P. v. Arellano
Filed 7/9/13 P.
v. Arellano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
HUGO ARELLANO,
Defendant
and Appellant.
E056774
(Super.Ct.No.
BLF003439)
OPINION
APPEAL
from the Superior Court of
County. B. J. Bjork, Judge. Affirmed.
Jesse
A. Moorman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
On
February 10, 2005, defendant and appellant Hugo Arellano pled guilty to two
felony counts of bringing a controlled
substance into a prison or jail.
(Pen. Code, § 4573.)
name="_ftnref1" title="">[1] The trial court sentenced defendant to 36
months of probation. On June 8, 2012,
defendant filed a motion to vacate the judgment and withdraw the plea. The court denied the motion. On appeal, defendant contends the court erred
in denying his motion because he was not advised of the immigration
consequences of his plea. We affirm the
judgment.
On
February 1, 2005, the People charged defendant by complaint of a felony attempt
to bring controlled substances into Chuckawalla Valley State Prison on January
29, 2005 (count 1—§ 4573); felony attempt to bring a controlled substance into
Riverside County Jail in Blythe, also on January 29, 2005 (count 2—§ 4573); and
misdemeanor resisting arrest (count 3—§ 148, subd. (a)). Defendant entered into a plea agreement
whereby he would plead guilty to counts 1 and 2; count 3 would be dismissed,
and he would be granted 36 months of probation.
Defendant’s
counsel did not concur with defendant’s plea and refused to sign the plea
form. On the plea form, defendant
initialed all the provisions regarding advisement and waiver of his
rights. However, defendant did not
initial the provision acknowledging he had read and understood the five
consequences of the plea, one of which provided, “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 States, or denial of
naturalization pursuant to the laws of the United States.â€
Defendant
signed and dated a provision below the aforementioned sections indicating, “I
have read and understand each statement that I have initialed.†Defendant’s interpreter signed and dated the
statement at the bottom of the form, which read, “Having been duly sworn, I
have truly translated this form to the defendant in the Spanish language. The defendant has stated that he/she fully
understood the contents of the form prior to signing.†Defendant initialed another portion of the
plea agreement that read: “I have had an
adequate time to discuss my case with my attorney, including . . . the
consequences of any guilty plea[.]â€
At the oral
taking of defendant’s plea, defense
counsel reiterated he did not join in the plea, but was “satisfied that my
client understands and he is intelligently waiving[.]†Defendant informed the court he had gone over
the plea with both his attorney and the interpreter. The court asked defendant if he understood
“the consequences, including immigration consequences[.]†Defendant replied he did. After taking defendant’s plea, the court
engaged in the following colloquy with defendant:
“The
Court: Did the interpreter go over with you
all these terms and conditions?
“The
Defendant: Yes.
“The
Court: Do you understand those terms and
conditions?
“The
Defendant: Yes.
“The
Court: Do you agree to comply with those
terms and conditions?
“The
Defendant: Yes.â€
The court
then sentenced defendant to 36 months of probation with 18 days of jail time,
for which defendant received 12 days of actual and six days of conduct credit
(time served).
DISCUSSION
Defendant
contends the court erred in denying his motion to vacate the judgment and
withdraw his plea because the record fails to provide he was advised of the
immigration consequences of his plea.
Therefore, he maintains the People failed to overcome their burden of
proof of clear and convincing evidence on the rebuttable presumption defendant
was not so advised where the record fails to establish such advisement. We disagree and, therefore, affirm the
judgment.
“Penal
Code section 1016.5 requires that,
before accepting a plea of guilty or nolo contendere to any criminal offense, the
trial court must advise the defendant that if he or she is not a United States
citizen, conviction of the offense may result in deportation, exclusion from
admission to
denial of naturalization. The statute allows the defendant to move to vacate
the judgment if the trial court fails to give the required advisements.†(People
v. Totari (2002) 28 Cal.4th 876, 879, fn. omitted.) “[A] motion
to vacate a judgment under section 1016.5 may be brought in the trial court after judgment has been
imposed.†(Ibid.)
