Opinion
F078868
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. CRESCENSIO ARELLANO CHAVEZ, Defendant and Appellant.
Office of the Federal Defender and Reed Grantham for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. Christoffersen, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CF95535959)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. James A. Kelley, Judge. Office of the Federal Defender and Reed Grantham for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Defendant Crescensio Arellano Chavez pled guilty to assault with a firearm in 1995. He was deported in 2006. He contends on appeal the trial court abused its discretion when it denied his motion to vacate the judgment brought on the ground he was inadequately advised of the possible immigration consequences of his plea (Pen. Code, § 1016.5). We affirm.
All further statutory references are to the Penal Code unless otherwise noted.
FACTS
On March 31, 1995, at approximately 10:30 p.m., A.M. was with several other gang members on a street in Fresno. As A.M. spoke on a cell phone with his girlfriend, a car pulled up next to them. The passenger window then rolled down and Chavez, who was then 19 years old, fired four shots from a .380 semiautomatic handgun at the group, striking A.M. once in the lower back.
Chavez was originally charged with four counts of assault with a firearm (§ 245, subd. (a)(2)).
On May 19, 1995, Chavez waived a preliminary hearing and pled guilty to one count of assault with a firearm in exchange for no initial state prison time and the dismissal of the remaining counts. Prior to entering his plea, Chavez filled out a change of plea form on which he initialed the section that stated: "If I am not a citizen my change of plea could result in my deportation, exclusion from admission to the United States, and/or denial of naturalization." He also signed an acknowledgement at the end of the form that stated, "I declare under PENALTY OF PERJURY, under the laws of the State of California, that I have read, understood, and initialed each item above, and everything on the form is true and correct."
The plea form states "GUILTY/NO CONTEST," but the minute order states "guilty."
On the same plea form, Chavez's plea counsel signed an acknowledgement at the end of the form attesting that he went over the form with Chavez; explained his rights to him; answered all his questions about his plea; discussed the facts of the case with him; and explained the consequences of his plea, the elements of the offense, and possible defenses. Additionally, the trial court signed a statement on the same plea form attesting it had questioned Chavez about his constitutional rights and found he had expressly, knowingly, understandingly, and intelligently waived those rights and his plea was freely and voluntarily made with an understanding of its nature and consequences.
We use the terms "plea counsel" and "motion counsel" to differentiate between defense counsel who assisted with the plea in 1995 and defense counsel who brought the motion to vacate the judgment in 2018.
Further, the minute order of the change of plea hearing, which consisted of two pages, stated on the second page that the court had advised Chavez of the "[c]onsequences of [his] plea, e.g., ... deportation," with the word "deportation" written in. Although the court clerk signed a certification at the bottom of the first page that stated, "the foregoing [was] a true and correct copy of the proceedings[,]" a similar certification at the bottom of the second page was not signed.
On June 20, 1995, the trial court rejected the plea agreement.
On July 10, 1995, the plea was renegotiated and modified to provide for the mitigated prison term of two years and, pursuant to the agreement, Chavez was sentenced to the stipulated prison term of two years.
On February 6, 2004, Chavez was served with a letter from the United States Department of Justice notifying him that he was "prohibited from entering, attempting to enter, or being in the United States" and was found inadmissible, excludable or deportable because he had been convicted of a crime designated as an aggravated felony.
On December 21, 2006, Chavez was deported.
On November 20, 2018, Chavez's motion counsel filed a motion to vacate the judgment on the grounds that both the trial court and plea counsel had failed to properly advise him of the possible immigration consequences of his plea in violation of section 1016.5.
Motion counsel attempted to obtain a transcript of the May 19, 1995 change of plea proceedings but was informed that, due to the age of the case, the court reporter notes for the hearing had been destroyed. Motion counsel, however, did obtain a copy of the two-page minute order of the hearing, which he attached as an exhibit to the motion.
In a supporting declaration, Chavez declared he had attended approximately three years of school in Mexico before being brought to the United States between the ages of 10 and 13 years old. When he was 14 years old, his family moved to Fresno, where he attended high school and was enrolled in English as a second language classes. After turning 15 in October that year, he stopped attending high school and went to work with his father in the fields. When he pled guilty in 1995, he did not speak, read, or write English and had difficulty understanding the proceedings. He did not have a court interpreter at any of the hearings or when he filled out the plea form with plea counsel. Chavez did not understand that his legal status in the United Stated could be revoked, and he was not advised by the trial court that the possible immigration consequences of pleading to assault with a firearm included deportation, exclusion from admission, or the denial of naturalization. Chavez further declared that plea counsel never advised him these could be consequences of his plea, and that he did not have any knowledge of them until February 6, 2004, when he was served with the final administrative order. He was deported and permanently excluded from the United States on December 21, 2006. If he had known that his conviction for assault with a firearm could result in his deportation, his inability to reenter the United States, or his inability to seek naturalization, he would not have pled guilty. He did not know until September 2018 that the court was required to advise him of the immigration consequences of his plea.
This claim was patently false because documents that were obtained from the United States Department of Justice by motion counsel to prepare the motion to vacate were marked as having been produced on October 13, 2017.
