Opinion
E066857
01-04-2018
THE PEOPLE, Plaintiff and Respondent, v. PAULA MARTINEZ YURIAR, Defendant and Appellant.
Law Offices of Gary Finn and Gary Finn for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ICR19064) OPINION APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed. Law Offices of Gary Finn and Gary Finn for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On December 6, 1994, a felony complaint charged defendant and appellant Paula Martinez Yuriar with possession of methamphetamine for sale under Health and Safety Code section 11378 (count 1), and transportation of methamphetamine under Health and Safety Code section 11379 (count 2). A weight enhancement alleged that the amount of methamphetamine exceeded one kilogram within the meaning of Health and Safety Code section 11370.4, subdivision (b).
On March 17, 1995, defendant pled guilty to count 1. In exchange, count 2 and the enhancement were dismissed. The trial court sentenced defendant to 36 months of probation. As part of the plea, defendant initialed and signed the advisement of rights, which included the following advisement regarding immigration consequences: "If I am not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United Sates, or denial of naturalization pursuant to the laws of the United States."
More than 21 years later, on June 20, 2016, defendant filed a motion to withdraw her plea (motion). The motion asserted that she was not properly advised of the immigration consequences of her plea under Penal Code section 1016.5 (§ 1016.5), and alternatively, that relief was warranted under Penal Code section 1385 because her counsel failed to properly inform her of the immigration consequences. The motion included the signature page (page No. 13) of a declaration signed by defendant; no other pages of the declaration were included.
The People opposed the motion arguing that defendant had not established reasonable diligence by failing to file the motion earlier; the record demonstrated that defendant had received the necessary advisement regarding the immigration consequences of her plea; defendant could not raise a claim of ineffective assistance of counsel; and the defense failed to show how the interests of justice would be furthered by dismissal.
In her reply to the opposition, defendant attached her complete declaration. In the declaration, defendant asserted that her attorney never discussed immigration consequences with her, and that because she maintained her innocence she believed there would be no immigration consequences. Two years before defendant filed her motion, defendant's daughter had filed papers for defendant to become a lawful permanent resident of the United States. Although her visa was approved, defendant learned that she was not entitled to lawful permanent resident status because of her conviction. Removal proceedings had also been initiated against defendant.
The trial court denied defendant's motion in a written order filed on August 22, 2016. The court provided: "The court finds defendant did not establish reasonable diligence in not filing the motion earlier. Defendant's explanation that she did not learn of the true consequences of her plea until she attempted to apply for Lawful Permanent Residence back in 2014 is not a sufficient justification for her delay." The court found defendant had received the immigration advisement required by section 1016.5, and she understood the consequences of her plea. Her declaration, according to the trial court, was tantamount to an admission that she was aware of the immigration advisement but was only unclear of the consequences.
On September 12, 2016, defendant filed a notice of appeal challenging the validity of her plea. The trial court granted a certificate of probable cause.
B. FACTUAL HISTORY
Defendant pled guilty under People v. West (1970) 3 Cal.3rd 595. The factual basis of her plea was taken from the police report; the police report has not been made part of the record on appeal.
DISCUSSION
A. THE TRIAL COURT PROPERLY DENIED DEFENDANT'S MOTION TO WITHDRAW HER GUILTY PLEA
On appeal, defendant contends that the trial court erred in denying her motion to withdraw her guilty plea.
At the outset, the People claim that defendant's motion is untimely because it was filed "more than two decades after her plea." We reject the People's argument because the statute contains no time bar. Next, the People contend that even if defendant "had pled facts sufficient to show her motion was otherwise timely, substantial evidence demonstrated that she received the advisements under Penal Code section 1016.5." We agree with the People.
1. SECTION 1016.5
Section 1016.5 provides, in relevant part: "(a) Prior to acceptance of a plea of guilty or nolo contendere 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) 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 . . . 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.
"[¶] . . . [¶]
"(d) The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea."
"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.] 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. [Citation.] 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. [Citation.] 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." (People v. Totari (2002) 28 Cal.4th 876, 884.)
We consider each requirement in turn, reviewing the trial court's ruling for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio). As we have previously explained, in the context of a ruling on a motion brought under section 1016.5, "the reviewing court may not disturb the trial court's order in the absence of abuse of discretion. [Citations.] An abuse of discretion occurs if the court acted 'in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.' [Citations.] The defendant must establish by clear and convincing evidence the grounds for withdrawing a guilty plea." (People v. Suon (1999) 76 Cal.App.4th 1, 4.)
