Opinion
B163481.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. HECTOR GUZMAN, Defendant and Appellant.
Antonio M. Zaldana, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Hector Guzman, aka Hector Robert Parada, appeals from a superior court order denying his motion to vacate judgment, or, in the alternative, writ of error coram nobis. Appellant contends that: (1) the court below erred in denying his motion because the trial court that took his no contest plea failed to comply with the exacting and mandatory language of Penal Code section 1016.5, subdivision (b), which requires a trial court to provide a defendant additional time to consider the appropriateness of a plea if the defendant makes a request; and (2) the recent changes in the immigration laws make the courts advisements inaccurate, and, therefore, vacating the judgment is the only appropriate remedy.
All further references to statutes are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
Appellant entered the United States in 1981 at the age of 11. He acquired temporary resident status on September 23, 1988, and lawful permanent resident status one year later.
The details of appellants stay in the United States are gleaned from his declaration in support of his motion.
On December 19, 1990, appellant was in court for a probation violation hearing after having allegedly committed a new offense. In response to appellants question ("What is going to happen right now?"), the prosecution informed appellant that he was either going to plead guilty, or the probation violation hearing would ensue. The court informed appellant that, during the hearing, witnesses would testify regarding appellants involvement in an apparent drive-by shooting. Victims would testify that they saw appellant in the car, and a police office would testify that he saw the muzzle flash emanating from the car. The court told appellant that if it found the allegations true, appellants probation would be revoked and he would be sentenced to four years in state prison on the probation violation. Also, his potential sentence on the new offense would be higher. The court ascertained that defense counsel had already informed appellant of these circumstances, and appellant confirmed that he understood what his attorney had explained.
Appellants counsel stated that they would proceed with the plea, and appellant answered "yeah" when the prosecutor asked him if he wanted to plead guilty. Appellant entered a plea of "no contest" to one count of assault with a firearm in violation of section 245, subdivision (a)(2). Appellant admitted the special allegation that great bodily injury was inflicted during commission of the offense pursuant to section 12022.7. Appellant refused to admit that a principal was armed in commission of the crime pursuant to section 12022, subdivision (a), and the prosecution acquiesced in not taking the admission on that allegation. In exchange for his plea, appellant, who was facing a maximum of 15 years in state prison, received a sentence of six years, which was ordered to run concurrently with a two-year sentence on his probation case.
According to his declaration, appellant has not suffered any more arrests or convictions. He eventually completed paralegal studies and works in a law firm.
On October 22, 2002, appellant filed a motion in superior court to vacate judgment, or, in the alternative, a writ of error coram nobis. According to appellants signed declaration accompanying the motion, dated October 16, 2002, he was "currently in immigration proceedings." The motion was heard and denied on November 20, 2002. Appellant filed a notice of appeal on November 26, 2002.
DISCUSSION
I. Motion to Vacate
A. Appellants Arguments
Appellant concedes that the trial court gave him the proper advisements before taking his plea. Appellant argues that the trial court failed to provide him with additional time to consider the appropriateness of the plea in light of the advisement, as mandated by section 1016.5, subdivision (b). Appellant claims that he discovered that his plea might have immigration consequences for the first time when he entered his no contest plea. It was for this reason, he maintains, that he decided to take his plea back. At a minimum, he argues, the trial court should have interpreted his repeated requests to withdraw his plea as a "request" pursuant to section 1016.5, subdivision (b), which requires the court to allow a defendant additional time to consider the appropriateness of the plea. Because the trial court denied appellant the additional time and violated section 1016.5, subdivision (b), the court below should have granted appellants motion to vacate judgment.
B. Standard of Review
The denial of a statutory postjudgment motion to vacate under section 1016.5 is an appealable order. (People v. Totari (2002) 28 Cal.4th 876, 886-887.) It is an "order made after judgment, affecting the substantial rights of the party" as provided in section 1237, subdivision (b). (People v. Totari, at p. 887.)
A trial courts ruling on a motion to vacate a plea is not disturbed on appeal absent an abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 999 P.2d 686 (Zamudio); People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
C. Relevant Authority
Section 1016.5, subdivision (a) requires that a defendant receive the following advisement prior to entering a plea of guilty or nolo contendere: "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."
Section 1016.5, subdivision (b) provides that "upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section." (Italics added.) In addition, if the defendant was not advised "as required by [section 1016.5] 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 defendants 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." ( § 1016.5, subd. (b).)
In order to prevail on a motion brought pursuant to section 1016.5, a defendant must establish: "(1) he or she was not properly advised of the immigration consequences as provided by [section 1016.5]; (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." (People v. Totari , supra, 28 Cal.4th at p. 884, citing Zamudio, supra, 23 Cal.4th at pp. 192, 199-200, and People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) With respect to prejudice, a defendant "must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised." (People v. Totari, supra, at p. 884, citing Zamudio, supra, at pp. 209-210.)
