Opinion
NOT TO BE PUBLISHED
Received for posting 10/24/11
ORIGINAL PROCEEDING; petition for writ of mandate No. VCF040396X-98. Gary Paden, Judge.
Phillip J. Cline, District Attorney, Shani D. Jenkins, Assistant District Attorney, Janet E. Wise and John F. Sliney, Deputy District Attorneys, for Petitioner
No appearance for Respondent.
Law Office of Eduardo A. Paredes and Eduardo Alberto Paredes, for Maria Alvarez Contreras, Real Party in Interest.
OPINION
Before Levy, A.P.J., Gomes, J., and Poochigian, J.
FACTS AND PROCEDURAL HISTORY
In a felony complaint filed in Tulare County Superior Court on July 30, 1998, Real Party in Interest, Maria Alvarez Contreras (RPI), was charged with possession of cocaine for sale (Health & Saf. Code, § 11351) and possession of marijuana for sale (Health & Saf. Code, § 11359).
On November 17, 1998, RPI entered a change of plea and plead no contest to both charges. At the change of plea hearing, the court stated, “If you’re not a citizen of the United States, your plea of guilty or no contest could result in you being deported from the United States, denied readmission, naturalization and permanent residency.”
On April 14, 2011, RPI filed a motion to vacate the judgment. The motion was not supported by a declaration from either RPI or counsel.
On May 24, 2011, a hearing began on the motion but was continued.
On June 8, 2011, petitioner filed opposition to the motion.
On June 13, 2011, RPI filed a supplement to the motion. The supplement included two statements by RPI, both translated from the Spanish. Although both translations are entitled “Declaration Translation, ” neither say the statement given by RPI was signed under penalty of perjury. In addition, nowhere in either statement does RPI say that, but for the immigration advisement she received, she would not have entered the change of pleas, or but for the advisement of counsel she would not have plead guilty. The translations of the declaration are set forth below:
“To Whom It May Concern, I Maria Alvarez, was arrested in Goshen, CA in 1998. It had been three weeks since in [sic] arrived from Mexico. My husband was assassinated 6 or 7 weeks prior to my arrest. He was assassinated by local police from Goshen, CA. They knocked at my door, and entered without permission or an order to search. They scared me a lot and they told me they would take away my children. They pressured me a lot. They told me that if I did not declare myself guilty they were going to give me many years of jail and I was not going to have my children. Not knowing the laws and not knowing that I had rights, I was obligated to declare myself guilty for the fear of losing my children who already did not have their father. And for the fear of many years in jail as they told me, I declared myself guilty. But they never told me that I had rights. With all of the fear that I had, I was unable to defend myself and now I seek pardon.”
“I Maria. Forgive me for my errors. I feel bad for having offended you. I haven’t been well. I have been consulting a doctor over the phone. I suffer from arthritis, my lungs and nerves. I cannot go to my country because it is not possible to live over there. If you can help me I would be very grateful forever. It is terrible how they are killing people over there. My husband was killed over there and they almost killed one of my children so I have a lot of fear of being denied. I plead to you at this time. There are too many detentions. I have my daughters here that also need me. We are very united. My grandchildren also need me and I need them. Thank you for your help. Forgive me for not being able to express myself.”
Among the other exhibits with the supplement was RPI’s application for a permanent visa, dated April 12, 2001. The application was approved on March 14, 2006 and sent to the Department of State National Visa Center (NVC) where it would then be reviewed by that organization and sent to the appropriate consulate for completion and prior to any formal approval.
On June 14, 2011, petitioner filed supplemental opposition to the motion.
On June 15, 2011, a hearing was held on the matter. The court orally tentatively granted the motion, in pertinent part stating:
“THE COURT: This is a motion to set aside a plea that was entered into 23 [sic] years ago. Miss Contreras is present being assisted by the court interpreter. I have read the motion. I have read the opposition. I have read the supplemental. I have read the opposition.
“And let me tell you how I see this and then I’ll allow counsel to argue it. Miss Contreras entered her plea September 17, 1998 and was sentenced October 15th 1998 on two drug charges 23 [sic] years ago.
“She was placed on formal probation for a period of three years. Ordered to serve a year in the County Jail. She did that time. She did everything that was requested of her, although she did have a violation of probation for a failure to report. However, it appears that, that was straightened out and on November 9th in 2005 probably in contemplation of the immigration consequences she came in and Judge Sevier granted her request pursuant to 1203.4. The case was dismissed.
“I have numerous documentation that she complied with all the programs that she was supposed to comply with during probation and paid all her fines.
“However at her plea on September 17th 1998, she was advised that her plea could result in her deportation. As far as I’m concerned that’s, that’s an adequate advisement.
“I know counsel indicates that that’s probably not enough and also argues that there was ineffective assistance of counsel on this issue, but I don’t find that. Legally I think I would be justified in denying her request so I have analyzed it from a legal standpoint.
“Now I’m going to put on my other hat which is my equity hat. Is it the equitable thing to do. Well she committed a crime in the State of California. She was not a legal citizen.
“Some might argue these people don’t deserve to be here if they commit crimes in the United States coming from a foreign country. They come up here or they come here to the United States and commit a crime. They shouldn’t be allowed to remain in this country.
