P. v. Felix

Filed 11/5/09 P. v. Felix 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Thomas N. Douglass, Jr., Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Marcella O. McLaughlin, Deputy Attorneys General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant Juan Carlos Felix pled guilty to transporting cocaine (Health & Saf. Code, 11352) and possessing cocaine for the purpose of sale (Health & Saf. Code, 11351). In return, he was placed on probation on various terms and conditions, including serving 90 days in county jail. On appeal, he contends (1) the trial court erred in denying his motion to withdraw his guilty plea, and (2) he was denied effective assistance of counsel at the time he entered his guilty plea. We reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND^[1]

During a valid search of defendants vehicle, Riverside County sheriffs deputies found 23 packages of cocaine, each weighing .5 grams, along with $467 in cash. Defendant admitted that the drugs were his but denied possessing them for sale.

After he pled guilty to the two stated drug-related offenses, defendant brought a motion to withdraw his guilty plea, claiming his counsel was ineffective for failing to inform him of the adverse immigration consequences of pleading guilty. The People subsequently filed an opposition.

Following a hearing on the motion, the trial court denied defendants motion to withdraw his plea. Defendant was thereafter sentenced pursuant to the terms of his plea agreement.

On March 26, 2008, defendant filed a notice of appeal and request for certificate of probable cause. His request for certificate of probable cause was granted on February 20, 2009.

II

DISCUSSION

A. Motion to Withdraw Guilty Plea

Defendant contends the trial court abused its discretion in denying his motion to withdraw his guilty plea. Specifically, he claims his plea was not a knowing and voluntary waiver of his rights, as he was not advised of the immigration consequences of his plea pursuant to Penal Code section 1016.5.^[2] We disagree.

Section 1016.5, subdivision (a) requires the court, prior to accepting a guilty or no contest plea, to advise the defendant as follows: 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. In the event these advisements are not given by the court, 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 [the] 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).)

There are three elements to a successful motion by a defendant to withdraw his or her plea based upon the absence of advisements required under section 1016.5. [A] defendant must establish: (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, i.e., if properly advised, he or she would not have pleaded guilty or nolo contendere. [Citation.] (People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.)

We review the trial courts decision denying defendants motion to withdraw his plea under section 1016.5 for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) 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.] (People v. Quesada (1991) 230 Cal.App.3d 525, 533.)

Here, the record indicates that the court did not orally advise defendant of the immigration consequences of defendants plea pursuant to section 1016.5. However, in People v. Ramirez (1999) 71 Cal.App.4th 519 (Ramirez), the court concluded section 1016.5 does not require a trial court to orally advise a defendant of the possible immigration consequences of a guilty plea; the written change of plea form signed by the defendant satisfied the section 1016.5 requirements. (Ramirez, at pp. 521-523.) [T]here is no language [in section 1016.5] which states the advisements must be verbal, only that they must appear on the record and must be given by the court. (Id. at p. 521.)

Citing In re Ibarra (1983) 34 Cal.3d 277, the Ramirez court noted that the Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court. (Ramirez, supra, 71 Cal.App.4th at p. 521.) Although the court in Ibarra expressly addressed the constitutionally mandated advisements required under Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] and In re Tahl (1969) 1 Cal.3d 122, Ramirez concluded its reasoning was equally applicable to legislatively-mandated advisements. (Ramirez, at pp. 521-522.) Ramirez also stated, As the Third Appellate District noted in People v. Quesada[, supra,] 230 Cal.App.3d 525 [281 Cal.Rptr. 426], the legislative purpose of section 1016.5 is to ensure a defendant is advised of the immigration consequences of his plea and given an opportunity to consider them. So long as the advisements are given, the language of the advisements appears in the record for appellate consideration of their adequacy, and the trial court satisfies itself that the defendant understood the advisements and had an opportunity to discuss the consequences with counsel, the legislative purpose of section 1016.5 is met. [Citation.] We agree with the analysis in Quesada. (Id. at p. 522.)

