P. v. Bongato
Filed 3/26/13 P. v. Bongato CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CONRADO DE VERA BONGATO,
Defendant and Appellant.
D060283
(Super. Ct.
No. SCS197724)
APPEAL from
an order of the Superior Court
of
County, Stephanie Sontag, Judge. Appeal dismissed.
Conrado De
Vera Bongato appeals from an order denying his Penal Code
section 1016.5 motion to vacate his conviction following his guilty plea to
(§ 273.5, subd. (a)). Because
Bongato did not obtain a certificate of
probable cause (§ 1237.5), we dismiss the appeal.
FACTUAL AND
PROCEDURAL BACKGROUND
Bongato is
a citizen of the Philippines
who has been living in the United States
since 1985. In December 2005, Bongato
pleaded guilty to inflicting corporal injury on his ex-spouse. The factual basis for the plea indicates he
had "head butted" her, causing an injury to her forehead.
At the time
of his plea, Bongato was represented by counsel, and both signed the plea
form. Bongato also initialed a box on
the form that states: "I understand
that if I am not a U.S.
citizen, this plea of Guilty/No Contest may result in my removal/deportation,
exclusion from admission to the U.S.
and denial of naturalization.
Additionally, if this plea is to an 'Aggravated Felony' listed on the
back of this form, then I will be deported, excluded from admission to the U.S.,
and denied naturalization." (Bold
omitted.) Bongato's attorney
averred: "I, the attorney for the
defendant in the above-entitled case, personally read and explained to the
defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses
with the defendant, and the consequences of this plea, including any
immigration consequences. I personally
observed the defendant fill in and initial each item, or read and initial each
item to acknowledge his/her understanding and waivers. I observed the defendant date and sign this
form and any addendum. I concur in the
defendant's plea and waiver of constitutional rights."
At the plea
hearing, the trial court questioned Bongato as to whether he had signed the
plea form and understood his constitutional
rights, and Bongato affirmed he entered into the plea and waived those
rights freely and voluntarily, and not based on any promises. The court recited the terms of the plea,
including the 365 days in custody, and Bongato stated he understood that was
his plea bargain. It found Bongato was
in full possession of his faculties, understood the nature of the proceeding,
and freely and voluntarily waived his constitutional rights.
The court suspended
imposition of sentence and placed Bongato on three years formal probation, with
365 days in local custody.
In February
2010, Bongato petitioned the court to modify his sentence from 365 to 364 days,
so he would not suffer the adverse immigration consequences of a conviction for
an aggravated felony. The petition was
denied, and this court dismissed Bongato's appeal from that order as from a
nonappealable order.
name="_ftnref2" title="">[2]
In May
2011, Bongato moved to vacate his conviction on grounds the court failed to
advise him of the immigration consequences of his plea, he failed to fully
understand the consequences of his plea, and ineffective assistance of his
counsel. The court denied the motion. It first found Bongato had not acted with
reasonable diligence in bringing the motion and had engaged in piecemeal
litigation, warranting summary reversal.
It further found on the merits Bongato had not shown entitlement to
relief under section 1016.5. Finally the
court ruled it lacked jurisdiction to consider his claim of ineffective
assistance of counsel.
In August
2011, Bongato filed an amended notice of appeal along with a request for a
Bongato had not shown reasonable constitutional, jurisdictional, or other
grounds for appeal relating to the legality of the proceedings.
DISCUSSION
Challenging
each of the trial court's findings, Bongato contends the court abused its
discretion by denying his motion to vacate the conviction. He argues that in taking his plea, the court
failed to question him about the printed advice as to immigration consequences
and that the plea colloquy reveals he did not actually say he read and
understood the plea form. Bongato
maintains he was prejudiced by the court's improper advisement. Finally Bongato argues his appointed counsel
was prejudicially ineffective when he agreed to an erroneous characterization
of the posture of his case, asked to be relieved as counsel, and allowed the
matter to proceed as a regular habeas.
The People
respond that the appeal must be dismissed because Bongato did not obtain a
certificate of probable cause. We agree.
Section
1237.5 provides: "No appeal shall
be taken by the defendant from a judgment of conviction upon a plea of guilty
or nolo contendere, . . . except where both of the following are met: [¶]
(a) The defendant has filed with
the trial court a written statement, executed under oath or penalty of perjury
showing reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings.
[¶] (b) The trial court has executed and filed a
certificate of probable cause for such appeal with the clerk of the
court."
