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People v. Quintanilla

California Court of Appeals, Second District, Third Division
Apr 16, 2009
No. B208557 (Cal. Ct. App. Apr. 16, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. A769930 C.H. Rehm, Judge.

Edgardo Garcia for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.


KLEIN, P. J.

Oscar Quintanilla appeals from the denial of a motion brought under Penal Code section 1016.5 to vacate his plea of guilty to possession for sale of marijuana (Health & Saf. Code, § 11359) entered in 1985 on the ground the trial court failed to advise him of the potential immigration consequences of pleading guilty. The trial court agreed Quintanilla was not properly advised of the immigration consequences of the plea but found Quintanilla failed to demonstrate a reasonable probability that, had proper advisements been given, he would not have entered the plea. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 (Zamudio).)

We affirm the trial court’s denial of the motion.

FACTS AND PROCEDURAL BACKGROUND

A criminal complaint filed August 23, 1985, alleged Quintanilla possessed marijuana for the purpose of sale. On September 19, 1985, pursuant to a plea bargain, Quintanilla entered a guilty plea and was placed on probation for two years on condition he serve 90 days in jail. In 1988, Quintanilla was found to be in violation of probation and was ordered to serve 180 days in the county jail, with probation to terminate upon his release.

On March 21, 2008, Quintanilla filed a motion to vacate the 1985 judgment on the ground he was not advised of the immigration consequences of his guilty plea as required by Penal Code section 1016.5. The motion noted the only mention in the court file to the immigration consequences of the plea was a reference in the minute order dated September 19, 1985, which states: “If deported, not to reenter except on a legal basis.” Quintanilla argued this advisement did not comply with section 1016.5.

Subsequent undesignated statutory references are to the Penal Code.

The motion asserted Quintanilla is a citizen of El Salvador who has resided in this country since 1982. Quintanilla has been employed at his present position since 2001, he is married to a U.S. citizen and their three children, ages 18, 17 and 15 years, are U.S. citizens. Quintanilla declared he has been active in the community and his church and, although he once had a problem with illegal substances, he now resides with his family in a home they have purchased.

Quintanilla stated the Executive Office for Immigration Review is attempting to deport Quintanilla as a result of the 1985 conviction. Quintanilla indicated his only hope to remain in this country was based on vacating this conviction, which was expunged after Quintanilla successfully completed probation. Quintanilla’s only other criminal offense, a 1998 conviction of simple possession of a controlled substance, will not cause his deportation if it his only criminal offense.

Quintanilla asserted that, had he been aware of the immigration consequences of the plea, he would have insisted on a different plea bargain or would have taken the case to trial to avoid “losing my home, my job, my friends and my life that I had been able to build for myself.”

At the first hearing on the motion to vacate, the People conceded they could not prove Quintanilla received a complete admonition and requested a continuance to locate the prosecutor’s file, which might contain a reporter’s transcript of the change of plea. The trial court granted the request. At the renewed hearing, the People were unable to produce any further evidence. However, the trial court noted Quintanilla had provided the trial court and opposing counsel a five-page document from the Department of State which indicated that, at the time of Quintanilla’s change of plea, El Salvador was involved in a civil war. Quintanilla’s counsel asserted that, had Quintanilla been advised the guilty plea subjected him to being returned to El Salvador, he would have sought an alternative disposition of the charge.

The trial court took the matter under submission and denied the motion in a written order. Although the trial court found it was required to presume Quintanilla had not been properly advised of the consequences of the guilty plea (§ 1016.5, subd. (b)), it concluded Quintanilla had failed to show prejudice. The trial court noted that, had Quintanilla proceeded to trial in 1985, he faced the possibility of a three-year prison term and thousands of dollars in fines and fees. Instead, he negotiated a probationary sentence with 90 days in jail and $200 in fines. The trial court concluded: “Nothing in [Quintanilla’s] declaration, or any other credible evidence, establishes how he might have been able to avoid conviction, or what specific defenses might have been available to him at trial, or how any evidence might have exonerated him. (In re Resendiz [(2001) 25 Cal.4th 230] at p. 254.) While a trial retained the theoretical possibility that [Quintanilla] might have avoided a conviction which would have rendered him deportable, excludable and ineligible for naturalization, it is equally true that a conviction after trial would have subjected him to these same immigration consequences. (Ibid.) Additionally, [Quintanilla] failed to present any credible, substantial evidence to establish by a preponderance of the evidence that the prosecution might ultimately have agreed to a plea allowing him to avoid adverse immigration consequences.”

