Opinion
A146862
08-15-2017
THE PEOPLE, Plaintiff and Respondent, v. VINH Q. CHUNG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. SCN 218045)
Vinh Q. Chung pleaded guilty to sodomy by acting in concert with force (Pen. Code, § 286, subd. (d)(1)), and to oral copulation by acting in concert with force (§ 288a, subd. (d)(1)). The trial court sentenced Chung to the agreed-upon term of 18 years in prison.
All undesignated statutory references are to the Penal Code. --------
Chung appeals. He contends he was denied his constitutional right to a Vietnamese interpreter at the sentencing hearing. We dismiss Chung's appeal because it can only be construed as a challenge to the validity of his plea, which required a certificate of probable cause. (§ 1237.5.)
FACTUAL AND PROCEDURAL BACKGROUND
In October 2001, three Asian men kidnapped and sexually assaulted a woman in San Francisco. After the assault, the victim was taken to the hospital, where a nurse practitioner collected swabs from her vaginal, oral, and rectal areas. A sample of the victim's jeans was also collected. DNA obtained from the swabs and the jeans matched Chung's DNA profile.
The information charged Chung with six crimes: kidnapping to commit another crime (§ 209, subd. (b)(1) (Count 1)); forcible rape while acting in concert (§ 264.1 (Count 2)); sodomy by acting in concert with force (§ 286, subd. (d)(1) (Count 3)); oral copulation by acting in concert with force (§ 288a, subd. (d)(1) (Count 4)); sexual penetration by foreign object, force and violence (§ 289, subd. (a)(1) (Count 5)); and kidnapping to commit another crime (§ 209, subd. (b)(1) (Count 6)). Counts 2 to 5 included special allegations of kidnapping (§ 667.61, subds. (d)(2), (e)(1)).
At Chung's initial appearance, the court ordered the services of a Vietnamese interpreter. Two days later, Chung—assisted by a Vietnamese interpreter—pleaded not guilty as to each count. Chung subsequently appeared in court a number of times assisted by a Vietnamese interpreter.
At many other court appearances, however, Chung waived the assistance of the interpreter. At Chung's preliminary hearing, Chung's counsel stated, "although on occasion Mr. Chung has used an interpreter, all of my conversations with him have been in the English language. He's conversant in the English language, and for the purpose of this hearing, I don't believe we have to have the interpreter." Nevertheless, Chung's counsel requested an interpreter for the scientific portion of the preliminary hearing, and, during the scientific testimony, a Vietnamese interpreter assisted Chung.
At another hearing, Chung's counsel stated: "I'd like the record to reflect Mr. Chung and I do speak in the English language. [¶] And he does understand English; is that correct?" Chung responded "Yes." About two months later, Chung's counsel stated "[f]or purpose of today we will waive [the need for a Vietnamese interpreter], because I speak to Mr. Chung in the English language, and for simple matters, such as setting, he is fine." Similarly, at a hearing a few days later, Chung's counsel stated, "I have had numerous conversations with my client in the English language, and for the purposes of this proceeding we do not need an interpreter."
Three days before Chung's change-of-plea hearing, Chung's counsel requested a Cantonese interpreter. When the court indicated a Vietnamese interpreter previously assisted Chung, his counsel responded "I talked to the family. Although he is Vietnamese, his preferred language is Cantonese." Chung was present when his attorney said so. The court ordered a Cantonese interpreter for future callings of the case.
At the change-of-plea hearing, a Cantonese interpreter assisted Chung. Chung—in Cantonese—apologized to the victim, and stated he wanted to be a good citizen and father for his daughter. The court told Chung he was facing the rest of his life in prison, but "through the efforts of your attorney and the reasonableness of the district attorney . . . , they have managed to get you about the lowest term possible in this case."
At the same hearing, Chung's attorney admonished him regarding the consequences of his change of plea, including that he would be sentenced to 18 years in prison. Chung acknowledged the rights he was waiving by pleading guilty to two of the six counts, and Chung agreed another judge could sentence him "so long as the sentence is the same as stated today." Chung pleaded guilty to sodomy by acting in concert with force (§ 286, subd. (d)(1) (Count 3)), and to oral copulation by acting in concert with force (§ 288a, subd. (d)(1) (Count 4)). The court found Chung "has been advised of his constitutional rights, he has knowingly, intelligently, and voluntarily waived those rights, and has entered his plea well knowing the consequences." The court accepted the plea and dismissed the other counts and special allegations.
Almost a year-and-a-half later, the court sentenced Chung. At his sentencing hearing, a Cantonese interpreter assisted Chung. However, in English, Chung stated: "First, thank you for this chance to speak. Please bear with me. I am working on my English. [¶] I would like to apologize to my victim and her family. I acknowledge I have made a very poor decision that has affected not only her, my victim and her family, but also the community, as well as my daughter and my family life. I am truly remorseful and detest the crime I have committed and the suffering which it has caused everyone involved." Chung stated, "[t]hrough Five Keys charter school I learned the English language, [and have] gotten my diploma." Chung asked "for mercy when passing down my sentencing. And I ask your Honor to please consider a lesser sentence or half time. It's very important to me that I stay a positive support in my daughter['s] life. All I ask is a chance to prove I am a changed man who only want[s] to be a productive member of society."