It is well
established that "[a] defendant must obtain a certificate of probable
cause in order to appeal from the denial of a
though such a motion involves a proceeding that occurs after the guilty
plea." (People v. Johnson
(2009) 47 Cal.4th 668, 679; People v. Placencia (2011) 194 Cal.App.4th
489, 494 (Placencia).) Without a certificate of probable cause
defendant is not entitled to review of the validity of his plea. (People v. Johnson, at p. 675; Placencia, at p.
494; see People v. Rodriquez (2012)
208 Cal.App.4th 998, 1000.)
failure to advise of the penal consequences of a defendant's guilty plea
including the failure to advise of immigration consequences, or mistaken
advisement regarding potential sentencing.
(Placencia, supra, 194 Cal.App.4th at p.
494; People v. Pearson (1981) 120 Cal.App.3d 782, 791.) Where a certificate of probable cause is
required but has not been obtained, we "may not proceed to the merits of
the appeal, but must order dismissal thereof." (People
v. Mendez (1999) 19 Cal.4th 1084, 1096.)
In
California Supreme Court's strict application of section 1237.5 in
on an integral part of the plea agreement, even if it purports to challenge
only the sentence imposed, was in substance a challenge to the validity of the
plea. (Johnson, at pp. 678-679.)
Johnson reviewed the primary purpose of section 1237.5—to prevent
the taking of frivolous appeals based on the asserted invalidity of guilty
pleas—and explained that the determinative factor was " 'the substance of
the error being challenged, not the time at which the hearing was conducted.'
" (Id. at p. 681.) According to
the court, a "contrary holding would 'invite such motions [to withdraw the
plea] as a matter of course, and would be wholly contrary to the purpose of
section 1237.5.' " (Johnson, at p. 679.) Thus, the court held a certificate was
required for defendant's claim on appeal that he was denied effective
assistance of counsel prior to sentencing in connection with his
at pp. 679-680.)
Like the Johnson court, the Court of Appeal in Placencia looked to the substance of the appeal: "An appeal from a denial of a section
1016.5 motion is technically from an 'order made after judgment' (§ 1237, subd.
(b)) and not 'from a judgment of conviction upon a plea' of guilty or nolo
contendere (§ 1237.5). But a section
1016.5 motion follows a claimed failure by the trial court to advise the
defendant of the immigration consequences of a plea of guilty or nolo contendere
which necessarily precedes the entry of the plea and affects the validity of
the plea." (Placencia, 194 Cal.App.4th at p. 494.)
Bongato
urges us to hold that Placencia was
wrongly decided, that it "improperly conflates the applicable statutory
directives" and uses flawed logic.
Specifically, Bongato argues Placencia
ignores the plain language of section 1237, subdivision (a), which requires
a certificate of probable cause only when a final judgment is "upon a plea
of guilty or nolo contendere," and there is no such corresponding right
under subdivision (b) of section 1237, under which his appeal falls. He argues, "If the Legislature had
intended that the certificate of probable cause be required for all appeals
which attack the validity of the plea, no matter whether they flow from a
judgment of conviction or an order after judgment affecting the defendant's
substantial rights, it could have so provided."
We are not
persuaded. The Johnson court conducted a thorough review of the legislative intent
behind the certificate requirement, and its reasoning demonstrates the
correctness of Placencia's
approach. An appeal from the denial of a
motion to vacate a guilty plea is as much of a challenge to the plea as is an
appeal from the denial of a motion to withdraw a guilty plea, which requires a
certificate of probable cause. "If
[Bongato] could circumvent [the certificate requirement] by placing a different
label on his . . . motion, the purpose of section 1237.5 would be
undermined. [Citation.] Similarly, the existence of an express
statutory basis for a motion to challenge a trial court's failure to give an
immigration advisement does not warrant creation of a new exception to the
certificate of probable cause requirement.
. . . [S]ection 1237.5 does not impede a defendant's right to appeal any
nonfrivolous issue if he or she seeks and obtains a certificate of probable
cause. [It] concerns the procedure for
perfecting an appeal from a judgment based on a plea of guilty or nolo
contendere; it does not limit the grounds upon which an appeal may be
taken." (Placencia, supra, 194
Cal.App.4th at p. 494.)
name="_ftnref4" title="">[4] If the trial court wrongfully refused to
issue a certificate, Bongato's relief was to file a petition for writ of
mandate. (Id. at p. 495.)
DISPOSITION
The appeal
is dismissed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code.
name="_ftn2" title="">[2] We have granted Bongato's unopposed request for judicial
notice of the appellate record in Bongato's prior appeal, People v. Bongato, D056929.