“To
prevail on a motion
to vacate under section 1016.5, a defendant
must establish that (1) he or she was not properly
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.]†(
“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.†(§ 1016.5, subd. (b).)
“The
advisement need not be in the statutory language, and substantial compliance is
all that is required, ‘as long as the defendant is specifically advised of all
three separate immigration consequences of his plea.’ [Citation.]â€
(People v. Castro-Vasquez
(2007) 148 Cal.App.4th 1240, 1244; People
v. Soriano (1987) 194 Cal.App.3d 1470, 1475.) Indeed, the court is not obligated to
verbally advise defendant of the potential immigration consequences of a guilty
plea. A validly executed plea agreement
that adequately advises defendant of possible immigration consequences from
defendant’s plea is sufficient advisement to comply with statutory
requirements. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521-523;
Cal.App.4th 169, 175.)
“An
order denying a section 1016.5 motion will withstand appellate review unless
the record shows a clear abuse of discretion.
[Citations.] An exercise of a
court’s discretion in an arbitrary, capricious, or patently absurd manner that
results in a manifest miscarriage of justice constitutes an abuse of
discretion. [Citation.]†(People
v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.) The court, deciding whether the defendant has
made a sufficient showing under section 1016.5, “is the trier of fact and . . .
the judge of the credibility of the witnesses or affiants. Consequently, it must resolve conflicting
factual questions and draw the resulting inferences. [Citation.]â€
(People v. Quesada (1991) 230
Cal.App.3d 525, 533.)
Here, the record
demonstrates substantial compliance with the requirement that defendant be
advised of the immigration consequences of his plea. First, defendant’s interpreter signed the
agreement indicating she had translated the entire form to defendant, not
merely the portions defendant initialed or signed. Moreover, defendant’s signature averred he
understood the contents of the entire form before he signed it. The plea form contains a specific provision
regarding the consequences of the plea:
“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 States, or denial of naturalization pursuant to the laws of the
United States.†Thus, although he did
not initial the provision regarding the consequences of his plea, substantial
evidence supports the inference defendant was read and understood the
immigration consequences of his plea.
Second,
defendant initialed the portion of the plea
agreement indicating he had had sufficient time to discuss the case,
“including . . . the consequences of any guilty plea†with his attorney. This necessarily includes any immigration
consequences of his plea. Third,
although not joining in the plea, defendant’s counsel noted, “I am satisfied
that my client understands and he is intelligently waiving[.]†Thus, defense counsel indicated he had
discussed the plea and its consequences with defendant and that defendant
understood the agreement. Fourth, the
court inquired of defendant whether he had gone over the entire plea form with
both his attorney and interpreter; defendant replied he had. Fifth, the court specifically, orally
inquired whether defendant understood the immigration consequences of his plea;
defendant replied he did.
Sixth,
after taking defendant’s plea, the court expressly queried defendant whether
the interpreter had gone over the terms and conditions of the plea with him and
whether he understood and agreed to them; defendant responded that the
interpreter had, and he did. Thus, the
record establishes defendant had both written and verbal notice of the
immigration consequences of the plea, which were discussed with him by his
interpreter, his counsel, and the court.
Although it would have been preferable to have defendant’s initials on
the consequences portion of the plea and/or the court’s specific advisement of
all three potential immigration consequences of the plea, the record establishes
substantial compliance with the advisement requirement.
Finally,
the court below indicated it had reviewed all pertinent portions of the record
regarding defendant’s plea, including the preliminary hearing, which is not
contained in this record. The court
placed particular emphasis on defendant’s affirmative response to the plea
court’s specific query whether he understood the immigration consequences of
his plea. The court further noted
defendant had gone over the plea agreement, which warned of the immigration
consequences of the plea, with both his counsel and interpreter. Thus, the court’s denial of defendant’s
motion was within its discretion.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
