Opinion
G054921
01-18-2018
THE PEOPLE, Plaintiff and Respondent, v. MAJID TABIBI, Defendant and Appellant.
Robert L.S. Angres for Defendant and Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 95HF0394) OPINION Appeal from an order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Robert L.S. Angres for Defendant and Appellant. No appearance for Respondent.
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We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument in defendant's own behalf. That period has passed, and we have received no communication from defendant.
On May 24, 1995, a first amended complaint was filed against defendant Majid Tabibi, aka Mohsen Tabibi, aka Majid Tabibian, aka Majid Fabibi, alleging perjury, insurance fraud, arson, false credit application, grand theft and submitting false evidence. On May 22, 1996, defendant pled guilty to violating numerous Penal Code statutes. He was sentenced to three years in state prison and was ordered to pay restitution of $439,313.37.
As well as signing his guilty plea form, defendant initialed numerous provisions on the form. One of the initialed provision states: "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
Almost 20 years after pleading guilty, defendant moved to vacate his conviction on April 14, 2016, based upon an allegation the court did not advise him of any immigration consequences in 1996. In his moving papers, defendant cited Penal Code section 1016.5, subdivision (b), which states: "Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the require[d] advisement."
Attached to defendant's motion was his own declaration, in which he states in part: "4. At the time I entered a GUILTY plea, I was NOT a citizen of the United States. [¶] . . . [¶] 6. At no time did the Court or the People ever advise me of the immigration consequences, which I am currently suffering. [¶] 7. I did not know the immigration consequences of my guilty plea. [¶] 8. Had I been advised of such dire consequences, such as deportation proceeding and denial of legal residency that followed, I would have not entered a GUILTY plea."
In denying defendant's motion to vacate his guilty plea, the Honorable Richard M. King issued a four-page written order, filed on May 20, 2016, that states defendant did not demonstrate diligence in seeking relief. The court added: "Moreover, the court takes judicial notice of its own records, which indicate defendant attempted to withdraw his plea based on failure to advise of immigration consequences on two occasions in 2009, styled as petitions for writ of coram nobis. Those petitions were denied on 8/27/2009 and 10/23/2009. Defendant fails to mention those motions, and fails to explain why he waited more than six additional years before seeking the present relief." The court clerk mailed a certified copy of the court's order to defendant's retained counsel on May 24, 2016.
Although the record on this appeal indicates the reporter's transcript from defendant's 1996 sentencing was destroyed in 2014, the trial court's written order indicates it had a copy of the 1996 court reporter's transcript: "Second, although the transcript provided by defendant demonstrates the trial court did not orally recite the required advice on the record, case law is clear that such an oral statement is not required." The court went on to discuss and quote from a published case, People v. Araujo (2016) 243 Cal.App.4th 759, 763. Later in the court's order, it states: "The transcript provided by defendant demonstrates the court confirmed that defendant had read and understood all statements on the plea form and stated its finding that defendant understood the 'consequences' of his plea, and both defendant and counsel concurred with those findings. As such, there is 'substantial compliance' despite the lack of an oral advisement."
On July 11, 2016, defendant filed a motion for reconsideration. Attached to this motion was defendant's declaration, stating much the same as his earlier declaration, but this one added several new paragraphs, including: "It was not until 2009 that I first learned of the immigration consequences of the plea. This occurred when the mother of my child in a custody battle falsely reported to Homeland Security that I was an arms dealer from the middle east." He also explained that his deportation order "was appealed and stayed." In another lengthy written order filed on September 23, 2016, the court denied defendant's motion for reconsideration.
Defendant filed a notice of appeal on October18, 2016. On December 8, 2016, this court dismissed defendant's October 18, 2016 appeal.
Undaunted, defendant filed yet another motion pursuant to Penal Code, section 1016.5 on January 26, 2017. When it was heard in the trial court, the judge stated: "Counsel, if I'm looking at your motion correctly, this is, again, an attempt to withdraw Mr. Tabibi's guilty plea on the grounds that he wasn't orally advised of [section] 1016.5. [¶] I think this similar motion has been denied on August 27th, 2009; October 23rd, 2009; May 20th, 2016; September 23rd, 2016."
Defendant's January 26, 2017, motion includes essentially the same declaration filed at least twice in earlier motions. He also claims in his latest motion that "he spoke very little English at the time of the plea." He "could not even read" the immigration advisement on his guilty plea form. Yet, the record before us contains a long handwritten letter defendant sent to the sentencing judge on October 8, 1996, less than five months after he pled guilty. A portion of that letter states: "I have done nothing but improve my life by working 60 hrs/week and after work I still managed to go to school, finish my undergraduate program, and managed to get accepted to a law school in L.A., (People's College of Law). I have finished my 1st year and ready to proceed with the rest of it. I also managed to receive my master mechanic's license while in prison."
During the hearing of defendant's instant motion, the court stated: "When the plea was taken, Judge [John J.] Ryan specifically asked Mr. Tabibi whether or not he read and understood all the statements on the guilty plea form, and he answered in the affirmative. He specifically found that Mr. Tabibi voluntarily signed that form understanding all of the consequences of the plea. [¶] After he made that finding, Judge Ryan actually inquired of both the defendant and his counsel whether they agreed with those findings and they said, yes." The trial court denied defendant's latest motion to set aside his guilty plea in a lengthy written order filed on April 18, 2017. Defendant filed the current notice of appeal from that order on May 8, 2017.
Under the law, we were required to review the record and see if we could find any issues that might result in some kind of amelioration of defendant's situation. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which defendant would prevail, but only issues upon which he might possibly prevail. We have examined the record and found no arguable issue.
The order of the superior court is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.