at p. 210.)
We agree with defendant and the People that the trial court erroneously concluded it did not have jurisdiction to consider and rule on the merits of defendant's motions under section 1016.5. We also agree with the parties that a remand for a new hearing on defendant's motions is appropriate, because the issues raised involve factual determinations that should be made by the trial court in the first instance. The record on appeal does not include all of the evidence that should be considered in deciding the merits of defendant's motions.
DISPOSITION
The superior court's order taking defendant's motions, made pursuant to section 1016.5, off calendar without ruling on the merits is reversed. In addition, the trial court's order denying defendant's request for relief under subdivision (a) of section 1203.4 is reversed. The case is remanded with directions for the superior court to hold a new hearing on these matters. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting P. J.
CODRINGTON
J.