CONTENTIONS

Quintanilla contends the trial court failed to consider all the evidence and erroneously analyzed the prejudice requirement.

The People contend the appeal must be dismissed because Quintanilla failed to obtain a certificate of probable cause and the reporter’s transcript of the change of plea, which the trial court presumed had been destroyed, in fact, shows Quintanilla properly was advised in 1985 by the prosecutor pursuant to section 1016.5. Additionally, the People contend the judgment must be modified to impose $80 in mandatory fees and fines which the trial court neglected to impose in 1985.

DISCUSSION

1. General principles related to a motion to vacate under section 1016.5 .

Section 1016.5, subdivision (a), requires that: “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] 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.”

The statute provides a remedy, in the form of a motion to vacate, for the failure to give the required admonishments: “If, after January 1, 1978, the court fails to advise the defendant as required by this section 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 defendant's 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. 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).)

To obtain relief under section 1016.5, a defendant 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. (Zamudio, supra, 23 Cal.4th at pp. 199-200; People v. Totari (2002) 28 Cal.4th 876, 884 (Totari).) We review the trial court’s ruling for an abuse of discretion. (Zamudio, supra, at p. 192.)

2. An appeal from the denial of a motion to vacate under section 1016.5 does not require a certificate of probable cause.

The People contend this court may not address the merits of Quintanilla’s contention because he failed to obtain a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1099; § 1237.5.)

Section 1237.5 provides, in pertinent part, “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”

However, Totari, supra, 28 Cal.4th 876 noted section 1237, “provides that a defendant may appeal from ‘a final judgment of conviction’ (§ 1237, subd. (a)), or from ‘any order made after judgment, affecting the substantial rights of the party’ (§ 1237, subd. (b)).” (Totari, supra, at p. 882.) Totari concluded an order denying a statutory motion to vacate under section 1016.5 “is an appealable order under section 1237, subdivision (b).” Totari reasoned that, in the context of the Legislature’s determination “that a noncitizen defendant has a substantial right to be given complete advisements and affords defendant a means to obtain relief by way of a statutory postjudgment motion to vacate, the ‘no second appeal’ rule loses its urgency and a denial order qualifies as an ‘order made after judgment, affecting the substantial rights of the party’ (§ 1237, subd. (b)).” (Totari, supra, at pp. 886-887.)

We note the defendant in Totari obtained a certificate of probable cause before appealing the denial of the motion to vacate. (Totari, supra, 28 Cal.4th at p. 880.) However, nothing in Totari suggests compliance with section 1237.5 was a prerequisite to the appeal. Rather, Totari unambiguously states that an order denying a section 1016.5 motion to vacate “is an appealable order under section 1237, subdivision (b).” (Totari, supra, at p. 887.) Section 1237, subdivision (b) is not subject to section 1237.5. Accordingly, we conclude the failure to obtain a certificate of probable cause is not fatal to Quintanilla’s appeal.

3. The augmented record does not show a complete statutory advisement.

At the time of Quintanilla’s motion in the trial court, the reporter’s transcript of the change of plea was unavailable. The trial court presumed it had been destroyed after 10 years and concluded the People had failed to show a proper advisement.

At the People’s request we have augmented the record on appeal to include a reporter’s transcript of the change of plea. It indicates that in 1985, prior to the change of plea, the prosecutor advised Quintanilla, “[I]f you are not a citizen of this country, this guilty plea could have a bearing on your immigration status. By that I mean you could be deported from the United States. You could be denied reentry into the United States at some later time.”

The People assert the reporter’s transcript demonstrates Quintanilla was informed that he might be deported if he pled guilty. The People reason Quintanilla is unable to demonstrate lack of proper statutory advisements and conclude his claim must be rejected on that ground.

