Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCE189563, Louis R. Hanoian, Judge.
McDONALD, J.
On June 25, 1998, noncitizen defendant Laura Sandoval entered a plea of guilty to transporting marijuana (Health & Saf. Code, § 11360, subd. (a)). She was placed on probation for a period of three years, subject to conditions, including the condition she remain in the custody of the sheriff for 140 days. Following completion of her commitment to the custody of the sheriff she returned to Mexico. The federal immigration court later ordered her deported in absentia.
On April 17, 2007, Sandoval filed a motion to vacate the conviction and to withdraw her guilty plea under Penal Code section 1016.5. On December 17, 2007, the motion was denied. On December 21, 2007, Sandoval timely filed a notice of appeal.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal Sandoval contends it was error to deny her motion to vacate her 1998 conviction for violation of Health and Safety Code section 11360, subdivision (a), and to permit withdrawal of her guilty plea to that offense. She argues she was not adequately advised, as required by section 1016.5, that as a noncitizen the guilty plea consequence might be exclusion from admittance to the United States.
FACTS
On June 14, 1998, Sandoval was a passenger in a vehicle driven by her sister that entered the United States from Mexico at the Tecate port of entry. The vehicle was searched by customs officials who discovered 63.9 pounds of marijuana in the engine compartment. The occupants of the vehicle were to be compensated for bringing the vehicle into the United States and were aware of the presence of the marijuana in the vehicle. The occupants of the vehicle were arrested.
After Sandoval pleaded guilty to a violation of Health and Safety Code section 11360, subdivision (a), and completed her commitment of custody with the sheriff, she returned to Mexico. On December 23, 1998, she was ordered deported in absentia based on her criminal conviction. In 2000 she met and married Jose Burgueno, a Sergeant in the United States Army, with whom she has a son now four years old. In 2007 she applied for a United States visa so she could join her husband at his Fort Benning, Georgia assignment. On March 9, 2007, her application for a visa was denied because of her 1998 conviction of violating Health and Safety Code section 11360, subdivision (a), and under current law is permanently ineligible to enter the United States. Presumably, if Sandoval's conviction is vacated, the conviction will no longer be an impediment to her ability to legally enter the United States. (See discussion of this issue with cited authorities in Harris, A Problem of Proof: How Routine Destruction of Court Records Routinely Destroys a Statutory Remedy (2007) 59 Stan. L.Rev. 1791, 1803-1804.)
DISCUSSION
Section 1016.5 provides:
"(a) Prior to acceptance of a plea of guilty . . . to any offense punishable as a crime 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.
"(b) . . . If . . . 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 . . . 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 . . ., 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."
Sandoval contends she is a noncitizen and there is insufficient evidence the required advisement was given to her in connection with her guilty plea; under section 1016.5, the court was required to vacate her conviction and permit withdrawal of her guilty plea. Unfortunately, there is no transcript of the hearing at which she entered her guilty plea. The reporter's transcript of that 1998 hearing apparently was not destroyed under Government Code section 68152, subdivision (j)(7), but was lost by a temporary court reporter. The appellate record contains only the court minutes of that hearing and the written change of plea form signed by Sandoval.
The California Supreme Court has considered the application of section 1016.5 in several cases, including People v. Superior Court (Zamudio)(2000) 23 Cal.4th 183 (Zamudio), People v. Totari (2002) 28 Cal.4th 876, and In re Resendiz (2001) 25 Cal.4th 230. The parties agree that as a result of these cases, a successful motion to vacate a conviction under section 1016.5 must establish that the defendant was not properly advised on the immigration consequences of the plea, there is more than a remote possibility the conviction will have a specified adverse immigration consequence, and the failure to properly advise the defendant will prejudice the defendant. To satisfy the prejudice requirement, the defendant must establish that it is reasonably probable he or she would not have pleaded guilty had the proper advisement been given. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1246.
This case presents the apparently not unusual problem that the reporter's transcript of the change of plea hearing has been destroyed and it is therefore impossible to review the advisements the trial court orally gave to the defendant. Sandoval contends the absence of a reporter's transcript triggers the presumption in section 1016.5, subdivision (b), which provides:
The reasons for the unavailability of reporter's transcripts in many section 1016.5 cases and the issues their absence creates are exhaustively discussed in Harris, A Problem of Proof: How Routine Destruction of Court Records Routinely Destroys a Statutory Remedy (2007) 59 Stan. L.Rev. 1791.
