Opinion
D073489
10-05-2018
THE PEOPLE, Plaintiff and Respondent, v. BERTHA MAGALY JARQUIN, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S. White and Laura Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN204965) APPEAL from an order of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S. White and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from the denial of a motion to vacate a 2006 guilty plea pursuant to Penal Code section 1016.5. The motion was filed in September 2017; thus, no transcript of the original plea or sentencing was available, however, the written change of plea form was available. Following an evidentiary hearing, the trial court found the appellant had failed to establish a factual basis to vacate the conviction.
All further statutory references are to the Penal Code unless otherwise specified. --------
PROCEDURAL BACKGROUND
In January 2006, Bertha Magaly Jarquin pleaded guilty to one count of possessing a controlled substance for sale (Health & Saf. Code, § 11378). The remaining counts and another case were dismissed. Jarquin was granted probation subject to various terms and conditions.
In August 2015, Jarquin successfully moved to dismiss her conviction under section 1203.4. Apparently Jarquin was notified of deportation proceedings against her in 2015. In September 2017, Jarquin filed a motion to vacate her guilty plea under section 1016.5, contending she was not informed of the immigration consequences of her plea in 2005 and that she did not understand the proceeding due to language difficulties.
In October 2017, the trial court held an evidentiary hearing in which Jarquin and her former defense attorney testified. Thereafter, the trial court filed a written order denying the motion and stating reasons for the denial.
Jarquin appeals contending that a written admonition of immigration consequences is legally insufficient to satisfy section 1016.5, and all the cases holding the contrary were wrongly decided. We are satisfied that the absence of transcripts of the 2005 and 2006 oral proceedings does not require that the plea be vacated. In the present case the written change of plea form, and the testimony at the evidentiary hearing clearly demonstrate Jarquin was properly advised of the immigration consequences of her plea and, contrary to her testimony, she understood those consequences.
The facts of the underlying criminal offense are not relevant to the issues before us. Thus, we will not set forth the traditional statement of facts. We will discuss the evidence presented at the trial court's hearing on the motion to vacate the conviction.
DISCUSSION
The Evidentiary Hearing
Jarquin testified in her own behalf. She said she pleaded guilty in order to be released from custody, that she was not guilty, did not understand English and she was not told she would be deported if she pleaded guilty. She did admit she could speak English in 2005 and 2006.
Jarquin had a Spanish translator at the time she initialed and signed the change of plea form, but she did not read it because it was in English. Her attorney did not tell her she would be deported.
On cross-examination Jarquin admitted she initialed the form and recognized her signature. She admitted she read and understood the form. Ultimately Jarquin acknowledged she signed the change of plea form under the penalty of perjury and the form indicated she had read and understood it. She maintained, however that she actually did not read it.
The People called Jarquin's former defense counsel to testify. Counsel did not have a personal recollection of the case but acknowledged from the record that he did represent her at the time of the guilty plea. Counsel testified his practice in 2005 and 2006 and now was to take such time as necessary to make sure the client understood the plea process. He would not allow a client who was not a U.S. citizen to plead guilty to an aggravated felony, such as in this case, without making sure the client understood the immigration consequences.
B. The Trial Court's Ruling
The court took the matter under submission and invited further briefing. After further review the court issued a written decision denying the motion to vacate the guilty plea and stated the reasons for his decision.
The court found Jarquin's testimony to be inconsistent and ultimately concluded her testimony did not establish the assertions that she did not read or understand the change of plea form. The court rejected her assertion that she was not informed of the immigration consequences of her plea.
The court did find former defense counsel to be credible. The court concluded counsel did inform Jarquin of the immigration consequences of the plea and that she did understand the warnings contained in the change of plea form.
Having found Jarquin not credible, accepting the testimony of former defense counsel and the admonitions in the change of plea form, the court concluded Jarquin was fully informed of the immigration consequences of her plea. Separately, the court rejected the defense argument that a written explanation of immigration consequences could never satisfy section 1016.5. Relying on People v. Ramirez (1999) 71 Cal.App.4th 519 (Ramirez), the court concluded section 1016.5 had been complied with in the 2006 change of plea process. The court rejected the argument that only proof of oral advisement would suffice.
In short, the court found that Jarquin had failed to establish error or prejudice.
C. Legal Principles
Section 1016.5, subdivision (a) requires trial courts to give an admonition regarding immigration consequences to defendants before accepting a guilty or nolo contendere plea. The court must advise: "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." A defendant so warned may then wish to reconsider the proposed plea or engage in further negotiations. (People v. Martinez (2013) 57 Cal.4th 555, 562 (Martinez).)
The statute does not require the trial court to orally advise the defendant of the warning required by section 1016.5. Written admonition of the required information can suffice in the absence of an oral admonition. It is the information which must be given, not whether it is conveyed orally or in writing. (Ramirez, supra, 71 Cal.App.4th at p. 523; People v. Quesada (1991) 230 Cal.App.3d 525, 536.). Such information may also be given by counsel, as long as it is established that the defendant was properly informed of the immigration consequences prior to entering the plea. (Id. at pp. 535-536.)
Where a defendant establishes she was not informed of the consequences or could not understand those consequences the defendant may seek to vacate the guilty plea. (Martinez, supra, 57 Cal.4th at pp. 562-565.) In bringing a motion to vacate the plea under section 1016.5, the defendant has the burden to establish prejudice. She must show she would not have entered the guilty plea if she had been properly advised. (Martinez, supra, at pp. 564, 567.)
We review the trial court's ruling on a motion to vacate under section 1016.5 under the abuse of discretion standard. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192; People v. Arendiz (2016) 247 Cal.App.4th 613, 617.)
D. Analysis
Jarquin's principal argument on appeal is that the trial court must orally advise defendants of the immigration consequences of the proposed plea. Failing to have a record of such admonition Jarquin argues we must reverse the trial court's decision. Jarquin recognizes case law is to the contrary. She simply argues such cases were wrongly decided. We disagree. We believe all the cases we have cited recognize the issue is whether a defendant was properly advised prior to the plea. Written admonitions, supplemented by advice from counsel, as in this case are sufficient to accomplish the purposes of section 1016.5 to make sure non-citizens are aware of immigration consequences of their pleas, before they are entered. We will follow existing case law and find the absence of a record of oral admonition by the trial court does not compel granting a motion to vacate the plea.
This case illustrates the problem with the bright-line rule espoused by Jarquin. She did not appeal her conviction and sentence. Her 2006 plea was not a problem until the immigration authorities contacted her in 2015, nine years after the plea. She then waited two more years before raising the section 1016.5 issue. By that time there were no transcripts of oral proceedings available. Under Jarquin's proposed analysis the defendant would automatically be entitled to vacate her plea, notwithstanding valid evidence of compliance with the statutory duty to inform her of immigration consequences. We decline to adopt such proposed rule.
Finally, Jarquin has failed to establish prejudice. The trial court did not credit her testimony, which was inconsistent in many respects. The court did credit the testimony of former defense counsel and concluded Jarquin was properly advised of the immigration consequences as set forth in the change of plea form, which she signed under penalty of perjury. The court was also satisfied that counsel also properly advised Jarquin and that she has failed to carry her burden of showing she would not have pleaded guilty if she had been properly advised. The trial court did not abuse its discretion when it denied Jarquin's motion to vacate her guilty plea.
DISPOSITION
The order denying Jarquin's motion to vacate her guilty plea under section 1016.5 is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. NARES, J.