On January 11, 2019, the prosecutor filed an opposition to Chavez's motion to vacate the judgment. The prosecutor attached several exhibits to the opposition, including the 1995 plea form.
On January 17, 2019, the court heard Chavez's motion. During the hearing, motion counsel argued, in part, that the minute order for the 1995 plea hearing was insufficient to show the trial court advised Chavez of the immigration consequences of his plea because the word "deportation" was written on the second page and that page had not been certified as true and correct by the court clerk. When the court asked motion counsel if he had any "issue" with the court's taking judicial notice of the file, motion counsel stated, "Not so much with judicial notice[,]" and explained he was simply pointing out that the second page of the order was not certified by the court clerk. The court concluded the advisement to Chavez of the possible immigration consequences of his plea had been sufficient and denied the motion.
On February 19, 2019, Chavez filed a timely notice of appeal.
DISCUSSION
Chavez contends the trial court abused its discretion in denying his motion to vacate the judgment because the plea form he executed in 1995 failed to establish that he understood the immigration consequences of his plea. He argues there was no evidence that the trial court questioned him concerning the plea form to ensure he actually read and understood it or that he had the opportunity to discuss the consequences with plea counsel. He further contends he established that the failure to properly advise him of the immigration consequences of his plea prejudiced him because his assault conviction resulted in his being deported in 2006. He unequivocally stated in his declaration that he would not have entered a plea had he known its immigration consequences. The People contend the court properly denied the motion because it was untimely, the evidence established Chavez was properly advised of the immigration consequences of his plea, and Chavez failed to establish prejudice. I. Law
Chavez's original plea was not immigration neutral as he contends. Chavez could have received a 365-day probationary term which would have had the same immigration consequences. (See § 19.2, 8 U.S.C. § 1101(a)(43)(F) [defining "aggravated felony" for federal immigration purposes as "a crime of violence ... for which the term of imprisonment [is] at least one year"].)
"Section 1016.5[, subdivision ](a) requires a trial court, before accepting a plea of guilty or no contest, to explain to a defendant that if the defendant is not a citizen of this country, conviction of the charged offense 'may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization ....' Section 1016.5[, subdivision ](b) provides a remedy for a noncitizen defendant who is not advised of these consequences: 'If ... the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which [the] 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 ... the court, on [the] 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.' To prevail on a section 1016.5 motion, a defendant must establish: (1) that the advisements were not given; (2) that the conviction may result in adverse immigration consequences; and (3) that the defendant would not have pled guilty or no contest had proper advisements been given." (People v. Arriaga (2014) 58 Cal.4th 950, 957-958 (Arriaga).)
However, section 1016.5, subdivision (b), further provides, " '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.' " (Arriaga, supra, 58 Cal.4th at p. 961.) In such cases, it is the prosecution's burden to rebut this presumption by proving by a preponderance of evidence that the defendant was properly advised. (Id. at p. 963.)
We review an order denying a section 1016.5 motion to vacate the judgment for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) Under this standard we must decide " 'whether the trial court's findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.' " (People v. Clancey (2013) 56 Cal.4th 562, 578.) Chavez has the burden to show the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.) II. Analysis
Because no reporter's transcript existed of Chavez's 1995 plea hearing and the minute order for that hearing did not set forth the actual advisements given, section 1016.5's presumption of nonadvisement applied and the prosecution had the burden of establishing Chavez was advised of the three possible immigration consequences of his plea. (§ 1016.5, subd. (b), Arriaga, supra, 58 Cal.4th at p. 961.)
Arriaga is instructive here. In that case, the defendant pled guilty in 1986 to possession of a sawed-off shotgun, which made him deportable. (Arriaga, supra, 58 Cal.4th at p. 955.) In 2010, after deportation proceedings had begun against him, he filed a motion pursuant to section 1016.5 in superior court to vacate his 1986 conviction. (Arriaga, at p. 956.) The reporter's transcript of the 1986 plea hearing had been destroyed. However, there was still available a minute order that was silent on the three immigration consequences of a plea of guilty or no contest, but showed a checked box next to the statement, "Defendant advised of possible effects of plea on any alien or citizenship/ probation or parole status." (Arriaga, at p. 956.) At the hearing on the defendant's 2010 motion to vacate, the prosecutor who had been assigned to the 1986 plea hearing testified that although he did not specifically remember the defendant, it was his practice to always advise defendants of the immigration consequences of pleading guilty or no contest, as required by section 1016.5. He also recited in detail the advisement he always gave. (Arriaga, at p. 956.) In finding this sufficient to rebut the presumption of nonadvisement, the Supreme Court stated: "This testimony, coupled with the checked box on the minute order of the 1986 plea hearing, which indicated, 'Defendant advised of possible effects of plea on any alien or citizenship/probation or parole status,' supports the trial court's finding that defendant was told of the immigration consequences of pleading guilty." (Arriaga, at pp. 963-964.)