D. Court Properly Denied Motion to Vacate
We conclude the trial court properly denied appellants motion to vacate because he was fully advised of the immigration consequences of his plea, as he concedes, and he received extra time to think about his plea decision. Moreover, he has failed to show prejudice.
The record of appellants plea hearing reveals that appellants primary concern was ensuring that his guilty plea did not adversely affect his partner in crime. As the prosecutor began informing appellant of the charges and sentence, the following exchange occurred: "THE DEFENDANT: Yes. But can I ask a question? [P] [THE PROSECUTOR:] Yes. [P] THE DEFENDANT: Will this affect in any way the case my partner is fighting? [P] [THE PROSECUTOR:] The case what? [P] THE DEFENDANT: The case of the person I got arrested with, will it affect his case? [P] [THE PROSECUTOR:] Mr. Gonzalez? [P] THE DEFENDANT: Yeah. [P] [THE PROSECUTOR:] He is on his own on his case. [P] THE DEFENDANT: Will it be brought against him when he comes to court? [P] [THE PROSECUTOR:] No, this wont come up in court. [P] [DEFENSE COUNSEL:] This is not against him. You are not testifying against him. You are not helping him or anything else by pleading guilty in this case. It doesnt help him or hurt him. [P] THE COURT: Do you understand that? [P] THE DEFENDANT: Yes. [P] THE COURT: It has nothing to do with his case. You had probably better think about yourself. He is looking at a long time and so are you. Dont worry about your gang oath. [P] [THE PROSECUTOR:] His case is his problem. [P] THE DEFENDANT: That is what I mean, but he is telling me that he has a murder case, too; right? [P] [THE PROSECUTOR:] He does. He is in big trouble, so I think you should just worry about your own case as the judge says. [P] THE COURT: You are not testifying against him. No one is going to ask you to testify against him. [P] THE DEFENDANT: No, but it seems like I am turning States evidence because I am turning myself guilty. [P] THE COURT: It cant come up at the other trial. [P] [DEFENSE COUNSEL:] No, you are not doing it. [P] THE COURT: Do you want to worry about him? [P] THE DEFENDANT: No, I am not worried about him. I am worrying about myself. [P] [DEFENSE COUNSEL:] You are not ratting on him, [appellant], by doing what you are doing here. You are looking out for your own interest."
The prosecutor then began to explain the rights appellant was giving up; i.e., the right to remain silent and not incriminate himself; the right to a court or jury trial, and the right to confront and cross-examine witnesses. With respect to the latter, appellant asked if the witnesses would have to show up in court against his partner. The prosecutor told appellant that was not his problem, and appellant gave up that right. The prosecutor continued his explanation of appellants rights, explained the sentence appellant would receive, and informed appellant that if he was not a citizen of the United States, "this plea could result in deportation, denial of naturalization as a U.S. citizen or denial of entry into the United States. If you are a U.S. citizen, this has no effect on you. [P] Do you understand this?" Appellant answered, "Yes." Appellant made no further comment, and the prosecutor went on to confirm that no one had threatened appellant or made any other agreement with appellant. After completing the waivers, and ascertaining that the court was satisfied with the waivers, the prosecutor took appellants plea of no contest to the section 245, subdivision (a) charge and the admission of the great bodily injury allegation. When asked if he admitted that a principal was armed with a firearm during commission of the offense, the following exchange occurred:
"THE DEFENDANT: I cant admit to that. That would be like turning States evidence. [P] [DEFENSE COUNSEL:] No, it is not. It is not admissible. [P] [THE PROSECUTOR:] It cant be used against him. [P] [DEFENSE COUNSEL:] It cant be used against him. [P] [THE PROSECUTOR:] This is your own case. That cant be used against him. [P] [DEFENSE COUNSEL:] It is not evidence against him. You just admit somebody was armed, thats all. It doesnt say who was armed, just somebody was armed. [P] [THE PROSECUTOR:] It says, It is further alleged in the commission of the offense a principal . . . . [P] (Conference between [defense counsel] and the defendant, not reported.) [P] [THE PROSECUTOR:] Do you admit that a principal was armed in the commission of this offense? [P] THE DEFENDANT: No contest. [P] [THE PROSECUTOR:] You have to either admit or deny that. [P] To take this plea you have to admit that. [P] THE DEFENDANT: I cant admit to that. [P] [DEFENSE COUNSEL:] Why not? [P] THE DEFENDANT: Because I admit I wasnt armed. I already admit to that. [P] [THE PROSECUTOR:] You have to admit that a principal was armed. [P] THE DEFENDANT: No, I cant admit to that because he has nothing to do with this case, you said. [P] [DEFENSE COUNSEL:] This has nothing to do with you. [P] [THE PROSECUTOR:] He is not charged with that. He is charged with possessing the gun himself. He has a whole different charge against