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People v. Kaplan

California Court of Appeals, Fourth District, Second Division
Feb 7, 2011
No. E050420 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. RIF148727, Gordon R. Burkhart, Judge.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

MILLER J.

On February 11, 2009, the People charged defendant Kenneth Lyn Kaplan with one count of possession of cocaine (count 1-Health & Saf. Code, § 11350). On February 17, 2009, defendant entered a guilty plea. The signed plea agreement reflects that defendant was notified that if he was “not a citizen of the United States, [his] conviction 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.” Defendant initialed the blank line adjacent to the notification. Defendant additionally initialed a provision of the plea agreement reading that he “had adequate time to discuss with [his] attorney... the consequences of any guilty plea....” The court inquired of defendant whether he had gone over the plea form with his attorney. Defendant responded that he had. The court queried whether defendant understood the plea form and had personally signed it. Again, defendant replied in the affirmative. The court asked defendant if had any questions; defendant answered that he did not. The court found defendant eligible for Proposition 36 probation, and sentenced him to a three-year period of formal probation with terms and conditions including a requirement that he enroll in and complete a substance abuse program.

Proposition 36, entitled the “Substance Abuse and Crime Prevention Act of 2000, ” is intended to divert nonviolent drug offenders convicted of simple drug possession and drug use from incarceration into community-based substance abuse programs. (See People v. Canty (2004) 32 Cal.4th 1266, 1280-1281; Pen. Code, § 1210.1.) Proposition 36 requires a trial court to sentence a defendant convicted of nonviolent drug offenses to probation, provided there are no disqualifying conditions. The provisions of the proposition are codified in Penal Code sections 1210, 1210.1, and 3063.1, and Division 10.8, commencing with section 11999.4 of the Health and Safety Code. By its terms, Penal Code section 1210.1, subdivision (a) requires the court to grant probation with a drug treatment condition to any person who is convicted of a nonviolent drug possession offense, unless the person is ineligible.

On March 20, 2009, the People filed notice that the defendant was in violation of the terms of his probation requiring that he report to his probation officer, register as a drug offender, provide proof of enrollment in a substance abuse program, and actually participate in a drug abuse program. The court issued a bench warrant for defendant’s arrest. On March 26, 2009, after acknowledging that he had discussed the written violation of probation advisement form with his attorney, defendant admitted violating the terms of his probation. The court reinstated defendant on his original Proposition 36 probation terms.

On April 27, 2009, the People filed notice that defendant was, again, in violation of several terms of his probation: defendant had failed to provide proof of drug offender registration, had not reported to probation, had not reported for referral to a drug treatment program, and had not reported to court for a substance abuse program enrollment hearing. On October 16, 2009, defendant’s counsel filed a declaration indicating that defendant wished to withdraw his plea. On November 20, 2009, conflict counsel appeared on behalf of defendant for what was scheduled to be a hearing on defendant’s motion to withdraw the plea. Counsel noted that defendant had been in federal custody. Defendant requested permission to represent himself on the motion to withdraw the plea. The court granted the request, relieved conflict counsel, and ordered that defendant receive a copy of the reporter’s transcript of the hearing at which he entered his plea.

Defendant filed his written motion to withdraw the plea on February 5, 2010. Defendant contended that he was a Canadian citizen who had been residing in California continuously since 1998. He averred that he was “currently in the primary stages of immigration removal proceedings.” Defendant’s primary contention was that the motion to withdraw the plea should be granted because he “was not aware of the disast[]rous consequences of the plea.” He noted that he had been similarly advised that he “may” face deportation when he had previously been twice convicted of other offenses; on neither occasion had he been deported; therefore, the advisement that he “may” be deported was insufficient to put him on notice that he actually would be deported. Defendant stated that he had been taken into federal custody immediately upon his release from Riverside County custody, after entering his admission to violations of probation on March 26, 2009. He claimed to have informed his public defender of his federal immigration hold prior to entering his admission. Thus, he asserted that his counsel’s performance had been deficient both in failing to determine his immigration status prior to entry of the guilty plea and the immigration consequences prior to entry of his admission to the violations of probation. Defendant concluded that “the plea of guilty must be withdrawn....”

Nevertheless, the context of defendant’s motion in its entirety makes it clear that defendant was requesting both a withdrawal of his admission of the violations of his probation terms on March 26, 2009, and a withdrawal of the plea of guilty entered on February 17, 2009. Of course, had the court granted the latter, the former would have become moot.

On February 1, 2010, the People filed opposition to defendant’s motion. The People maintained that the motion was untimely because it had not been filed within the six-month window permitted by Penal Code section 1018. Moreover, the People noted that Penal Code section 1018 applies only to the withdrawal of guilty pleas, not the withdrawal of admissions to violations of probationary terms. Finally, the People argued that defendant had been adequately warned of the potential immigration consequences by virtue of his initialing of the provision in his plea agreement, expressly warning him of such.

At the hearing on the motion on February 5, 2010, defendant admitted that his then defense counsel did not know that he was not a United States citizen at the entry of his plea. It was not until his probation violation hearing on March 26, 2009, that he informed defense counsel of his immigration status. Nevertheless, counsel advised him to enter his admission regardless. The court denied defendant’s motion to withdraw the plea and reappointed the public defender to represent defendant in his subsequent resentencing. The court terminated defendant from Proposition 36 probation and granted defendant formal probation with a condition that he serve 120 days in jail. The court granted defendant 120 days of credit for time already served. The court ordered that defendant be retained in custody due to the immigration hold, and released to federal authorities.

On February 23, 2010, defendant filed a notice of appeal challenging the sentence or other matters occurring after the plea. Defendant also challenged the validity of the plea and requested the court issue a certificate of probable cause. In his statement in support of the issuance of a certificate of probable cause, defendant maintained that his counsel provided ineffective assistance in failing to determine defendant’s citizenship status prior to advising defendant to enter the plea; thus, defendant contended his plea was not entered with knowledge of the consequences of its entry, particularly as proceedings to remove him from the country subsequently ensued. The court denied his request.

Upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

We have now concluded our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

We concur: McKINSTER Acting P. J., RICHLI J.


Summaries of

People v. Kaplan

California Court of Appeals, Fourth District, Second Division
Feb 7, 2011
No. E050420 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Kaplan

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KENNETH LYN KAPLAN, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 7, 2011

Citations

No. E050420 (Cal. Ct. App. Feb. 7, 2011)