Because the record contained a copy of the change of plea form signed by the defendant, which warned of all three possible immigration consequences, and showed that the trial court asked the defendant whether he reviewed the form with his attorney and understood it, the Ramirez court affirmed the trial courts denial of the defendants section 1016.5 motion. (Ramirez, supra, 71 Cal.App.4th at p. 523.)

According to Ramirez, neither the language nor the purpose of section 1016.5 requires a trial court to orally advise a defendant of the possible immigration consequences before accepting a guilty plea. Rather, a written change of plea form describing those possible immigration consequences may, if duly signed and understood by the defendant after having an opportunity to review it and ask questions of his counsel, satisfy the section 1016.5 requirements. As with the Boykin-Tahl rule discussed in Ibarra, the underlying purpose of section 1016.5 is to ensure the defendant has actual knowledge of the possible immigration consequences of a guilty plea and has had an opportunity to make an intelligent choice to plead guilty. (In re Ibarra, supra, 34 Cal.3d at p. 285; Ramirez, supra, 71 Cal.App.4th at p. 522; People v. Quesada, supra, 230 Cal.App.3d at pp. 535-536; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.) A ritual oral recitation by a trial court of the possible immigration consequences of a guilty plea adds little to a defendants actual knowledge of those consequences if the defendant has previously read and understood the written form describing those possible consequences and discussed the forms advisements with his or her counsel. (Cf. Ibarra, at p. 286.)

Defendant argues that Ramirez was wrongly decided and that a trial court must orally advise a defendant of the possible immigration consequences of pleading guilty because section 1016.5, subdivision (a) provides the court shall administer that advisement on the record to the defendant. However, the use of the phrase on the record does not preclude placement on the record of a signed change of plea form and subsequent questioning of the defendant by the court regarding that form. Although matters are often placed on the record by means of oral recitations, that phrase, especially in the context of section 1016.5, does not preclude other means of placing the section 1016.5 advisement on the record. (Cf. In re Ibarra, supra, 34 Cal.3d at p. 286.) We agree with Ramirezs analysis in this respect and do not believe Ramirez was wrongly decided.

Defendant also appears to argue the trial court must orally advise a defendant of the possible immigration consequences of pleading guilty because section 1016.5, subdivision (a) provides the court shall administer those advisements. However, we are unpersuaded that the word administer precludes compliance with section 1016.5 by means of a written change of plea form and subsequent questioning of the defendant by the court regarding that form, as occurred in this case. The record here reflects that the trial court did conduct a sufficient inquiry into defendants review and understanding of the change of plea form and the opportunity to discuss it with counsel. At the change of plea hearing, the trial court confirmed defendant had signed the change of plea form, had read and understood the form, and did not have any questions of the court regarding the forms contents. The court also confirmed that all of the initials and signature on the form were defendants and that the form was read and explained to him in Spanish before he had signed it. Defendants counsel joined in his waiver of rights.

The record also contains a copy of defendants change of plea form. The immigration admonishment in the plea form read as follows: 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. On that form, defendants counsel also represented: I am the attorney for the defendant. I am satisfied that (1) the defendant understands [his] constitutional rights and understand[s] that a guilty plea would be a waiver of these rights; (2) the defendant has had an adequate opportunity to discuss [his] case with me, including any defenses [he] may have to the charges; and (3) the defendant understands the consequences of [his] guilty plea. I join in the decision of the defendant to enter a guilty plea. Moreover, at the motion to withdraw his guilty plea, defendants trial counsel testified that he had discussed the case with defendant. Specifically, counsel stated that he and defendant had discussed the fact that defendant was not a citizen of the United States and that, by admitting to a felony drug conviction, defendant was subject to deportation. Counsel further explained that he had discussed with defendant the process by which the Immigration and Naturalization Service might initiate deportation proceedings.