him. This charge is as to you. This charge doesnt apply to him. [P] THE DEFENDANT: That is what I mean. I will admit to myself not having a gun. [P] [THE PROSECUTOR:] No, you have to admit that a principal was armed. [P] THE DEFENDANT: I cant admit to that. [P] [THE PROSECUTOR:] Then what we can do is give him the mid term of three years and three years on the G.B.I. We just wont take the admission on that. [P] [DEFENSE COUNSEL:] Okay. [P] [THE PROSECUTOR:] You deny that; is that correct? [P] THE DEFENDANT: Yes. [P] [THE PROSECUTOR:] Counsel join in the waiver, concur in the plea and stipulate to a factual basis? [P] [DEFENSE COUNSEL:] Counsel joins, stipulates to a factual basis. [P] THE COURT: The court finds the defendant knowingly, intelligently and expressly waives his constitutional rights to a court or jury trial, the right to remain silent, the right to confront and cross-examine witnesses against you — [P] THE DEFENDANT: I take my plea back. [P] THE COURT: The court finds that you understand the nature of the offense, the consequences of your plea — [P] THE DEFENDANT: I take my plea back. [P] THE COURT: — that you freely and voluntarily enter the plea. The court accepts the plea and all admissions. [P] What do you want to do? [P] THE DEFENDANT: I want to take my plea back. [P] [DEFENSE COUNSEL:] Why? [P] THE DEFENDANT: I wish to take my plea back. [P] THE COURT: Talk to this young man, will you. I am tired of fooling with him. [P] (Conference between [defense counsel] and the defendant, not reported.) [P] (Pause in the proceedings.) [P] THE COURT: What is our status here? [P] [DEFENSE COUNSEL:] We are going to proceed with the plea, Your Honor. [P] THE COURT: With the plea? [P] [DEFENSE COUNSEL:] Yes. [P] [THE PROSECUTOR:] Mr. Guzman — [P] THE COURT: Do you understand what is going on here? [P] Off the record. [P] (Discussion off the record.) [P] [THE PROSECUTOR:] So, Mr. Guzman, you do plead guilty; is that correct? [P] THE DEFENDANT: Yes. [P] [THE PROSECUTOR:] Counsel join in the waivers, concur in the plea and stipulate to a factual basis? [P] [DEFENSE COUNSEL:] Yes. [P] THE COURT: The court has already made the findings. [P] The court has read all the reports, talked to counsel. [P] Counsel, pursuant to the plea agreement defendant has pled guilty to Count I; is that right? [P] [DEFENSE COUNSEL:] Thats correct. [P] [THE PROSECUTOR:] Yes, and admitted the special allegation for G.B.I."
The record thus clearly shows that appellant made no "request" for additional time to consider the appropriateness of the plea with respect to the advisement regarding possible immigration consequences. The taking of the plea was interrupted more than once so that appellant could speak with his attorney. Appellant asked numerous questions during the taking of the plea, but voiced no concern at all when he heard the advisement mandated by section 1016.5. The court did not refuse to allow appellant to "take back" his plea, but rather asked his attorney to speak with him. After conferring with his attorney, appellant decided to go ahead with his plea. Appellants contention that he made a request to reconsider his plea in light of the possible immigration consequences is not supported by the record, and the trial court did not abuse its discretion in denying his motion to vacate on this ground.
In any event, appellant must show that he suffered prejudice; i.e., that he would not have pleaded guilty or nolo contendere had he been given another opportunity to reconsider his plea. (Zamudio , supra, 23 Cal.4th at pp. 192, 199-200, 209.) The issue of prejudice is a factual question for the trial court. (Ibid.) We agree with the court below, which found that appellant had failed to establish prejudice.
In his declaration, appellant states that he "was unsure about entering a plea of guilty once the Judge reiterated" his constitutional rights. He claims that, "once the Judge started reminding me of the previous advisements, I started to really have doubts about entering a plea of guilty." He states that, when the judge told his attorney to talk to him because he was "tired of fooling with [him]," appellant felt obligated to enter a plea of guilty. He asserts that, if the judge had given him an opportunity to consider the appropriateness of his plea pursuant to section 1016.5, subdivision (b), he would not have entered a guilty plea.
A defendants claim of prejudice resulting from accepting or declining a plea agreement must be corroborated by objective evidence in the record. (In re Resendiz (2001) 25 Cal.4th 230, 253 (Resendiz); In re Alvernaz (1992) 2 Cal.4th 924, 938-940, 830 P.2d 747.) Here the objective indicators point the other way. As noted previously, appellant was given an opportunity to speak to his attorney after he stated several times that he wished to take back his plea. After conferring with his attorney, appellant decided to plead nolo contendere. If appellant had not pleaded guilty, he would have faced a probation violation hearing at which witnesses would place him in a car from which shots were fired. The prosecutor was prepared to then file charges in a new case.
