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People v. Rivera

California Court of Appeals, Fifth District
Feb 10, 2011
No. F060384 (Cal. Ct. App. Feb. 10, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Kern County, No. SC083313A, Michael G. Bush, Judge.

Law Office of Andrew J. Fishkin and Andrew J. Fishkin for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

DETJEN, J.

Penal Code section 1237, subdivision (b), authorizes an appeal by a defendant “[f]rom any order made after judgment, affecting the substantial rights of the party.” In this case, defendant brought a postjudgment motion to vacate pursuant to Penal Code section 1016.5. Defendant was not present at the hearing on the motion. Because defendant was not present, the court took the motion off calendar. Although such an action did occur after judgment, it was not an order affecting the substantial rights of defendant. As such, it is not an appealable order and we dismiss the appeal.

All future code references are to the Penal Code unless otherwise noted.

FACTS AND PROCEDURAL HISTORY

In January 2002, defendant Juan Manuel Rivera pled no contest to one count of possession of cocaine for sale and one count of driving under the influence of alcohol. Prior to accepting the plea, the trial court told defendant, “If you are not a citizen of this country, conviction of this offense-these offenses will have the consequence of deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of this country. Do you understand that?” Defendant responded, “Yes.”

Imposition of sentence was suspended and defendant was placed on probation for three years with a condition of probation that he serve one year in jail.

In November 2009, defendant filed a motion pursuant to section 1016.5 to vacate the judgment arguing he was never informed of the immigration consequences flowing from his convictions. In his memorandum of points and authorities, defendant asserted that he was “in the custody of the Department of Homeland Security, held without possibility of bond....” Later, in the same memorandum, defendant asserted that he “must renew his green card” and was faced with a “choice” of either violating “the immigration law by letting his status expire, or face mandatory detention....” He then made a passing reference to being arrested by immigration authorities in September 2009.

The People opposed defendant’s motion addressing the arguments raised in it.

The motion was called on April 22, 2010. The following occurred:

“THE COURT: From the ten o’clock calendar, No. 4, Juan Rivera.… This is a motion to vacate.

“MR. FISHKIN [defense counsel]: Correct, your Honor. He is in immigration custody. They are not releasing him. I would like to state on the record that I do believe that you have the jurisdiction to hear the motion without him present as felony proceedings have been completed and this is a post-conviction motion. If you would deny that on the record or approve that, I would appreciate it.

“THE COURT: I’ll deny doing this without him present.

“MR. FISHKIN: Thank you, your Honor.

“THE COURT: So the motion is dropped without prejudice?

“MR. FISHKIN: I’m going to be appealing that decision so no.

“THE COURT: But you are going to drop the motion, then?

“MR. FISHKIN: I’d like to leave it open. I’d like to let you deny the motion. That way I can appeal that.

“THE COURT: I thought you meant deny your request to go forward without him present.

“MR. FISHKIN: No. If you can state on the record the reason why you are denying.

“THE COURT: I’m going to drop the motion because he is not present.”

Defendant filed a notice of appeal and a certificate of probable cause.

DISCUSSION

Defendant contends the court abused its discretion when it denied his section 1016.5 motion. He argues his personal presence is not required at a section 1016.5 motion and, thus, the court abused its discretion in refusing to go forward.

Respondent asserts the court properly declined to hear the motion in the absence of defendant because defendant failed to comply with the requirements of section 977 (regarding defendant’s ability to waive his presence). In addition, respondent claims defendant was properly advised of the immigration consequences and his claim for relief is meritless.

Although respondent notes that defendant failed to include a statement explaining why the order appealed from is appealable, as required by California Rules of Court, rule 8.204 (a)(2)(B), neither party addressed this issue. We requested supplemental briefing on the question of whether the dropping of a motion from the calendar is an appealable order.

Section 1016.5, subdivision (b), provides, in relevant part, that, if a 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.”

The Legislature has determined that a noncitizen defendant has a substantial right to be given complete advisements regarding immigration consequences at the time he enters a plea. The means for relief from the failure to receive the proper advisements is by way of a statutory motion to vacate as authorized by section 1016.5. An order denying a motion to vacate brought under that section is an appealable order because it “qualifies as an ‘order made after judgment, affecting the substantial rights of the party’ (§ 1237, subd. (b)).” (People v. Totari (2002) 28 Cal.4th 876, 886-887, fn. omitted.)

The court, however, did not deny defendant’s motion to vacate. The court dropped the motion from the calendar. The court did not issue any order denying the relief requested by defendant in his motion. Dropping the motion did not prevent defendant the opportunity to reset the motion at a later time.

Defendant did not address, in his moving points and authorities, the issue of his personal presence at the motion. Nor did he adequately address that issue at the time the motion was heard. His counsel merely stated that he thought the court had jurisdiction to hear the motion without defendant being present. Defendant did not provide legal authority on the issue.

The record demonstrates the court did not deny the motion to vacate pursuant to section 1016.5. It further demonstrates the court did not rule on the question of its authority to proceed in the absence of defendant’s personal presence. The ruling by the court did not affect any substantial right of defendant. The ruling appealed from is not an appealable order.

Although defendant asserts, in his supplemental briefing, that the trial judge routinely denies hearing 1016.5 motions when the defendant is not present thereby preventing review of the issue, there is nothing in the record to that effect.

DISPOSITION

The appeal in the above-entitled action is dismissed.

WE CONCUR: KANE, Acting P.J., POOCHIGIAN, J.


Summaries of

People v. Rivera

California Court of Appeals, Fifth District
Feb 10, 2011
No. F060384 (Cal. Ct. App. Feb. 10, 2011)
Case details for

People v. Rivera

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL RIVERA, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Feb 10, 2011

Citations

No. F060384 (Cal. Ct. App. Feb. 10, 2011)