Here, the record contains the plea form Chavez executed in 1995 in which he initialed a box next to a statement that advised him that if he was not a citizen his plea could "result in ... deportation, exclusion from admission to the United States, and/or denial of naturalization." He also signed a statement on the form attesting that he read, understood, and initialed the items on the form and that everything on the form was true and correct. Plea counsel signed a statement on the form attesting, in pertinent part, that he went over the form with Chavez, answered his questions regarding the plea, and explained to him the consequences of entering a plea. Further, the trial court signed a statement attesting that it questioned Chavez and found, among other things, that he entered his plea freely and voluntarily with an understanding of the nature and consequences of his plea. Additionally, the prosecution introduced a minute order on which the court clerk indicated the court had informed Chavez of the consequences of his plea, "e.g., ... deportation."
Chavez contends this evidence was insufficient to rebut the nonadvisement presumption because California courts have unanimously held that in addition to a signed plea form, there must also be a record that the defendant was questioned at the time of the plea regarding the form, its content, his or her understanding of it, and whether the defendant had the opportunity to discuss the form with counsel. He contends Arriaga is distinguishable because the prosecutor's testimony there established that the defendant was advised of the consequences of his plea in court at the time of his plea and unlike the defendant in Arriaga, who could not remember if he was advised of the immigration consequences of his plea (Arriaga, supra, 58 Cal.4th at p. 963), Chavez stated in his declaration that he was not advised of these consequences.
Chavez's attempts to distinguish Arriaga are unpersuasive because Arriaga found the evidence sufficient to rebut the presumption of nonadvisement even without any evidence in the record explicitly showing that the type of questioning he refers to occurred. Here, the plea form clearly stated the required advisement of the possible immigration consequences of his plea and included Chavez's signature attesting to his understanding of these consequences. It also contained the contemporaneous attestations of plea counsel and the trial court, confirming their actions and Chavez's understanding of these consequences. The minute order of the hearing confirmed these events. We note that the record in this case, including the contemporaneous attestations to the actions of plea counsel and the trial court, exceeds that in Arriaga, where the prosecutor testified decades later to his customary advisements. Further, we reject Chavez's contention that the admonitions did not occur at the time of the plea because he completed the plea form several weeks prior to accepting the renegotiated plea; he cites no authority in support of such a rigid requirement. We conclude the advisement in the plea form was complete and fully met the requirements of section 1016.5. (See People v. Ramirez (1999) 71 Cal.App.4th 519, 522-523 [the advisements required by section 1016.5 may be given in a validly executed plea form rather than orally by the court; the written record is sufficient if it contains the required language].)
Lastly, Chavez asserts the minute order was insufficient to corroborate the statement in the plea form because the minute order referred only to deportation and was not certified. But in Arriaga, the notation in the minute order did not specifically refer to the three possible immigration consequences of the plea. Further, the notation here provided more compelling corroboration because the abbreviation "e.g.," preceded the word "deportation," signifying that deportation was only one example of the immigration consequences of which the court advised Chavez.
Moreover, Evidence Code section 1280, which permits admission of records by public employees, provides:
"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:
"(a) The writing was made by and within the scope of duty of a public employee.
"(b) The writing was made at or near the time of the act, condition, or event.
"(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
"... Section 1280, as does existing law, permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness." (Cal. Law Revision Com. com., 29B West's Ann. Evid. Code (2015 ed.) foll. § 1280, p. 48.)
Further, because the 1995 minute order was the superior court clerk's record of any order, judgment or decree of the court that the clerk is required to keep (Gov. Code, § 69844), and satisfied the three requirements of Evidence Code section 1280, it was admissible as an official record. Plea counsel did not contend otherwise in the trial court. Instead, he appeared to challenge only the trustworthiness of the information on the second page, which had "deportation" written on it, because that page did not contain a certification that the "foregoing information was true and correct."
"In applying the official records exception, [the court clerk's] statutory reporting and recording duties are significant because, under Evidence Code section 664, '[i]t is presumed that official duty has been regularly performed.' This presumption 'affect[s] the burden of proof' (Evid. Code, § 660), meaning that the party against whom it operates—here, [Chavez]—has 'the burden of proof as to the nonexistence of the presumed fact.' (Evid. Code, § 606; [citation].)
"California courts have applied this presumption in finding that proffered evidence satisfies the foundational requirements of the official records exception. [Citations.] California courts have also held that this presumption applies to actions of trial judges, court clerks, and police officers." (People v. Martinez (2000) 22 Cal.4th 106, 125.)
Plea counsel did not rebut the presumption of Evidence Code section 664 because other than asserting the minute order was not certified, he did not explain how this affected the trustworthiness of the information recorded on page 2 of the order. Thus, we conclude that the trial court properly relied on page 2 of the order to corroborate the information in the plea form.
In sum, the trial court did not abuse its discretion when it denied Chavez's motion to vacate the judgment.
In view of our conclusion that Chavez was properly advised of the possible immigration consequences of his 1995 plea, we do not reach the issues of the timeliness of his motion or prejudice.
DISPOSITION
The order denying Chavez's motion to vacate the judgment (§ 1016.5) is affirmed.