Opinion
E067907
03-23-2018
THE PEOPLE, Plaintiff and Appellant, v. JUAN PABLO MUNOZ MARQUEZ, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Samara Silverman and Kirsten Seebart, Deputy District Attorneys, for Plaintiff and Appellant. Randall Conner, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF119660) OPINION APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Reversed. Michael A. Hestrin, District Attorney, and Samara Silverman and Kirsten Seebart, Deputy District Attorneys, for Plaintiff and Appellant. Randall Conner, under appointment by the Court of Appeal, for Defendant and Respondent.
On January 24, 2005, defendant and respondent, Juan Pablo Munoz Marquez, pled guilty to felony possession of cocaine (count 1; Health & Saf. Code, § 11350, subd. (a)) and misdemeanor driving with a blood-alcohol concentration of 0.08 percent or greater (count 3; Veh. Code, § 23152, subd. (b)). On December 9, 2016, defendant filed a motion to vacate the judgment pursuant to Penal Code section 1016.5, which the court granted. On appeal, the People contend the court abused its discretion in granting defendant's motion. We reverse.
I. FACTUAL AND PROCEDURAL HISTORY
On October 5, 2004, the People charged defendant by felony complaint with possession of cocaine (count 1; Health & Saf. Code, § 11350, subd. (a)), misdemeanor driving while under the influence (count 2; Veh. Code, § 23152, subd. (a)), misdemeanor driving with a blood-alcohol concentration of 0.08 percent or greater (count 3; Veh. Code, § 23152, subd. (b)), misdemeanor driving without a valid driver's license (count 4; Veh. Code, § 12500, subd. (a)), and the infraction of failing to carry vehicle insurance (count 5; Veh. Code, § 16020, subd. (a)).
On January 24, 2005, defendant pled guilty as recounted above. In return for his plea and as part of his plea agreement, the court dismissed the remaining counts on the People's motion and sentenced defendant to 36 months of probation. On July 19, 2007, defendant was alleged to be in violation of a term of his probation. On August 31, 2007, the court ordered defendant's probation revoked and issued a bench warrant for his arrest. On May 10, 2016, the court recalled the bench warrant upon defendant's appearance in court; the court released defendant on his own recognizance.
On December 9, 2016, defendant filed a motion pursuant to Penal Code section 1016.5 requesting the court to vacate his conviction on the basis that he was not advised of the potential immigration consequences of his plea. Defendant declared he was a native of Mexico who came to the United States in 1999 on a visa. He now wished to become a lawful permanent resident, but was ineligible due to his felony conviction. Defendant declared that if he had "been advised that I would be inadmissible due to this charge, I would not have pleaded [guilty]."
All further statutory references are to the Penal Code unless otherwise indicated. --------
On January 25, 2017, the People filed opposition to defendant's motion. The People noted that the court reporter had destroyed her notes of the plea hearing, so a transcript of that hearing could not be produced. Nevertheless, the People contended defendant was expressly informed of the immigration consequences of his plea; defendant had initialed the provision of his plea agreement specifically warning him of those consequences. The People further argued defendant's motion was untimely and he had failed to demonstrate any prejudice even if he was not properly advised of the immigration consequences of his plea. After argument at the hearing on February 1, 2017, the court granted defendant's motion based upon its finding that, pursuant to Proposition 47, defendant's felony offense was now a misdemeanor.
II. DISCUSSION
The People contend that the court abused its discretion in granting defendant's motion on improper criteria. We agree.
"Penal Code section 1016.5 requires that, before accepting a plea of guilty or nolo contendere to any criminal offense, the trial court must advise the defendant that if he or she is not a United States citizen, conviction of the offense may result in deportation, exclusion from admission to the United States, or denial of naturalization. The statute allows the defendant to move to vacate the judgment if the trial court fails to give the required advisements." (People v. Totari (2002) 28 Cal.4th 876, 879, fn. omitted.) "[A] motion to vacate a judgment under section 1016.5 may be brought in the trial court after judgment has been imposed." (Ibid.)
"To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (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. [Citations.] On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. [Citation.] Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. [Citation.]" (People v. Totari, supra, 28 Cal.4th at p. 884.) "Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement." (§ 1016.5, subd. (b).)
"The advisement need not be in the statutory language, and substantial compliance is all that is required, 'as long as the defendant is specifically advised of all three separate immigration consequences of his plea.' [Citation.]" (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Soriano (1987) 194 Cal.App.3d 1470, 1475.) Indeed, the court is not obligated to verbally advise defendant of the potential immigration consequences of a guilty plea. A validly executed plea agreement that adequately advises defendant of possible immigration consequences from defendant's plea is sufficient advisement to comply with statutory requirements. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521-523; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175 ["A court 'may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment.'"].) We review a court's decision on a motion pursuant to section 1016.5 for abuse of discretion. (People v. Arendtsz (2016) 247 Cal.App.4th 613, 617.)
Here, defendant initialed a provision of his plea agreement reading: "If I am not a citizen of the United States, I understand that this 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 signed the plea agreement reflecting: "I declare under penalty of perjury that the initials that appear above are my own, and that I have read and understand each statement that I have initialed." (Underlining omitted.) Defense counsel signed the plea agreement reflecting: "I am the attorney for the above named defendant. I am satisfied that (1) the defendant understands his/her constitutional rights and understand that a guilty plea would be a waiver of these rights; (2) that [t]he defendant has had an adequate opportunity to discuss [his] case with me, including any defenses [he] may have to the charges; (3) that the defendant understands the consequences of [his] guilty plea. Furthermore, I join in the decision of the defendant to enter a guilty plea at this time." The interpreter signed the agreement indicating: "Having been duly sworn, I have truly translated this form to the defendant in the Spanish language. The defendant has stated that [he] fully understood the contents of the form prior to signing."