Although an advisement under section 1016.5 need not track the statutory language exactly and only substantial compliance with section 1016.5 is required (Zamudio, supra, 23 Cal.4th at pp. 207-208; People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174), a defendant nonetheless must be specifically advised of all three separate immigration consequences of his/her plea, namely, deportation, exclusion from admission, and denial of naturalization. (Gutierrez, at p. 174).
It has been held that "the legislative purpose of ensuring a defendant is aware of the possible immigration consequences of a guilty plea . . . is best and most reasonably served by construing the word 'court' as used in section 1016.5 to refer to the tribunal in which defendant enters his plea. Under this construction, the advisement referred to therein may be given through any of the numerous individuals acting on behalf of that tribunal, including the judge [or] counsel . . . So long as the legislative purpose is advanced by having some person acting on behalf of the tribunal actually advise defendant of the immigration consequences of his plea and that advice is reflected 'on the record,' the actual adviser is immaterial. . . . [¶] . . . [¶] Nor need the statutory admonition 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 to ensure that defendant actually reads and understands it." (People v. Quesada (1991) 230 Cal.App.3d 525, 535-536.)
There is no requirement that the trial court verbally advise defendant of immigration consequences; the written plea form is sufficient. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521-522.) Because the written change of plea form included the three immigration consequences set forth in the statute there was no obligation on the part of the trial court to provide a verbal advisement. A trial "court 'may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment.' " (People v. Gutierrez, supra, 106 Cal.App.4th at p. 175.)
In this case, the record shows that defendant received the requisite advisement. As previously provided, defendant initialed and signed an advisement regarding the consequences of her plea. That advisement specifically included the operative language quoted from section 1016.5, subdivision (a). An interpreter also signed the form, attesting that she had translated the form for defendant and defendant stated that she understood its contents prior to signing. Defendant's attorney also signed the form stating that defendant understood the consequences of her plea. In executing the plea, defendant affirmed that she initialed the various spaces; that she understood the rights she was giving up, as well as the consequences of her plea; and that she was giving up her rights freely and voluntarily. This record establishes that defendant affirmatively represented she understood the change of plea form; affirmatively represented she had personally initialed and signed the change of plea form, including the paragraph on immigration consequences; and affirmatively represented she had no further questions about the consequences of entering a plea. This record establishes that defendant was adequately advised of the consequences of her plea in 1994 because the record demonstrates that the trial court questioned defendant on whether she understood the form, which included the immigration consequences advisement, and defendant affirmatively represented she understood. (People v. Quesada, supra, 230 Cal.App.3d at p. 536.)
Defendant, however, claims that the court allowed her to make her decision to plead guilty prior to her receiving a valid advisement. That is inaccurate. Defendant signed the form that advised her of her rights and the consequences of her plea; the court then went over that form with defendant and ensured that she had in fact signed and initialed the form and that she understood the consequences of her plea. Thereafter, the court took defendant's plea.
The trial court, in denying the motion to withdraw the guilty plea, stated: "The court further finds that the record supports a finding that defendant received the immigration advisement required by PC § 1016.5. Even though the sentencing judge did not have defendant specifically acknowledge the immigration advisement, the record supports a finding that when asked, defendant stated she signed and initialed the plea form, she understood her rights, she was voluntarily giving up those rights, she understood the consequences of her plea, and that she understood that violation of her terms and conditions of probation could result in her being sentenced to prison. Defendant did not waive her right to appeal. In addition, the interpreter stated under penalty of perjury that she translated the form to defendant and her attorney also stated he was satisfied defendant understood the consequences of her plea. [¶] Defendant had the benefit of representation and presumably advice of competent counsel. No allegation of misrepresentation or duress was raised by defendant. The fact that when defendant pled she stated: 'Guilty under People versus West[,]' is further evidence that she received competent advice."
Because we conclude the record establishes defendant was fully advised in 1994 of the immigration consequences of her plea, we need not address the other two factors, which are required to be established in order to prevail on a section 1016.5 motion. (See People v. Totari, supra, 28 Cal.4th at p. 884.)
