Opinion
B229501 c/w B229503
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. CERINA VALLE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. SELINA VALLE, Defendant and Appellant.
Hill, Piibe & Villegas, and Alary E. Piibe, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. BA110965 & BA157412)
APPEAL from orders of the Superior Court of Los Angeles County. David M. Horowitz, Judge. Reversed in part, affirmed in part, and remanded.
Hill, Piibe & Villegas, and Alary E. Piibe, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Celina Valle appeals from orders denying her motions to vacate judgments entered in 1995 and 1997. The trial court heard both motions together, but maintained separate file numbers. On our own motion, we have consolidated the two appeals for all purposes.
In the 1995 case (BA110965), defendant was charged as Cerina Valle, with a birth date of July 27, 1968. In the 1997 case (BA157412), defendant was charged as Selina Valle also known as Cerina Valle, with a birthdate of August 28, 1966. She represents that she is the same person, her name is Celina Valle-Cervantes, and her birthdate is July 27, 1967.
Defendant contends that she was not adequately advised of possible immigration consequences of her guilty pleas in the two cases, and thus entitled to withdraw her pleas under Penal Code section 1016.5, subdivision (b). We reverse the order denying defendant's motion to vacate the 1995 judgment, and remand with directions. We affirm the order denying defendant's motion to vacate the 1997 judgment.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
1. Background Common to Both Motions
Defendant brought her motions to vacate the two prior judgments under section 1016.5, subdivision (b), on the ground that she had entered a guilty plea in each case, but was not adequately advised that her conviction could result in deportation, exclusion from admission to the United States, or denial of naturalization. One motion sought to vacate the 1995 conviction of Health and Safety Code section 11351.5, possession of cocaine base for sale, entered in Los Angeles Superior Court Case No. BA110965 (the 1995 case). The other motion sought to vacate a 1997 conviction of section 487, subdivision (a), grand theft, entered in Los Angeles Superior Court Case No. BA157412 (the 1997 case).
Defendant supported the motions with declarations containing identical personal information: she was born in Mexico; came to the United States in 1988; had four United States citizen children; and married a United States citizen, a Los Angeles Police Department detective, with whom she had two more United States citizen children, one with special needs. Defendant was arrested in 2010 by immigration officers, and was brought before the immigration court.
Defendant does not reveal the result of that appearance or describe her present immigration status. However, multiple convictions of crimes of moral turpitude or one conviction of certain drug offenses renders her deportable and ineligible for readmission. (See 8 U.S.C. §§ 1182(2)(A)(i), 1227(a)(2)(A) & (B).)
The trial court denied both motions, and upon obtaining certificates of probable cause, defendant filed timely, separate notices of appeal from the orders denying the motion.
2. Motion to Vacate Judgment in the 1995 Case
In her declaration supporting the motion to vacate the conviction in the 1995 case, defendant denied that she had been involved with drugs, intimating that the drugs found in her house belonged to her brother. Defendant claimed that she was factually innocent, but pled guilty in order to avoid a possible prison sentence under the mistaken impression that she was admitting only simple possession of drugs rather than possession of drugs for sale. She thought that the only consequences of her guilty plea would be the payment of fines, probation, and a few more weeks in jail.
Defendant stated that she has no memory of whether she was advised that her conviction could prevent her from gaining legal status in the United States, and that if she had been so advised she would not have entered the plea. Defendant explained that she had three United States citizen children at the time, and would not have jeopardized her ability to stay in the United States with them.
Attached to her motion to vacate, defendant includes a copy of the minute order of the 1995 hearing in which she entered her guilty plea. There, the preprinted language is: "Defendant advised and personally waives [her] right to confrontation of witnesses for the purpose of further cross-examination, and waives privilege against self-incrimination. Defendant advised of possible effects of pleas on any alien/citizenship/probation/parole status." There was no other mention of immigration consequences in the minutes, and the reporter's transcript of the plea hearing was unavailable at the time of the hearing on the motion to vacate.
The transcript surfaced after the hearing, and has been included in the clerk's transcript on appeal.
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No written opposition by the People appears in the record. The trial court concluded that because the reporter's transcript was missing, defendant had not carried her burden to prove that the advisement was inadequate. The court denied the motion.
3. Motion to Vacate Judgment in the 1997 Case
In the declaration to support her second motion, in addition to the facts regarding herself and her family, defendant stated that she pled guilty in the 1997 case in order to avoid going to prison. Defendant stated that she did not remember whether she was advised that her conviction could prevent her from gaining legal status in the United States, but if she had been so advised, she would not have entered the plea, because she had three United States citizen children under her care. She stated: "If someone had clearly explained to me that this conviction would stop me from ever being able to live in this country legally, I do not believe that I would have pled guilty to committing theft. . . ."
The transcript of the plea hearing shows that the court took the pleas of several defendants in the same hearing, and the prosecution advised the defendants as a group of their constitutional rights, although each plea and waiver of rights was taken individually. Among other advisements, the prosecutor said to the group: "In addition, if you're not a citizen of the United States, a plea of guilty could result in your deportation, exclusion from admission to the United States or denial of naturalization." Defendant was assisted by a Spanish-language interpreter and represented by counsel. She answered, "Yes," when the prosecutor asked whether she understood all the possible consequences to her plea.