Finally, the minute order reflects: "Defendant advised of charges and consequences of [his] plea . . . ." "Court finds def[endant] knows and understands constitutional rights, nature of charges and consequences of plea." Thus, defendant was informed of the immigration consequences of his plea, he initialed and signed provisions indicating he understood those consequences, his counsel signed the agreement reflecting those consequences had been explained to and were understood by defendant, his interpreter signed the agreement reflecting defendant understood the entirety of the plea agreement, and the court expressly indicated it had found defendant understood the consequences of his plea. Therefore, there was no basis for the court to find that defendant had not been advised of the immigration consequences of his plea and it abused its discretion in granting defendant's motion.
Indeed, the court rendered a factual finding that defendant had been advised of the immigration consequences of his plea. The court noted: "This is a motion to vacate a judgment because of, how it happens, people don't realize that even though we tell them, they don't realize it, they might actually get deported. This is one of those guys." The court further explained: "[W]e always ask them, 'Did somebody explain this to you? Did you go over this with your attorney?' And they always say yes or we don't take the plea. However, so in general, this motion would not be successful because it was explained to him by this attorney, and he admitted that on the record." Thus, the court expressly found defendant had been advised of the immigration consequences of his plea. Nonetheless, the court granted the motion even after rendering a factual finding which required the court to deny the motion. This was an abuse of discretion because the court acted outside the bounds of reason under the applicable law and relevant facts. (People v. Johnson (2015) 61 Cal.4th 734, 750.)
Defendant contends the court did not issue a factual finding that defendant specifically was advised of the immigration consequences of his plea because it used the words "in general." Thus, defendant maintains the court was merely making a general observation; the court was not making any specific finding as to defendant. We disagree. Although the court did make a general observation as to the normal practice of the court, that observation also included language specific to defendant. The court noted that defendant was "one of those guys" who had been explained the immigration consequences of his plea, but who did not realize he could get deported until it was actually happening. The court further observed defendant's motion to vacate would not be successful under the applicable law because the immigration consequences were explained to defendant by his attorney and defendant admitted as much on the record. Thus, the record reflects specific findings as to defendant that he had been explained the immigration consequences of his plea.
Moreover, the court's ruling and reasoning are complicated by its incorporation of the law with respect to rulings on section 1170.18 petitions, which should have been regarded as completely irrelevant to its ruling on the section 1016.5 motion. The court never made a finding that defendant had not been advised of the immigration consequences of his plea. Rather, the court reasoned: "But this has an added feature that we don't usually get in these cases. And that is the crime he pled to has been made by law a misdemeanor. And when he pled, he pled to a felony, it was pled as a felony. And that's a wrinkle, that's a new wrinkle. That's one that wasn't anticipated by any party. And so for that reason, I'm granting the motion."
The People inquired: "So the Court is granting the motion as relates to immigration consequences?" The court responded: "Correct. Because even the judge didn't know something that changed later, and that this crime is now a misdemeanor. And therefore I'm granting the motion, and he's back at square one." This is a non sequitur, because the court was not granting the motion because defendant had not been advised of the immigration consequences of his plea. Rather, the court granted the motion because it assumed Proposition 47 had changed defendant's conviction from a felony offense to a misdemeanor, an irrelevant analysis with respect to ruling on a section 1016.5 motion.
The People further inquired: "I'm just looking for a little clarification. [¶] . . . [¶] . . . Because if that was the case, then every single defendant that pled guilty for decades as it relates to those being felony charges would then have the ability to withdraw their plea because they weren't advised correctly. [¶] I think in my mind, we have to separate these two thoughts into two sides. One being the immigration consequences which he should have—he was advised. He signed the form. That should be denied. [¶] But as far as, you know, whether or not it's a misdemeanor or felony, that's a separate issue." The People noted: "What I think the proper course of action is to deny it as it relates to the immigration consequences. If they want to make a separate motion to reduce it to a misdemeanor pursuant to [section] 1170[.18]" "[t]hey can make that. And that's the proper way to go. But as far as granting a motion to bring in the case to start anew is not the proper course of action."
The court responded: "This is in the nature of a[] [Penal Code section] 1170.18 [petition]. It's similar to that analogy where people in custody now for [Health and Safety Code section] 11350 [offenses] may petition, make it a misdemeanor." "I've heard about a hundred of these, and this is only the second one I've granted. I'm not worried that we're getting carried away. So I've granted the motion. Either you can handle it in misdemeanor court or you file an appeal. Whichever one you feel is the best use of taxpayer's money."
The People's proposed course of action is precisely the one the court should have taken. First, the court essentially ruled that a motion to vacate a plea based upon a failure to advise a defendant of the immigration consequences of the plea should always be granted, regardless of whether the defendant was advised of the immigration consequences of the plea, so long as the offense for which the defendant was convicted qualifies for reduction from a felony to a misdemeanor pursuant to section 1170.18. This is not only factually erroneous, it finds no support anywhere in the law. Second, section 1170.18 only permits a reduction or reclassification of a qualifying offense from a felony to a misdemeanor; it does not permit vacation of the judgment.
Third, the court's order granting defendant's motion not only vacated the judgment with respect to the felony offense for which defendant could have sought reclassification pursuant to section 1170.18, it also vacated judgment on the other offense for which defendant stood convicted. This is similarly, legally impermissible. Fourth, a defendant seeking section 1170.18 relief bears the burden of proof to show eligibility for reclassification. (People v. Sherow (2015) 239 Cal.App.4th 875, 880.) Here, defendant did not even file a petition seeking relief pursuant to section 1170.18, let alone satisfy his burden of proof of showing eligibility. The court abused its discretion in granting defendant's section 1016.5 motion.
III. DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.