"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."
Sandoval further contends this presumption places the burden on the People to show she was properly advised and the change of plea form does not meet the People's burden.
Sandoval's position assumes the term "record" in section 1016.5, subdivision (b) refers to the transcript of the court's oral advisements at the change of plea hearing and, in the absence of that transcript, there is no record the advisements were given. However, case authority does not support Sandoval's position. In People v. Dubon (2001) 90 Cal.App.4th 944, 954, the court held that the term "record" in section 1016.5, subdivision (b), is not limited to a reporter's transcript of oral proceedings, but includes the minutes of the court, which the appellate court then considered as to their adequacy in containing the required advisements.
Furthermore, in People v. Quesada (1991) 230 Cal.App.3d 525, the appellate court held that the term "court" in section 1016.5, subdivision (b) was not limited to a judge, but means the judicial tribunal in which the plea is taken by those acting on behalf of the tribunal, including the judge, counsel, court reporter and clerk. (Quesada, at pp. 535-536.) Quesada also stated that "the statutory admonition [need not] be given orally. It is sufficient if . . . the advice is recited in a plea form and the defendant and his counsel are questioned concerning that form . . . ." (Id. at p. 536.) The Quesada case was followed by People v. Ramirez (1999) 71 Cal.App.4th 519, which held it was not necessary the statutory advisements be oral, and that a change of plea form is part of the court record and if properly worded will satisfy the requirements of section 1016.5. We conclude that because there is a record the court provided advisements to Sandoval, the presumption of section 1016.5 subdivision (b), that she did not receive the advisements is not applicable. We therefore consider whether the court minutes and change of plea form provided by the court that are part of the record in this case satisfy the requirements of section 1016.5.
The change of plea form included the following statement:
"I understand that if I am not a citizen of the United States a plea of Guilty or No Contest could result in deportation, exclusion from admission to this country, and/or denial of naturalization."
The box opposite this statement was initialed by Sandoval. Below this statement Sandoval signed the following statement:
"I declare under penalty of perjury, under the laws of the State of California, that I have read, understood and initialed each item above, . . . and everything on the form . . . is true and correct."
Below the statement signed by Sandoval, her attorney signed the following statement:
". . . I am the attorney for the defendant . . .; . . . I personally read and explained the entire contents, including each item of the above declaration . . . to the defendant . . .; . . . I personally observed the defendant fill in and initial each item, or read and initial each item [acknowledging] explanation of the contents of each item; . . . I observed the defendant date and sign the declaration . . .; . . . I concur in the defendant's above plea and waiver of constitutional rights."
Below the statement signed by Sandoval's attorney, the court interpreter signed the following statement:
"[T]he interpreter in this proceeding, having been duly sworn, truly translated this form . . . and all the questions therein to the defendant in the Spanish language. The defendant indicated understanding of the contents of the form . . . and then initialed and signed the form . . . ."
Below the statement signed by the court interpreter, the trial court judge signed the following statement:
"The Court, having questioned the defendant/defendant's attorney concerning the defendant's constitutional rights . . ., finds that the defendant understands these rights and voluntarily and intelligently waives these constitutional rights. The Court finds that the defendant's plea and admission are freely and voluntarily made; that the defendant understands the . . . consequences of the plea and admission . . . ."
The trial court judge that received Sandoval's guilty plea was the same judge that denied her motion to vacate the conviction.
The change of plea form is part of the record, and the record therefore shows that Sandoval was advised by the court of all three possible immigration consequences of entering a guilty plea in the language of section 1016.5, the form was reviewed by Sandoval with her attorney, the form was translated into Spanish and she understood the advisements discussed and the rights waived. Under People v. Ramirez, supra, 71 Cal.App.4th 519, 523, that is all section 1016.5 requires and the trial court was therefore not in error by denying her section 1016.5 motion to vacate the conviction.
Because we conclude the section 1016.5 advisement given to Sandoval was adequate, we do not reach the other two issues of whether the plea had immigration consequences or whether Sandoval was prejudiced.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.