P. v. Cervantes





Filed 1/27/11 P. v. Cervantes CA6




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CORDERO CERVANTES, Defendant and Appellant.

H035436 (Santa Clara County Super. Ct. Nos. 130470, 137229)

I. Statement of the Case
In 1989, defendant Armando Cordero Cervantes pleaded no contest to two counts of burglary and possession of burglary tools. That same year, he also pleaded no contest to possession of marijuana for sale. In 2009, he filed petitions under Penal Code section 1016.5 to vacate the two prior judgments alleging that the court had failed to advise him of the possible immigration consequences of his pleas.[1] The court denied the petitions, and defendant appeals from that order. He claims the trial court erroneously concluded that the lack of advisements was harmless.
We affirm the order.
II. Convictions and Immigration Consequences
Vehicle Burglary[2]
On May 29, 1989, someone broke into the vehicles of Blanca Sandoval and Jose Advincule and stolen their car stereos. On that day, defendant approached Cindy Nielson and her friend outside Nielson’s apartment, which was in the same area of San Jose where Sandoval and Advincule lived. He took three car stereos from under his jacket and offered to sell them for $30. Nielson walked away. Her friend declined the offer. Sometime later, defendant approached Nielson again. He wanted a bag to put the stereos in and asked if she would keep them in her apartment for while. He smelled of alcohol, and she thought he was crazy. She declined, and defendant left. Another friend of Nielson called the police.
San Jose Police Officer Steve Papenfuhs arrived, and Nielson told him about defendant and the car stereos. Officer Papenfuhs then observed defendant pull a car stereo from underneath his jacket. He also saw wire cutters, pliers, and a screwdriver sticking out of defendant’s pocket. He then arrested defendant.
Around that time, San Jose Police Officer Joseph Padgett was in the area responding to a reported auto burglary. He met with Officer Papenfuhs, who had just arrested defendant. Officer Padgett searched the area and found car stereo equipment hidden in some bushes. Sandoval and Advincule identified the stereo equipment that the officers had recovered.
Defendant was charged with two counts of second degree burglary and possession of burglary tools. (§ 459, 460.2, 466.) He pleaded no contest to these charges and was placed on probation on condition he serve 180 days in county jail.[3]
Possession of Marijuana for Sale[4]
On November 28, 1989, San Jose Police Officer Robert Lobach was patrolling in an unmarked car in downtown San Jose. He saw defendant get off a bicycle, take a brown paper bag from under his coat, and put it into a garbage can. Defendant then looked around, sat down, and started reading a newspaper. A few minutes later, a man arrived and spoke with defendant. They nodded to each other, and defendant retrieved the paper bag and took out an orange bindle. The man gave him money for it and walked away. Defendant them put the bag back into the garbage can. Officer Lobach, who was in plain clothes, got out of his car, walked over to the garbage can, and removed the paper bag. Inside were numerous orange bindles. Defendant approached and said the bag was his. Officer Lobach returned the bag and arrested defendant. He searched defendant and found the money he had received from the man. Officer Lobach testified that the remaining bindles in the bag contained marijuana, and they were possessed for sale.
Defendant was charged with selling marijuana and possession of marijuana for sale. It was also alleged that he had two recent prior felony convictions for second degree burglary. (Health & Saf. Code, §§ 11360, subd. (a); 11359.) Defendant negotiated a deal with the prosecutor under which he agreed to plead no contest to possession for sale in exchange for the dismissal of the other charge and prior conviction allegations and a sentence of one year in jail. He was again placed on probation.
Additional Burglary Conviction and Probation Violation
In 1991, defendant was convicted of another second degree burglary and sentenced to three years in prison. The court revoked probation in the prior burglary and marijuana cases and imposed concurrent two-year terms on those convictions.
Immigration Consequences of the No-Contest Pleas
In 1994, presumably after defendant had served his sentence, he was deported to Mexico based on the 1989 convictions. Defendant later reentered United States. Eventually, he was caught and deported again. He reentered and was deported four more times in 1999, 2004, 2005, and 2007. Each time, deportation was based on the two 1989 convictions. After his deportation in 2007, defendant reentered the United States again. He was caught and charged with illegal entry in violation of federal law. In November 2008, he pleaded guilty in federal court, and in January 2009, he was sentenced to two years in federal prison.
III. Motion to Vacate
On October 22, 2009, defendant filed petitions under section 1016.5 to allow him to withdraw his no-contest pleas. He alleged that (1) he was a Mexican citizen who had been a legal resident in the United States since 1968; (2) in 1989, he was convicted of second degree burglary and possession of marijuana for sale; and (3) he was ordered deported and was currently in the process of appealing that order. In a declaration, defendant asserted that before he entered his pleas, no one advised him that they could have immigration consequences, including deportation. He explained that he was not aware of section 1016.5 until his most recent deportation proceeding.
In opposition, the district attorney argued that the petitions were untimely and that the lack of advisements was not prejudicial.
In reply, defendant argued that every time he was arrested and deported, he was processed rapidly and held in locations where there was no opportunity to get immigration information. However, after pleading guilty to illegal entry and being sent to federal prison in Lompoc, he asked around, and a fellow inmate told him about section 1016.5. Defendant further argued that if the prosecutors had offered him immigration-safe plea bargains in 1989, “he would not be in the position he is in now.”
The trial court denied the petitions. The court presumed that the required advisements had not been given and rejected the prosecutor’s claim that the petitions were untimely. However, it concluded that the lack of advisements was not prejudicial. The court disbelieved defendant’s implicit claim that had he known of possible immigration consequences, he either would have rejected the otherwise highly beneficial plea offers and insisted on a bargain that avoided any such consequences; or he would have insisted on going to trial. The court opined that defendant had no defense to the burglary and marijuana charges; he most likely would have been convicted after a trial; and as a result, he would have had to face potentially more severe sentences and the same immigration consequences. The court further opined that although the facts of the marijuana case might have allowed for a plea to an alternative charge of transporting marijuana, which under previous versions of the immigration law might not have carried potential immigration consequences, it was not clear that such would be the case under the current version of the law. As a result, the possibility of pleading to a charge of transporting marijuana did not establish prejudice from the lack of advisement in the marijuana case.