We conclude there is no reasonable probability that appellant would have declined the plea bargain and chosen to undergo a probation violation hearing, for which the burden of proof is a mere preponderance of the evidence (People v. McGavock (1999) 69 Cal.App.4th 332, 337), and then a trial at which eyewitnesses would testify. Appellant was informed that he faced a sentence of 15 years in state prison. He was also told that, with the six-year plea bargain and the concurrent probation violation term, he would serve a little more than one and a half years. The difference between the terms of the plea bargain and the probable consequences of proceeding to trial is one of the objective factors to consider. (Resendiz , supra, 25 Cal.4th at p. 253.) We conclude appellant suffered no prejudice, and his claim fails.
II. Petition for Writ of Error Coram Nobis
A. Appellants Argument
Appellants petition for a writ of error coram nobis is founded on his assertion that retroactive changes in immigration law have rendered the language of the advisement prescribed by section 1016.5 inadequate. Appellant argues that the recent changes in the immigration laws make his removal an absolute certainty. These recent changes, he contends, run afoul of the intent of inherent fairness as described by the Legislature in enacting section 1016.5. Since the intent of the Legislature was not fulfilled, the plea should have been set aside below.
Federal immigration law generally refers to deportation as "removal." (Resendiz, supra, 25 Cal.4th at p. 236, fn. 1.)
Appellant cites federal immigration law requiring mandatory removal and denying him any form of relief because he was convicted of an aggravated felony. (8 U.S.C. §§ 1182(h)(2), 1229a(a) & (b), 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i).) An aggravated felony is defined as a crime of violence for which the prison term is at least one year. (8 U.S.C. § 1101(a)(43)(F).)
The legislative purpose behind section 1016.5 is clearly stated in subdivision (d): "The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea."
Section 1016.5, subdivision (d) provides that it "is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendants counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction."
B. Standard of Review
A trial courts denial of a petition for writ of error coram nobis is reviewed for abuse of discretion. (People v. Dubon , supra, 90 Cal.App.4th at p. 951.) A reviewing court must initially determine whether a defendant has made a prima facie showing of merit, and whether the petition raises issues that were, or could have been, raised in other proceedings. If a defendant fails to overcome these hurdles, the reviewing court may summarily dismiss the appeal. (People v. Totari, supra, 28 Cal.4th at p. 885, fn. 4; People v. Dubon, supra, at p. 950.)
C. Relevant Authority
"A writ of coram nobis is generally used to bring factual errors or omissions to the courts attention. [Citation.] The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not represented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.] [Citations.]" (People v. Ibanez (1999) 76 Cal.App.4th 537, 544-545; People v. Gallardo (2000) 77 Cal.App.4th 971, 987.)
D. No Prima Facie Case Shown
We disagree with appellants assertions and conclude he fails to establish a prima facie showing of merit. The language of the advisement, which warns of three types of immigration consequences that "may" result from the plea, was accurate at the time of appellants plea. Trial courts are not required to be prescient and give advisements regarding future changes in the law. Therefore, there was no error of fact that existed at the time of the plea and that was not presented to the trial court.
Moreover, the advisement remains accurate. It is true that the immigration laws have become "much more severe." (Zamudio, supra, 23 Cal.4th at p. 206.) That criminal convictions "may have dire consequences under federal immigration law [citation] and that such consequences are material matters [citation] for noncitizen defendants faced with pleading decisions" has long been recognized by the California Supreme Court. (Resendiz, supra, 25 Cal.4th at p. 250.) It was this recognition that prompted the mandatory advisement found in section 1016.5. The consequences remain dire, and the advisement given by the court fully warned appellant of what he might face in the future. Moreover, as noted in Resendiz, "the deportation consequences of a conviction are still not inexorable, in that deportation can be instituted only "upon the order of the Attorney General" (8 U.S.C. § 1227(a)) of the United States, who retains discretion not to institute such proceedings." (Resendiz, supra, at pp. 242-243.) Although a noncitizen defendants chances of facing negative immigration consequences may have increased, the warning prescribed by section 1016.5 has not been rendered inaccurate. Appellants appeal from the denial of his petition must be dismissed.
The Resendiz court thus affirmed that immigration consequences are collateral (as opposed to direct) consequences of a plea, but concluded that this did not bar appellants habeas corpus petition. (Resendiz, supra, 25 Cal.4th at pp. 242-243; see People v. Barella (1999) 20 Cal.4th 261, 270, 975 P.2d 37 [direct consequences are those that follow inexorably from the plea].)
DISPOSITION
The order denying appellants motion is affirmed; the appeal from denial of the alternative petition for writ of error coram nobis is dismissed.
We concur: BOREN, P.J., and ASHMANN-GERST, J.