Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA078843, James Otto, Judge.
Elliott N. Tiomkin for Defendants and Appellants.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellants Zoila Rivera, Candelarita Arita, Dinora Rivera, and Jesus Velasquez appeal from the denial of their motion to withdraw pleas of no contest entered to one count each of second degree commercial burglary (Pen. Code, §§ 459; 1237.5). They argue that the trial court committed reversible error when it denied their motion to withdraw their pleas after they shared a single interpreter between them at the change of plea hearing.
All subsequent statutory references are to the Penal Code.
We find no prejudicial error, and affirm the order denying appellants’ motion.
FACTUAL AND PROCEDURAL SUMMARY
Appellants were charged by complaint with three counts of second degree burglary (§ 459) (counts 1, 2, 3). At a change of plea hearing that took place over the course of a single day, a court-appointed interpreter translated the proceedings for the four appellants, and also translated between each of the appellants and their separate defense counsel inside and outside the courtroom. The record does not indicate that appellants waived their right to individual interpreters. Pursuant to plea bargains, appellants entered no contest pleas to single counts of felony second degree burglary and the remaining two counts were dismissed. Imposition of sentence was suspended, and appellants were placed on probation. Appellants filed a motion to withdraw their pleas pursuant to section 1018, arguing their right to individual interpreters under the California Constitution was violated, and attached declarations asserting that they did not understand the proceedings. The trial court denied the motion. After obtaining a certificate of probable cause and executing a declaration showing reasonable constitutional grounds, appellants timely filed a notice of appeal from the denial of the motion.
DISCUSSION
Appellants’ only argument on appeal is that their state constitutional right to separate interpreters was violated when they were provided with a single Spanish language interpreter at the hearing. They argue that because they did not waive their right to individual interpreters, their pleas were improperly taken. They contend this error was prejudicial because they could not understand the proceedings, and their pleas therefore were not knowing and intelligent. Respondent concedes “it appears that the use of a shared interpreter for appellants was error,” but argues that any error was harmless beyond a reasonable doubt.
Article I, section 14 of the California Constitution provides that “[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.” “In a criminal proceeding, an interpreter may perform three interrelated but distinct roles: (1) as a ‘witness interpreter,’ to enable questioning of witnesses who do not speak English; (2) as a ‘proceedings interpreter,’ to assist a non-English-speaking defendant to understand the exchanges at trial among attorneys, witnesses, and the court; and (3) as a ‘defense interpreter,’ to enable a non-English-speaking defendant to communicate with the defendant’s English-speaking attorney. [Citation.]” (People v. Romero (2008) 44 Cal.4th 386, 410.) “At moments crucial to the defense—when evidentiary rulings and jury instructions are given by the court, when damaging testimony is being introduced—the non-English-speaking defendant who is denied the assistance of an interpreter, is unable to communicate with the court or with counsel and is unable to understand and participate in the proceedings which hold the key to freedom.” (People v. Aguilar (1984) 35 Cal.3d 785, 790-791.)
Although codefendants are entitled to individual interpreters at trial, there is some dispute whether the right extends to a change of plea hearing. (See, e.g., People v. Chavez (1991) 231 Cal.App.3d 1471, 1477 [“[A] defendant has a right to an individual interpreter throughout all stages of the criminal proceedings, including jury instructions. Absent a knowing and intelligent personal waiver of this right, even a ‘shared’ interpreter during any portion of the trial proceedings will constitute error”]; People v. Rodriguez (1986) 42 Cal.3d 1005, 1013 [finding harmless error in the sharing of defense interpreters at points during trial]; People v. Resendes (1985) 164 Cal.App.3d 812, 815 [reversing conviction where defendant was required to share an interpreter with his codefendant throughout trial]; but see People v. Rioz (1984) 161 Cal.App.3d 905, 912 (Rioz) [provision of one interpreter for four codefendants at trial deprived each of constitutional right to an interpreter].) Rioz notes in dicta that “[t]here are numerous criminal proceedings, such as arraignments, changes of plea, uncontested motions, etc., at which no witnesses are called and thus no witness interpreter [is] required. The nature and pace of these proceedings themselves, as well as the fact that the involvement of each of multiple defendants with the court is frequently serial rather than simultaneous, reasonably permits a single interpreter to act as defense interpreter and proceedings interpreter for more than one defendant.” (Rioz, supra, 161 Cal.App.3d at p. 913.)