IV. Applicable Principles
“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.]” (People v. Totari (2002) 28 Cal.4th 876, 884; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200, 209-210.)
On appeal from an order denying a section 1016.5, we review the trial court’s ruling for abuse of discretion. (People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.) We will uphold that ruling unless the record demonstrates that the court exercised its discretion “in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice constitutes an abuse of discretion. [Citation.]” (Id. at p. 1518.)
V. Discussion
Defendant claims the court abused its discretion in concluding that the lack of advisements was not prejudicial.
Concerning the burglary convictions, defendant notes that no one saw him commit the offenses, and there was some inconsistency in Officer Papenfuh’s identification of the make of Sandoval’s car stereo, which he saw defendant take from underneath his jacket. Accordingly, defendant argues that jurors might have had a reasonable doubt about whether defendant stole Sandoval’s stereo. Defendant further argues that the burglary tools were sufficiently ordinary to support an inference that he possessed them for some innocent purpose. Finally, he argues that the evidence that he smelled of alcohol might have supported an intoxication defense.
Concerning the marijuana charge, defendant argues that the case against him was weakened because (1) the police did not detain the man who had bought the bindle or seize it from him and (2) there was no testing evidence to conclusively establish that the remaining bindles contained marijuana.
Next, defendant argues that in both cases there were other immigration-safe dispositions that could have been pursued. Defendant opines that he could have pleaded no contest to offering to transport marijuana, which would not have had the immigration consequences that possession for sale had. Alternatively, he argues that he could have pleaded no contest to an attempted marijuana sale, which, at the time of the offense, also did not have immigration consequences. Concerning the burglary charge, defendant submits that he could have pleaded no contest to a sanitized charge of burglary by admitting unlawful entry to commit a felony, rather than “theft.”
Last, defendant notes that had he suspected there might be immigration consequences, he could have sought a judicial recommendation against deportation (JRAD). He argues that it is reasonable to think that the trial court would have granted such a request.
We agree with the trial court that the evidence of burglary based on entry and theft of Sandoval’s and Advincule’s car stereos was overwhelming. Defendant was caught trying to sell them, Sandoval and Advincule testified that their cars were burglarized and their stereos taken, they identified the stereos, and defendant had burglary tools in his pocket.
Given this evidence, defendant would have gained little by rejecting the plea bargain and going to trial. In our view, it is wishful speculation to think that the discrepancy in Officer Papenfuh’s description of one of the stolen stereos might have raised a reasonable doubt concerning whether defendant burglarized Sandoval’s and Advincule’s cars and stole the stereos that they identified at the preliminary hearing. Moreover, given defendant’s efforts to sell the stereos and his possession of tools, we consider it even more far-fetched to think that the very limited testimony that defendant smelled of alcohol could have ripened into a convincing intoxication defense—i.e., that at time defendant broke into Sandoval’s and Advincule’s vehicles, he was intoxicated and did not specifically intend to steal the car stereos that he did take and tried to sell.
Next, we find it equally speculative to assert that the prosecutor would have agreed to let defendant plead to sanitized second degree burglary offenses to avoid possible immigration consequences. Testimony at the preliminary hearing established not only defendant’s unlawful entry into at least two vehicles with intent to steal but also his actual theft of the stereos and his subsequent efforts to sell them. Given the strength of the incriminating evidence and the lack of any real defense and the extent of defendant’s culpable conduct, we fail to see, and defendant does not offer a persuasive reason why the prosecutor would have agreed to hide a significant aspect of defendant’s criminal conduct. In any event, even if defendant had been allowed to plead to sanitized burglaries, those convictions would still have posed the same potential immigration consequences. As the Attorney General points out, in determining the nature of an offense for immigration purposes, authorities may look to the complaint, and in this case, the complaint charged entry with intent to commit theft. (See Bunty Ngaeth v. Mukasey (9th Cir. 2008) 545 F.3d 796, 801-802.)