“Not only that, she has all sorts of health problems. I don’t know if she would take advantage of the State or Federal programs in terms of health care. One could argue that maybe she should be deported and go back to Mexico and have her issues handled there.
“But by and large it just seems like the right thing to do. She’s been here for 23 [sic] years since she’s entered this plea. She hasn’t gotten in anymore trouble. She has kids here, grandkids here. They all need her.
“There appears to me to be some issue as to her safety if she’s deported to Mexico given the fact that her husband was murdered in Mexico probably as a result of some drug deal. That’s just speculation on my part.
“Although I read her declaration about him being assassinated by the Goshen police. I’m sure she was mistaken about that.
“There are arguments, good arguments on both sides of this issue but my tentative ruling purely on a state, purely on an equitable situation is to allow her to withdraw her plea. That would be my tentative ruling.
“Now I understand that, that may not sit right with the People. I understand that and I think legally you’re right and if you wanted to take me up on appeal, this might be a case to do it, but I don’t know if this is really the right vehicle. It would be an easy decision to make had she continued to be in, continued to live a life of crime or continued to be involved in criminal activity but she’s been here for essentially 23 [sic] years since this incident and created no problems. I think it would be unfair to have her deported back to Mexico.
“So with that in mind since you’re winning I’m going to turn now to the prosecution and see what they have to say. Mr. Sage.” (Emphasis added.)
At the hearing, counsel for RPI (Mr. Paredes) stated:
“MR. PAREDES: Yes, Your Honor. I do understand that the -- the People’s position as to establishing whether or not she has suffered any adverse consequences because of that. I will point out that solely because the file is not available there is no -- I haven’t submitted a notice of denial or notice that she has been placed for removal proceedings but I did submit with the supplemental motion a document for application which shows she has applied for a permanent residence in United States. That application, however, has been denied and it’s been denied specifically because of the conviction of an aggravated felony.
“And also as to show I don’t have a denial notice in order to file it with the court, Your Honor.…” (Emphasis added.)
Also on June 15, the court entered its written order setting aside the judgment and allowing RPI to withdraw her pleas.
The present petition was filed on August 11, 2011.
On August 22, 2011, this court issued the following order:
“This court is considering issuing a peremptory writ of mandate in the first instance in the above entitled action.
“On or before 15 days from the date of this order, real party in interest is granted leave to file a response to the petition.
“Failure to file a response shall be deemed consent that appropriate relief may issue without further proceedings. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)”
On September 1, 2011, opposition was filed by RPI.
DISCUSSION
There is no basis for the court to rule in “equity” as a means not to follow the law when presented with a motion pursuant to section 1016.5. (See e.g. People v. Superior Court (Hershelman) (1979) 99 Cal.App.3d 865, 868; Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 463; Shive v. Barrow (1948) 88 Cal.App.2d 838, 844.
Section 1016.5 provides, in pertinent part:
In People v. Totari (2002) 28 Cal.4th 876, 884, the Supreme Court set forth what a defendant must do to prevail on a motion to vacate pursuant to 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. ([People v. Superior Court](Zamudio) … [(2000)] 23 Cal.4th [183, ] 192, 199-200; People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) 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. (Zamudio, supra, 23 Cal.4th at pp. 209-210.) 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. (Id. at pp. 199, 207, 209-210.) Thus, in deciding the merits of defendant’s motion to vacate, it may be important for the trial court to determine the factual issue of knowledge.” (Emphasis added.)
By declarations and the record, RPI was able to show she was technically not properly advised. She was able to show there was more than a remote possibility her convictions would have one or more of the specified adverse immigration consequences. What her declarations failed to show, however, was that had she been properly advised by the court or counsel, she would not have entered the pleas.
RPI allowed 13 years to elapse before she brought her motion pursuant to section 1016.5. According to the court and counsel, for the last four or five years she knew for a fact at least one negative immigration consequence was the result of her pleas due to the denial of her request for permanent residence in the United States. Such a substantial delay is prejudicial to petitioner. (See, e.g., In re Harris (1993) 5 Cal.4th 813, 828.) RPI has offered no justification for this delay. (See People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618-1619 (Castaneda); see also Zamudio, supra, 23 Cal.4th at pp. 203-204 [stating Castaneda, supra, “stands at most for the proposition that a postjudgment motion to change a plea must be made with ‘reasonable diligence’ (id. at p. 1619).”].)
Similarly, RPI has failed to show she was denied effective assistance of counsel because counsel misadvised her about the immigration consequences flowing from entry of her pleas. In fact, the deficient representation or misadvisement claim was only made in a conclusional fashion unsupported by declaration by either RPI or former counsel regarding the advisement, if any, she received from counsel. (In re Resendiz (2001) 25 Cal.4th 230, 248-254; In re Alvernaz (1992) 2 Cal.4th 924, 938.) RPI likewise delayed in bringing this issue before the court. (In re Harris, supra, 5 Cal.4th 828.)
Petitioner is entitled to appropriate relief. (Code Civ. Proc., § 1085.) A peremptory writ of mandate is proper and should issue. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at pp. 180-181.)
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the Superior Court of Tulare County to vacate its order of June 15, 2011, granting RPI’s motion pursuant to Penal Code section 1016.5 in Tulare County Superior Court case No. VCF040396X-98, and enter a new order denying said motion.
“(a) 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.
“(b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. 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.”