It has been held that the advisement required by section 1016.5 need not be in the statutory language and the trial court will be found to have complied substantially with the statute “as long as the defendant is specifically advised of all three separate immigration consequences of his plea.” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174.) Here, Quintanilla was advised of the possibility of deportation and the denial of re-entry, which is the equivalent of “ ‘exclusion from admission to the United States.’ ” (Zamudio, supra, 23 Cal.4th at p. 207; People v. Gutierrez, supra, 106 Cal.App.4th at p. 174.) He was not advised the guilty plea might result in the denial of naturalization. Thus, even with the augmentation of the record, it is apparent that Quintanilla was not advised of each of the three immigration consequences of his plea.

This omission might be considered inconsequential if it were shown that, notwithstanding the guilty plea, Quintanillia is not subject to exclusion from naturalization. (See Zamudio, supra, 23 Cal.4th at p. 208; People v. Dubon (2001) 90 Cal.App.4th 944, 956.) Assuming for the sake of discussion that Quintanilla was subject to exclusion from naturalization, we proceed to the merits of Quintanilla’s appeal.

4. Failure to consider all the evidence.

Quintanilla contends the trial court failed to consider a five-page U.S. Department of State profile of El Salvador, which Quintanilla presented at the renewed hearing on the motion. Quintanilla concedes the trial court acknowledged receipt of this profile, but argues it is apparent the trial court overlooked it and did not consider all the evidence submitted by Quintanilla because no mention of this document is made in the trial court’s order and the document is not included in the clerk’s transcript. The profile indicates that, at the time Quintanilla entered his plea, El Salvador was in the midst of a civil war. Quintanilla asserts this evidence gave context to his claim he would have risked a trial had he been properly advised.

The fact the trial court did not mention the Department of State profile in its written order denying Quintanilla’s motion does not mean the trial court did not consider that document. Given that the trial court referred specifically to the Department of State profile at the renewed hearing on the motion to vacate the plea, it is apparent that the trial court considered the evidence in connection with Quintanilla’s claim of prejudice.

5. Analysis of the prejudice requirement.

Quintanilla contends the declaration filed in support of the motion stated he would have sought an alternative plea or taken the case to trial had he been advised that if deported, he could not return to the United States. Additionally, Quintanilla submitted evidence indicating that, at the time of the plea, El Salvador was in the midst of a civil war. Because this conviction was Quintanilla’s first contact with law enforcement, Quintanilla claims he demonstrated a reasonable probability he would have proceeded to trial, even though he might have been convicted, in order to delay deportation to El Salvador.

As noted above, we review the denial of a motion under section 1016.5 to vacate a guilty plea for an abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192.) Here, the trial court reviewed the history of the case and Quintanilla’s situation at the time he entered the guilty plea and concluded Quintanilla had failed to demonstrate he would have sought an alternate resolution had he properly been advised. No abuse of the trial court’s discretion appears.

6. Based on Quintanilla’s release from the penalties and disabilities of probation, there is no basis upon which this court might now modify the judgment to impose fine and fees overlooked by the trial court in 1985.

The People contend the initial sentencing of Quintanilla was defective in that the trial court failed to impose $80 in mandatory fees and fines consisting of a $50 mandatory criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), a $25 fine under former section 1464, subdivision (a), and a $5 fine under former Government Code section 76000, subdivision (a)(2). The People argue an unauthorized sentence may be corrected at any time and conclude the trial court’s order should be modified to include the fees and fines.

However, at this juncture, Quintanilla has completed probation and has been released from the penalties and disabilities of the conviction under section 1203.4, subdivision (a), which provides that a defendant who has “fulfilled the conditions of probation for the entire period of probation,” and who “is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense,” shall be permitted to withdraw his or her plea of guilty and “the court shall thereupon dismiss the accusations or information against the defendant and... he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted....” (§ 1203.4, subd. (a).)

Given that Quintanilla has been released from the penalties and disabilities associated with the 1985 conviction, there is no basis upon which this court might now impose fines and fees that inadvertently were overlooked at the time probation was granted in 1985.

DISPOSITION

The order denying the motion to vacate Quintanilla’s guilty plea is affirmed.

We concur: CROSKEY, J. ALDRICH, J.


Summaries of

People v. Quintanilla

California Court of Appeals, Second District, Third Division
Apr 16, 2009
No. B208557 (Cal. Ct. App. Apr. 16, 2009)
Case details for

People v. Quintanilla

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. OSCAR QUINTANILLA, Defendant and…

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

Date published: Apr 16, 2009

Citations

No. B208557 (Cal. Ct. App. Apr. 16, 2009)