Concerning the marijuana conviction, we again agree with the trial court that the incriminating evidence was overwhelming. A police officer watched defendant put a paper bag into a garbage can, encounter a person, retrieve a bindle from the paper bag, and exchange it for cash. Defendant told the officer the bag was his. And the bag contained many more bindles.
Given this evidence, we find it to be pure speculation to think that the failure to detain defendant’s customer and retrieve the bindle he had bought might have raised a reasonable doubt concerning whether defendant possessed the remaining numerous bindles for sale. Indeed, defendant fails to explain how information about the customer might have helped the defense. Defendant notes that the material in the bindles was not scientifically tested. However, formal testing was unnecessary for purposes of the preliminary hearing. Officer Lobach was qualified as an expert concerning the identification of marijuana and its possession for sale, and he opined that the bindles contained marijuana. In light of this testimony, it is inconceivable that defendant would have pleaded no contest if he had an arguable defense based on the fact that the bindles did not contain marijuana. Indeed, had there been any reason to question the contents of bindles after the preliminary hearing, it is reasonable to assume the prosecutor would have had them formally tested before trial.
Moreover, because there was overwhelming, if not conclusive, evidence that defendant transported marijuana, possessed it for sale, and sold one bindle, we fail to see why the prosecutor might have agreed to dismiss the two serious charges and more generously allow defendant to plead to simple transportation. In other words, defendant does not convincingly explain why it is reasonably likely the prosecutor would have offered defendant an arguably immigration-safe plea bargain.
In any event, a plea to mere transportation would not necessarily have avoided the immigration consequence. As the Attorney General points out, immigration authorities can take action based solely on reason to believe that a person is involved in drug trafficking. The lack of a drug conviction or a conviction for a non-trafficking offense is not controlling. (Garces v. Unites States Atty. Gen. (11th Cir. 2010) 611 F.3d 1337.) Thus, here, even if defendant had been allowed to plead to merely transporting marijuana, Officer Lobach’s testimony at the preliminary hearing constituted compelling evidence that defendant was engaged in drug trafficking. And if Officer Lobach were unavailable to testify at an immigration proceeding, that preliminary hearing transcript would provide compelling cause to believe that defendant was a drug trafficker. (See Fed.Rules.Evid. § 804, subd. (b)(1) [hearsay exception for former testimony of unavailable witness]; e.g., United States v. Yida (9th Cir. 2007) 498 F.3d 945, 949.) Indeed, even if the conviction for possession for sale were vacated, authorities could move to deport defendant based on reason to believe that defendant was a drug trafficker. (See Garces v. Unites States Atty. Gen., supra, 611 F.3d 1337.)
Under the circumstances, defendant has failed to convince us that it was arbitrary, capricious, or unreasonable for the trial court to disbelieve defendant’s assertion that he would have rejected the generous plea offers to the burglary and marijuana charges, which resulted in probation. Nor does defendant convince us that it was arbitrary, capricious, absurd, or even unreasonable for the court to find that the failure to advise defendant concerning the potential immigration consequences of his pleas was harmless. In short, therefore, we find no abuse of discretion.

V. Disposition[5]
The order denying defendant’s petitions to vacate his prior convictions is affirmed.



______________________________________
RUSHING, P.J.






WE CONCUR:






____________________________________
PREMO, J.






____________________________________
ELIA, J.



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