The California Supreme Court's recent opinion in People v. Patterson (2017) 2 Cal.5th 885, does not mandate a different result. In Patterson, unlike in defendant's case, the defendant was seeking to withdraw a plea pursuant to Penal Code section 1018 and alleged ineffective assistance of counsel. The defendant provided proof that he faced certain deportation; proof that defense counsel had not adequately advised of the certainty of an immigration consequence; and the trial court did not hold an evidentiary hearing. The defendant acknowledged that he received the standard advisement on immigration and did not contend the trial court was required under section 1016.5 to allow him to withdraw his guilty plea. (Patterson, at p. 897, fn. 5.) In the instant case, defendant sought to withdraw her plea under section 1016.5, not Penal Code section 1018, despite receiving the standard advisement; an evidentiary hearing on defendant's motion was held by the trial court; and defendant failed to present evidence of misadvisement or inadequate advisement of immigration consequences at the time of her plea. Under the facts of this case, the trial court did not abuse its discretion in denying defendant's section 1016.5 motion. (Zamudio, supra, 23 Cal.4th 183 at p. 192.)
2. WRIT OF CORAM NOBIS
In the alternative, defendant contends that the immigration consequences were not adequately explained to her and that she was "under the impression" that because she pled nolo contendere under Alford v. North Carolina (1970) 400 U.S. 25, she would not suffer adverse immigration consequences.
"A motion to vacate the judgment is recognized as equivalent to a petition for the common law remedy of a writ of error coram nobis." (People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1146.) A defendant cannot sidestep the limitations on coram nobis simply by relabeling a motion as a non-statutory motion to vacate the judgement. (People v. Shokur (2012) 205 Cal.App.4th 1398, 1403-1404.) A lower court's ruling on a petition for the writ is reviewed under the abuse of discretion standard. (People v. Kim (2009) 45 Cal.4th 1078, 1095-1096 (Kim).)
As the Supreme Court observed in Kim, it long ago recognized the limited nature of this writ to correct errors of fact: "Quoting from an old treatise, we opined the writ of error coram nobis ' "does not lie to correct any error in the judgment of the court nor to contradict or put in issue any fact directly passed upon and affirmed by the judgement itself. If this could be, there would be no end of litigation. . . . The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment; and which without fault or negligence of the party, was not presented to the court." ' (Kim, supra, 45 Cal.4th at p. 1092.)
The Kim court noted that due to the narrowness of the remedy, it applies only "where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, [and] '[t]he remedy does not lie to enable the court to correct errors of law.' " (Kim, supra, 45 Cal.4th at p. 1093.) This limitation applies to constitutional claims as well, including claims that counsel was ineffective in failing to admonish a defendant of the immigration consequences of his conviction. (Id. at p. 1095, 1104; see also People v. Mbaabu, supra, 213 Cal.App.4th at p. 1147.)
In Kim, the defendant sought to vacate his guilty plea, contending his counsel had rendered ineffective assistance of counsel in failing to investigate the immigration consequences stemming from the defendant's guilty plea. The Supreme Court rejected this claim. After finding that the defendant's claim was procedurally barred, the court went on to conclude that it lacked substantive merit as well. As the court reasoned, "That a claim of ineffective assistance of counsel, which relates more to a mistake of law than of fact, is an inappropriate ground for relief on coram nobis has long been the rule." (Kim, supra, 45 Cal.4th at p. 1104.) Although noting that an attorney has a constitutional duty not to affirmatively misadvise a client regarding the immigration consequences, "any violation in this regard should be raised in a motion for a new trial or in a petition for a writ of habeas corpus." (Ibid.)
Under Kim, defendant cannot bring a non-statutory motion to withdraw her plea based on misunderstanding of the legal consequences of her plea. As the trial court correctly noted, "defendant's declaration is tantamount to an admission that she was aware of the immigration advisement but was only unclear of the consequences."
Moreover, defendant missed the deadline for a statutory motion to withdraw her plea by over 20 years. (Pen. Code, § 1018; cf. People v. Patterson, supra, 2 Cal.5th 885 [within six months of judgment, defendant may move to withdraw plea based on ignorance or mistake under Penal Code section 1018 notwithstanding standard advisal under section 1016.5].) Finally, because defendant is not in custody, she may not bring a writ of habeas corpus. (In re Azurin (2001) 87 Cal.App.4th 20, 24-25; Pen. Code, § 1473, subd. (a).) Therefore, defendant is not entitled to relief based on any statutory or non-statutory motions, or common law writs.
DISPOSITION
The order denying defendant's section 1016.5 motion to vacate her 1994 conviction is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.