Opinion
A144761
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE MARIN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C117716)
In 1993, as part of a negotiated disposition, defendant Jose Marin pleaded no contest to felony possession of marijuana for sale. Twenty-one years later, he moved to vacate the conviction, arguing that at the time of the plea hearing he did not understand English well enough to understand the trial court's advisement of the plea's possible immigration consequences, which was made on the record in accordance with Penal Code section 1016.5. The motion was denied, and defendant timely appealed. We will affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We draw our summary of the facts from the police report that defendant submitted to the trial court with the motion to vacate his conviction. In September 1993, an Oakland police officer was a passenger in a police patrol car when he noticed that defendant, who was not wearing a seatbelt, was driving a car that had a cracked windshield and no front license plate. The officer made a traffic stop, and defendant said his driver's license had been suspended. While defendant was in his car talking to the police officer, the officer noticed a strong odor of marijuana coming from the defendant's car and noticed that the vehicle identification number (VIN) on the dashboard was placed upside down and the rivets appeared to have been tampered with.
The officer arrested defendant for driving with a suspended license and for driving in a vehicle with an altered VIN. The officer seated defendant in the back of the patrol car and then returned to defendant's car, lifted the passenger seat, and found a bag containing about a pound of what he suspected was marijuana. Defendant was then arrested for possession of marijuana for sale and transportation of marijuana. The officer admonished defendant, who responded, "I have nothing to say." Later, while the police officer was sitting in the patrol car, he asked the patrol car driver how much he thought the bag of marijuana weighed. From the back seat, defendant volunteered, "It's a pound man." Nothing in the police report suggests that defendant had any difficulty in understanding English.
The district attorney filed a complaint charging defendant with possessing marijuana for sale and with vehicle theft. At the plea hearing, defendant, who was represented by James Pandell, an assistant public defender, pleaded no contest to possessing marijuana for sale in exchange for a jail term of 65 days and dismissal of the count charging him with vehicle theft. The record does not reflect that any interpreter was present at the hearing, or that one had been requested. At the beginning of the hearing, the trial court judge, the Hon. Vernon A. Moore, told defendant that he could join his lawyer at the defense table. Defendant did so, and then defendant and his counsel engaged in a privileged discussion that was not transcribed. After that discussion, defendant's counsel said, "We had a little failure of communication this morning. Obviously he's gonna accept it." The district attorney then explained the plea agreement in detail to all present. Judge Moore asked defendant, "Mr. Marin, did you hear the plea and sentence agreement just recited by [the district attorney]?" Defendant responded, "Yes, sir." The judge continued, "And you discussed that plea and sentence agreement with your lawyer?" to which defendant nodded his head. The judge then inquired, "Do you understand it?" to which defendant responded, "Yeah." The judge said, "You and your lawyer seemed to have a difference of opinion a few moments ago. Do you agree to abide, that is to say do you agree to honor the terms and conditions of this plea and sentence agreement." Defendant nodded his head; the judge asked, "Yes?" and defendant responded, "Yes." Defendant's counsel then interjected, "It wasn't a difference of opinion, to clarify the record, Judge. It was, uh, the repeating of a request that I answered for him this morning, and I showed a little bit of impatience with him."
The Reporter's Transcript indicates that after the judge told defendant he could join his lawyer, defendant "(Complies with request)" and there was a "(Privileged off-the-record discussion between Mr. Pandell and Defendant Marin at defense table.)"
Before accepting the plea, Judge Moore examined defendant at length, asking additional questions about the terms and consequences of the plea and probation, to which defendant answered by saying, "Yes," "Yeah," or "No," as appropriate, or by shaking or nodding his head. During the plea colloquy, Judge Moore said, "If you are not a citizen of the United States, your plea of no contest today can have one or more of the following consequences: [¶] You could be deported, you could be denied citizenship, or you could be denied re-entry to the United States after a temporary absence. [¶] Knowing of those immigration and naturalization service consequences, do you still want to plead no contest?" In response, defendant nodded his head.
When Judge Moore asked, "To a charge of a violation of Section 11359 of the Health and Safety Code of California, the possession of marijuana for sale, how do you plead?" defendant responded, "No contest." Judge Moore stated on the record that he found that defendant had been fully advised of his "pertinent statutory and constitutional rights, that he understands those rights, and that he has knowingly, intelligently, freely and voluntarily given them up," and that "the plea of no contest was entered knowingly, intelligently, freely and voluntarily."