The trial court found the necessary advisement was given and denied the motion to vacate. The court issued a certificate of probable cause, and defendant filed a timely notice of appeal.
DISCUSSION
I. Overview of Section 1016.5
Prior to acceptance of a plea of guilty or nolo contendere, the court must give the defendant the following advisement on the record: "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." (§ 1016.5, subd. (a).) "If . . . the court fails to [so] advise the defendant . . . 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." (§ 1016.5, subd. (b).)
"To prevail on a motion to vacate under 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. [Citations.]" (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari); see also People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200 (Zamudio).)
Prejudice is established when it appears "'reasonably probable" the defendant would not have pleaded guilty if properly advised.'" (Zamudio, supra, 23 Cal.4th at p. 210.) Whether the defendant would not have pled guilty if properly advised is a question of fact to be determined by the trial court upon a review of the entire record. (Ibid.) Whether the defendant was in fact ignorant of the potential immigration consequences may be a significant factor in determining prejudice. (Totari, supra, 28 Cal.4th at p. 884.)
We review the trial court's ruling for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192.)
II. The 1995 Case
Defendant contends that the trial court erred in denying her motion to vacate the conviction in the 1995 case and to allow her to withdraw her guilty plea. Respondent does not dispute the error.
We agree that the court erred in finding that defendant could not meet her burden to prove the absence of the required advisement, based on the absence of the reporter's transcript of the plea. "Absent a record that the court provided the advisement, . . . the defendant shall be presumed not to have received the required advisement." (§ 1016.5, subd. (b).) In such a circumstance, the prosecution bears the burden to prove by a preponderance of the evidence that the required advisements were given. (People v. Dubon (2001) 90 Cal.App.4th 944, 954-955 (Dubon).)
Absent a reporter's transcript, a minute order can sometimes amount to an adequate record of the required advisement. (Dubon, supra, 90 Cal.App.4th at p. 954.) In Dubon, there was no reporter's transcript, and the only evidence of the advisement was a minute order stating that the defendant "was advised of the possible effects of his plea on any 'alien/citizenship/probation/parole status.'" (Ibid.) The Dubon court held that while such a minute order provides some evidence that the required advisements were given, it is insufficient, without more, to establish a complete advisement of the three possible consequences: deportation, exclusion, and denial of naturalization. (Id. at p. 955.) As the minute order in this case is identical to the one in Dubon, and no other evidence of the advisement was before the trial court, the prosecution did not meet its burden under section 1016.5, subdivision (b).
Since the missing reporter's transcript is included in the record on appeal, and reflects that the required advisement was given, defendant asks that we review the transcript and determine whether the advisement was adequate in light of the absence of a Spanish-language interpreter. We may not do so. The ruling on a motion may be assessed only on the facts before the trial court at the time it made that ruling. (People v. Hernandez (1999) 71 Cal.App.4th 417, 425.) Moreover, even if we were to agree that the advisement was inadequate under the circumstances, the factual issue of prejudice would arise. (Totari, supra, 28 Cal.4th at p. 884.) Prejudice must be determined by the trial court in the first instance. (Zamudio, supra, 23 Cal.4th at p. 210.)
We shall therefore reverse the court's ruling on the 1995 case and remand for consideration of the issues, based upon all the evidence in the record, including the reporter's transcript.
III. The 1997 Case
Defendant contends that the trial court erred in finding the immigration advisement adequate when she pled guilty in the 1997 case. Defendant does not claim that she was not advised of the three possible immigration consequences rather she argues that reversal is required because there is substantial evidence that she did not understand the advisement. (See People v. Carty (2003) 110 Cal.App.4th 1518, 1525 [advisement must be understood to be adequate].) Defendant points to the lack of an individual advisement, her need for an interpreter, her initial refusal to waive her constitutional rights, and statements in her declaration as evidence that she did not understand the advisement.
Defendant suggests that under comparable circumstances, the appellate court in People v. Gutierrez (2003) 106 Cal.App.4th 169 (Gutierrez) held that substantial compliance with section 1016.5 required, in addition to the oral advisement by the prosecutor, evidence such as a written plea form containing the required advisement, as well as evidence of a discussion between defendant and defendant's attorney about the possible immigration consequences.
The circumstances here were not comparable to those in Gutierrez. There, the appellate court rejected defendant's contention that the advisement should be in the words of the statute. (See Gutierrez, supra, 106 Cal.App.4th at pp. 173-174.) The court held that a written waiver may substitute for the oral advisement, but did not hold that a proper advisement must include a written waiver or an explanation by defense counsel. (Id. at pp. 174-175.) Here, the advisement tracked the statutory language of section 1016.5, subdivision (a). The prosecutor warned: "[I]f you're not a citizen of the United States, a plea of guilty could result in your deportation, exclusion from admission to the United States or denial of naturalization." There was thus no need for additional evidence in the form of a written waiver or further description of defense counsel's participation.