We disagree with Rioz to the extent that it indicates that a change of plea hearing does not require an individual interpreter for each defendant, and conclude that a change of plea hearing is a “moment crucial to the defense” where the right to an individual interpreter applies. (People v. Aguilar, supra, 35 Cal.3d at p. 790.) A plea of guilty “is itself a conviction.” (Boykin v. Alabama (1969) 395 U.S. 238, 242.) At a plea hearing, trial courts actively participate in the canvassing of constitutional rights with the accused, which must be “specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of [the] guilty plea.” (In re Tahl (1969) 1 Cal.3d 122, 132.) A defendant’s unawareness of the consequences of a plea causes it to be improper. (Bousley v. United States (1998) 523 U.S. 614, 618-619.) Shared interpreters force defendants “to sacrifice either [their] understanding of the proceedings or [their] ability to immediately communicate with counsel.” (People v. Chavez, supra, 231 Cal.App.3d at p. 1477.) To intelligently and voluntarily give a plea, a defendant must be able to understand the consequences of the waiver of constitutional rights in consultation with counsel. Despite the trial court’s assertion that there were separate interpreters at the change of plea hearing “for practical purposes,” the provision of a shared interpreter among appellants was constitutional error.
Because the scope of the right beyond change of plea hearings is not at issue in this case, we do not address it.
California authority recognizes the federal constitutional implications of the right to an individual interpreter, and we review its violation to determine if the error was “‘harmless beyond a reasonable doubt.’” (People v. Rodriguez, supra, 42 Cal.3d at p. 1012; People v. Chavez, supra, 231 Cal.App.3d at pp. 1477-1478.) It must appear from the totality of the circumstances that appellants understood the nature of the charges against them and the scope of their pleas, and that they were advised of and waived their right against self incrimination, their right to confront witnesses, and their right to a jury trial. (People v. Howard (1992) 1 Cal.4th 1132, 1176-1180.)
Appellants attached declarations to their motion to withdraw their pleas, asserting they did not understand their waivers or pleas at the change in plea hearing. But the transcript of the proceedings does not indicate that the use of a shared interpreter resulted in any actual material interference with appellants’ ability to communicate with their counsel, or understand the consequences of their waivers or pleas. (See People v. Rodriguez, supra, 42 Cal.3d at pp. 1015-1016 [reviewing for actual material interference with defendants’ communication with counsel or understanding of proceedings to determine if error was harmless beyond a reasonable doubt].)
In identical declarations, appellants asserted that they did not understand the consequences of their pleas or the rights they were giving up. The declarations stated that appellants did not understand what was happening, and could not hear what the interpreter was saying. They “took several breaks and spoke to our attorneys but with four people and only one interpreter, our questions were not answered.”
The record does not show appellants had difficulty understanding the proceedings; on several occasions one of the appellants spoke directly to the court saying she was ready to accept the plea. Shortly after the hearing began, counsel for Candelarita Arita said, “I think we have a plea agreement.” Dinora Rivera’s attorney then said, “I don’t believe we have a plea agreement, not as to my [client].” Dinora Rivera replied, “Could I say something? I accept.” At another point, the trial court said, “I don’t think they’re ready to plead.” Dinora Rivera’s attorney replied he would not concur in the plea on behalf of his client because he did not believe there was a factual basis for the plea. After the trial court said, “It’s obviously up to your client,” Rivera again expressed her readiness to plead saying, “[y]es, I want... I want to finish it today.”
The trial court twice halted the proceedings to allow appellants to confer with their attorneys with the interpreter’s assistance. As the prosecutor explained the proposed terms of the plea agreement to appellants, the trial court interrupted the proceedings to allow Jesus Velasquez to ask his attorney a question with the interpreter’s assistance. Afterwards, Velasquez said, “[n]ever mind.” When the prosecutor asked Velasquez if he understood the consequences of the plea agreement, Velasquez said, “No, I did not understand the deportation.” The trial court advised Velasquez that his attorney could advise him on the felony consequences of the plea, and the proceedings were halted for some 25 minutes while appellants conferred with their attorneys. During that interval the trial court called another matter.
The trial court sequentially canvassed each appellant as to his or her constitutional rights in giving a no contest plea; each answered that he or she did not have any questions about the rights being given up as a consequence of the plea. The trial court found that appellants each “expressly, knowingly, understandingly, and intelligently waived his or her constitutional rights,” and each plea was “freely and voluntarily made with an understanding of the nature and consequences thereof.”
The record supports the trial court’s findings. The error of a shared interpreter at the change of plea hearing was harmless beyond a reasonable doubt because there was no material interference with appellants’ ability to communicate with their counsel or understand the proceedings. (People v. Rodriguez, supra, 42 Cal.3d at pp. 1015-1016.) The totality of the circumstances, including a favorable disposition that was explained to appellants at the time they entered their no contest pleas, shows that the pleas and waivers were knowing, intelligent, and voluntary. (People v. Howard, supra, 1 Cal.4th at p. 1178; People v. Vargas (1993) 13 Cal.App.4th 1653, 1660-1661.)
DISPOSITION
The order denying the motion to withdraw pleas is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.