In October 1993, defendant was sentenced to 65 days in county jail with 65 days' credit for time served, and was placed on probation for three years.
In September 2014, defendant, representing himself, filed a motion to vacate the judgment, relying on section 1016.5. The motion was not supported by any declarations, but was accompanied by copies of some court filings, a police report, and transcripts of the plea hearing and sentencing hearing. In the petition, defendant states that he is in deportation proceedings, that he is married to a United States citizen and has two daughters, age 10 and 14, who depend on his support. He states that his first language is Spanish, and that at the time of the plea hearing "he had a limited understanding of English language, let alone understanding legal English both in vocabulary and syntax."
Defendant is represented by counsel in this appeal.
The trial court judge, the Hon. Jeffrey Horner, ruled on defendant's motion to vacate the judgment without holding a hearing. In a thorough written order denying the motion, Judge Horner explained, "The crux of [defendant's] claim is . . . that he did not understand [the advisement concerning immigration consequences] because he is a native Spanish speaker. . . . [¶] [He] does not allege in his Motion (no declaration in support of the Motion was submitted) that he did not understand English in 1993, at the time of the change of plea. Instead, he claims that his English is limited in 'vocabulary and syntax.' A review of the court file does not indicate the need for an interpreter. The police report does not indicate any language issues with [defendant] at the time of the arrest. There is no indication from reading the probation report that [defendant] had any difficulty communicating in English (no indication that an interpreter was used to communicated with [defendant]). At the time of his arrest, [defendant] had been in the United States for 10 years, since he was approximately ten years old. [Defendant] told the probation officer that he was born in Mexico, that he was not a citizen and was trying to obtain his green card. Thus, the record not only contradicts [defendant's] allegations about his need for an interpreter, and lack of understanding of the immigration admonishment, but also casts doubt to his credibility. On this record, [defendant] has not demonstrated that he did not understand the advisement given to him by the trial court."
The record on appeal does not include a copy of the probation report.
This appeal followed.
DISCUSSION
A. Applicable Law and Standard of Review
Section 1016.5 requires the court to "administer the following advisement on the record to the defendant" before accepting a plea of guilty or no contest: "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." (§ 1016.5, subd. (a).)
"[T]he legislative purpose of section 1016.5 is to ensure a defendant is advised of the immigration consequences of his plea and given an opportunity to consider them. So long as the advisements are given, the language of the advisements appears in the record for appellate consideration of their adequacy, and the trial court satisfies itself that the defendant understood the advisements and had an opportunity to discuss the consequences with counsel, the legislative purpose of section 1016.5 is met." (People v. Ramirez (1999) 71 Cal.App.4th 519, 522.) " 'Absent a record that the court provided the advisement required' by section 1016.5, subdivision (a), the defendant is 'presumed not to have received' it." (People v. Superior Court (Zamudio) 23 Cal.4th 183, 191 (Zamudio), quoting § 1016.5, subd. (b).)
If the court fails to provide the advisement required by section 1016.5, subdivision (a), "the court on defendant's motion, shall vacate the judgment and permit the defendant" to withdraw the plea and plead not guilty. (§ 1016.5, subd. (b).) A defendant seeking relief under section 1016.5 "must demonstrate that (1) the court taking the plea failed to advise the defendant of the immigration consequences as provided by section 1016.5, (2) as a consequence of conviction, the defendant actually faces one or more of the statutorily specified immigration consequences, and (3) the defendant was prejudiced by the court's failure to provide complete advisements." (People v. Chien (2008) 159 Cal.App.4th 1283, 1287 (Chien).)
Section 1016.5 does not specify a time limit for a defendant's motion to withdraw a plea. Defendant bears the burden of proving he exercised "reasonable diligence" in seeking relief. (People v. Totari (2003) 111 Cal.App.4th 1202, 1207-1208 (Totari).)
A criminal defendant who cannot understand English has a right to an interpreter upon an affirmative showing of need. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453.) When there is evidence before the trial court showing that a defendant understood English, a decision denying the appointment of an interpreter will be upheld. (Id. at p. 1456.) It has long been established that " '[t]he question of the necessity of an interpreter, as distinguished from the question of whether one should be appointed when the necessity is clear, is a matter for judicial determination over which the trial court is permitted to exercise its discretion.' " (Id. at p. 1455-1456, quoting People v. Estany (1962) 210 Cal.App.2d 609, 611.) "The trial judge is in a unique position to evaluate the reactions and responses of the accused and to determine whether her or she does not require an interpreter in order to be adequately understood or in order to adequately understand the proceedings. This exercise of discretion should not be reversed unless there is a complete lack of any evidence in the record that the accused does understand English, thereby rendering the decision totally arbitrary." (Id. at p. 1456.)