Moreover, the issue on appeal is not whether substantial evidence supports a finding contrary to that of the trial court. We review the trial court's ruling for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192.) To establish an abuse of discretion, defendant must show that it was exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.) Defendant has not demonstrated an abuse of discretion. Defendant was represented by counsel during the plea proceedings, was assisted by a Spanish-language interpreter, and the advisement properly tracked the statutory requirements. When defendant was asked individually whether she understood, she answered in the affirmative.
Nor did the evidence establish that defendant did not understand the advisement. Defendant's initial refusal to waive her constitutional rights came before she was advised of the immigration consequences of her plea, and she apparently understood the court's further explanation, as she then agreed to waive them. There was no indication that defendant did not understand the Spanish interpreter or that the interpreter misspoke. "[T]he defendant is deemed to have understood the recitation if it was given in the defendant's language." (People v. Carty, supra, 110 Cal.App.4th at p. 1526.) Finally, defendant did not state in her declaration that she did not understand the advisement. She stated that she did not remember the advisement, but thought she would remember something like that, and that she thought she might not have understood the entire plea proceeding. The trial court could reasonably conclude that, at most, defendant established a lack of memory.
In any event had the advisement been inadequate the failure to establish prejudice would have supported the denial of defendant's motion. Defendant did not state that she was ignorant of the possible immigration consequences, rather she stated that she did not believe she would have entered a guilty plea had the immigration consequences been clearly explained. It was within the discretion of the trial court to disbelieve defendant's claim that her understanding was different from her statement at the time of the plea. (Gutierrez, supra, 106 Cal.App.4th at p. 176.)
IV. Nonstatutory Grounds
Defendant's final contention is that the trial court should have considered vacating the judgment in the 1997 case on "nonstatutory grounds." Defendant's motion was expressly made pursuant to section 1016.5; the notice of motion did not include a nonstatutory motion. However, in her memorandum of points and authorities supporting the motion, defendant argued that it would be appropriate to vacate the judgment, because "there [was] no evidence that she was ever informed that she could seek to avoid harmful immigration consequences by entering into a plea to an alternate charge." The trial court did not treat the argument as a nonstatutory motion, and its ruling was directed to the motion made pursuant to section 1016.5.
A nonstatutory motion to vacate a judgment is the legal equivalent of a petition for a writ of error coram nobis. (People v. Kim (2009) 45 Cal.4th 1078, 1096 (Kim).) A court may summarily deny such a petition unless the defendant has alleged with particularity newly discovered facts showing "substantial legal or factual issues on which availability of the writ turns . . . ." (People v. Shipman (1965) 62 Cal.2d 226, 230; see also Kim, supra, at p. 1102.)
"New facts that would merely have affected the willingness of a litigant to enter a plea, or would have encouraged or convinced him or her to make different strategic choices or seek a different disposition, are not facts that would have prevented rendition of the judgment." (Kim, supra, 45 Cal.4th at p. 1103.) In particular, allegations that the defendant would not have pled guilty had he or she known the possible immigration consequences or the possibility of entering a plea to a nondeportable offense do not state grounds for coram nobis relief. (Id. at pp. 1102-1103.) As defendant does not claim to have met the pleading or proof requirements, she has not shown that the trial court erred in failing to treat the argument in her memorandum of points and authorities as a nonstatutory motion.
Citing Padilla v. Kentucky (2010) _ U.S. _ (Padilla), defendant suggests that the United States Supreme Court holding in that case entitles her to have her conviction vacated at any time, due to her failure to understand the immigration consequences of her guilty plea. Padilla has no application here. The court held that a claim of ineffective assistance of counsel may be based upon misadvising or failing to advise the defendant regarding possible immigration consequences of a plea. (Id. at pp. 1481-1482.) The court did not hold that such a claim may be brought long after the defendant's release from actual or constructive custody, nor did it address that issue. The claim in Padilla was made in a "postconviction proceeding." (Id. at p. 1478.) However the opinion did not indicate whether that proceeding was a motion for new trial, a writ proceeding, or a motion similar to California's statutory motion under section 1016.5. Also, neither the date of conviction nor the date of the motion was noted. Finally, the court did not address the timeliness, pleading, or proof requirements of any such motion.
In any event, defendant did not ask for a ruling from the trial court on her nonstatutory motion. "[T]he party who . . . made the motion must make an effort to have the court actually rule, and . . . when the point is not pressed and is forgotten the party will be deemed to have waived or abandoned the point and may not raise the issue on appeal. [Citations.]" (People v. Brewer (2000) 81 Cal.App.4th 442, 461-462.) No exception to that rule is available. (People v. Rowland (1992) 4 Cal.4th 238, 259.) Defendant has thus not preserved for appeal the issues relating to her argument of nonstatutory grounds as a basis for vacating the judgment.
DISPOSITION
The order denying defendant's motion to vacate the judgment in the 1995 case is reversed and is remanded to permit the trial court to consider defendant's motion in light of all the evidence, including the reporter's transcript of the of the plea and sentencing hearing of May 8, 1995. The order denying defendant's motion to vacate the judgment in the 1997 case is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________________ J.
CHAVEZ
We concur:
________________________________ , Acting P. J.
DOI TODD
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ASHMANN-GERST