The court responded "the things you're doing are positive, and you should be commended for that. However, this was a negotiated disposition with the District Attorney's Office, and so I don't feel it would be appropriate for me to change that disposition." Based on Chung's plea, the court sentenced him to 18 years in prison.
Chung, acting in pro per, filed a notice of appeal, indicating the appeal was "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." Chung also requested a certificate of probable cause. (§ 1237.5.) In the request, he stated, in English, "can I plea for mercy about my case, because most of [the] time I don't understan[d] between me and my Attorney, and the deal between my lawyer [and the] DA. I'm a refugee from Vietnam, please can I appeal my case and please can I have a Vietnamese interpreter please." The trial court denied Chung's request for a certificate of probable cause. Over six months later, Chung's appointed appellate counsel filed a petition for writ of mandate, which this court denied without prejudice. (Chung v. Superior Court (Jun. 28, 2016, A148654).)
DISCUSSION
In his opening brief, Chung contends "[b]y ordering that a Cantonese interpreter appear in lieu of the Vietnamese interpreter, . . . the trial court deprived [Chung] of his California Constitutional right to the assistance of an interpreter throughout the entirety of the proceedings. This was error requiring that the judgment be vacated and the matter remanded for resentencing." We requested supplemental briefing regarding whether Chung's appeal was a challenge to the plea's validity, and whether the appeal must be dismissed based on Chung's failure to obtain a certificate of probable cause. (§ 1237.5.) We conclude we must dismiss Chung's appeal.
I.
Chung Cannot Appeal the Decision to Replace His Vietnamese Interpreter with a
Cantonese Interpreter
Under section 1237.5, a defendant cannot appeal from a judgment of conviction following a guilty or no contest plea, unless he files with the trial court a statement "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and the trial court executes and files "a certificate of probable cause for such appeal with the clerk of the court." (§ 1237.5.) There is an exception to the certificate requirement when the appeal is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity." (Cal. Rules of Court, rule 8.304(b)(4).)
"In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).)
Here, Chung did not obtain a certificate of probable cause, and he claims his appeal "is limited to matters arising after the change of plea not affecting the validity of the plea." Yet Chung repeatedly challenges the court's decision to replace his Vietnamese interpreter with a Cantonese one, a decision made before his change-of-plea hearing. For example, Chung argues "[b]y ordering that the Cantonese interpreter be present at the remainder of [the] proceeding[s] in lieu of the Vietnamese interpreter . . . , the court deprived [Chung] of the right to an interpreter at the change of plea and sentencing hearings." According to Chung, "[b]ecause the right to a Vietnamese interpreter ordered by the court at the outset of the case was not personally waived by [Chung], and a stipulation by counsel can never in itself serve as a valid waiver of this right, the court's order that a Cantonese Interpreter be present at future case callings and consequent dismissal of the Vietnamese interpreter was error." These statements indicate Chung's appeal focuses on the decision to replace his Vietnamese interpreter with a Cantonese one, which is not a ground "that arose after entry of the plea." (Cal. Rules of Court, rule 8.304(b)(4).) Without a certificate of probable cause, Chung cannot appeal this decision.
II.
Chung Cannot Appeal the Lack of a Vietnamese Interpreter at the Sentencing Hearing
Chung attempts to limit his appeal to post-plea matters, by arguing that, if assisted by a Vietnamese interpreter, he could have persuaded the sentencing judge to allow him to withdraw his plea. But, at the sentencing hearing, the court simply imposed the sentence Chung agreed to as part of his plea bargain. On its face, then, his challenge is to the plea's validity. (See Panizzon, supra, 13 Cal.4th at p. 73 [where defendant was "in fact challenging the very sentence to which he agreed as part of the plea," then the challenge was "in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of section 1237.5."]; see People v. McKnight (1985) 171 Cal.App.3d 620, 624-625 [dismissing appeal that sought to argue for imposition of a sentence lower than the agreed-upon sentence because the substance of the appeal was a challenge to the validity of the guilty plea and appellant was denied a certificate of probable cause].)
In his supplemental letter brief, Chung attempts to salvage his appeal by arguing he "does not challenge the validity of his guilty plea, nor does he challenge the sentence imposed under the circumstances." Instead, he claims to challenge "the integrity of the sentencing hearing and the deprivation of . . . [his] federal due process rights in that context." Inconsistently, Chung states he does not intend to argue the sentence imposed was error, but also that the deprivation of his right to a Vietnamese interpreter at sentencing was not harmless beyond a reasonable doubt. In as much as Chung contends he was prejudiced by the lack of a Vietnamese interpreter at the sentencing hearing, his appeal can only be construed as a challenge to the validity of his plea bargain, in which he agreed to a sentence of 18 years in prison in exchange for the dismissal of multiple other charges.
Chung further contends a finding that the issue raised in this appeal is merely a challenge to the validity of the plea would render meaningless his entitlement to basic constitutional rights at sentencing. But here, as in Panizzon, supra, 13 Cal.4th at p. 78, "all the trial court did . . . was to sentence [Chung] in accordance with the previously entered plea." This is not, for example, a case where post-plea adversary hearings were necessary to determine the degree of the crime or the penalty imposed. (People v. Ward (1967) 66 Cal.2d 571, 575-576.) In such a case, a challenge to errors occurring in the post-plea proceedings does not require compliance with section 1237.5. (Ibid.)
Chung sought but failed to obtain a certificate of probable cause. His appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.