We apply the abuse of discretion standard in reviewing a trial court's ruling on a section 1016.5 motion to withdraw a plea. (Zamudio, supra, 23 Cal.4th at p. 192; § 1016.5, subd. (c).) B. Analysis
Defendant advances several arguments for reversing the denial of his motion to withdraw his plea. Most of them rest on the premise that defendant did not understand English well enough at his plea hearing to understand Judge Moore's section 1016.5 advisements. Although defendant states several times in his opening brief on appeal that he did not understand the section 1016.5 advisement provided at his plea hearing, and although he asserts that "the record shows that [he] was not provided an interpreter when he needed one," he does not identify any evidence in the record that suggests he had any difficulty understanding English or needed an interpreter. Thus, defendant does not persuade us that Judge Horner abused his discretion when he concluded that defendant failed to demonstrate that he did not understand the section 1016.5 advisements Judge Moore provided at the plea hearing.
Defendant also argues unconvincingly that the trial court should have set a hearing on his motion to withdraw the plea "for further fact-finding" as to his proficiency in English at the time of the plea hearing. As defendant concedes, long-standing precedent establishes that there is no requirement that trial courts hold evidentiary hearings on section 1016.5 motions. Defendant cites no authority that suggests the trial court here abused its discretion in ruling on defendant's motion without a hearing.
At the plea hearing, defendant responded appropriately when Judge Moore told him in English that he could "join his lawyer." Defendant spoke with his lawyer, and then Judge Moore posed multiple questions in English to which defendant answered with "Yes, sir," "Yeah," "Yes," and nods of the head. On one occasion when defendant nodded his head in response to a question, he also said "Yes." On two other occasions, when defendant nodded his head and Judge Moore asked, "Yes?" defendant responded "Yes" or "Yeah." Then, when Judge Moore gave defendant the advisements required by section 1016.5 in English and asked defendant, in English, whether he understood them, defendant responded by nodding his head. Nothing in the record shows defendant had any difficulty in understanding the proceedings.
Defendant argues that he was "confus[ed] as to his plea," as reflected by "the failure of communication" and a "difference of opinion" between him and his attorney at the plea hearing. The record contradicts this statement. In fact, defendant's counsel denied Judge Moore's suggestion that there had been a difference of opinion between defendant and his counsel. Furthermore, there is no evidence in the record that the "failure of communication" that defendant's counsel mentioned and then described as his impatience with defendant repeating a request, involved language difficulties.
In ruling on defendant's motion to withdraw his plea, Judge Horner reviewed not only the transcript of the plea hearing, but also the police and probation reports. Nothing in those reports indicated any language issues or difficulty on the part of the police or the probation officer in communicating with defendant in English. In these circumstances Judge Horner did not abuse his discretion in concluding that defendant had not shown he did not understand the advisements that Judge Moore provided to him as required by section 1016.5.
In his opening brief on appeal, defendant asserts that "[h]e lived with his mother and his siblings, who were Spanish speakers," that he "only attended school up until the 9th grade," and that "[a]t the time of his criminal proceedings, [he] was working as a janitor." Defendant provides no citations to the record to support these assertions, and we disregard them. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; see also Cal. Rules of Court, rule 8.204(a)(1)(C).)
Accordingly, we are not persuaded by defendant's arguments that he "did not understand English well enough to be sufficiently aware of the relevant circumstances and consequences of his plea," that his "conviction must be vacated for violating . . . section 1016.5 because no interpreter translated the . . . advisements," and that "there is not a sufficient record to show that defendant was advised as required."
A defendant cannot prevail on a section 1016.5 motion unless he can show that he was not provided the statutorily required advisements. (See Chien, supra, 159 Cal.App.4th at p. 1287.) Having concluded that defendant did not make the required showing, Judge Horner did not need to consider whether defendant actually faced the immigration consequences specified in the advisement, or whether defendant was prejudiced, or whether he exercised reasonable diligence in bringing his motion. (See Ibid.; Totari, supra, 111 Cal.App.4th at pp. 1207-1208.) And because defendant has not shown that Judge Horner abused his discretion in reaching his conclusion, we need not reach defendant's appellate arguments on those issues.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.