The record supports a finding that defendant understood the immigration consequences and had an opportunity to discuss it with his counsel. The trial court did not abuse its discretion by denying defendants motion to withdraw his guilty plea.

Even if we assume, for the sake of argument, that the court erred in failing to orally advise defendant of the immigration consequences pursuant to section 1016.5, defendant cannot establish prejudice.

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. (People v. Totari (2002) 28 Cal.4th 876, 884.) This question is a factual one. (Zamudio, supra, 23 Cal.4th at p. 210.) Accordingly, on review we apply the substantial evidence rule. (People v. Quesada, supra, 230 Cal.App.3d at p. 533.) Under this rule, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v. Johnson (1980) 26 Cal.3d 557, 578.) Rather, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . . If the circumstances reasonably justify the trial courts findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. (Quesada, at p. 533.)

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 . . . . (People v. Totari, supra, 28 Cal.4th at p. 884.)

Defendant contends he was prejudiced by the courts failure to comply with section 1016.5 because, as he also declared below, he would not have pled guilty had [he] known [he] would be deported. He further asserts, I have a wife and two children born in this country. My wife is four months pregnant with our third child.

There is no merit to this contention. As indicated above, defendant executed the plea waiver form in which he acknowledged the immigration consequences of his plea, and defendants trial counsel stated that he had explained to defendant the immigration consequences of such a plea. As defendant does not dispute, from these facts it is reasonably inferable that defendant understood the consequences of his plea. And the court reasonably could have concluded that defendant was still aware of these consequences when he entered his plea; therefore it was not reasonably probable that defendant would not have pled guilty to the charges had the court, at the time defendant entered his plea, orally advised defendant of the immigration consequences pursuant to section 1016.5 and inquired further of defendant. Thus, substantial evidence supports the denial of defendants motion to withdraw his guilty plea.

B. Ineffective Assistance of Counsel

Defendant also argues his motion to withdraw his plea should have been granted because he received ineffective assistance of counsel when his attorney failed to properly and adequately advise him of the particular immigration consequences of his plea.

Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] It is well settled that where ineffective assistance of counsel results in the defendants decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.]

To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.] (In re Resendiz (2001) 25 Cal.4th 230, 239, fn. omitted.)

Assuming, arguendo, that defendant has satisfied the performance prong of his ineffective assistance claim, he cannot prevail because he has not demonstrated prejudice. A defendant who pled guilty demonstrates prejudice caused by counsels incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsels incompetence, he would not have pled guilty and would have insisted on proceeding to trial. (In re Resendiz, supra, 25 Cal.4th at p. 253.)

Defendant claims that, if counsel had informed him he would be deported as a consequence of his guilty plea, he would not have pled guilty. As the Supreme Court has recognized, a noncitizen defendant with family residing legally in the United States understandably may view immigration consequences as the only one that could affect his calculations regarding the advisability of pleading guilty to criminal charges. (Zamudio, supra, 23 Cal.4th at pp. 206-207.) However, defendants assertion he would not have pled guilty if given competent advice must be corroborated independently by objective evidence. (In re Resendiz, supra, 25 Cal.4th at p. 253.) The record before us fails to disclose any such evidence.

In determining whether a defendant, with effective assistance, would have accepted [or rejected a plea] offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. (In re Resendiz, supra, 25 Cal.4th at p. 253.)

Defendant has not argued that his counsel inaccurately communicated the plea offer, nor has he adduced any substantial evidence suggesting the prosecutor might ultimately have agreed to a plea that would have allowed him to avoid adverse immigration consequences. [T]he burden remains [defendants] to prove by a preponderance of the evidence his entitlement to relief. (In re Resendiz, supra, 25 Cal.4th at p. 254.) He was charged with two counts of drug-related offenses (Health & Saf. Code, 11351 & 11352) after officers found 23 packages of cocaine, each weighing .5 grams, along with $467 in cash in the car he was driving when it was stopped for a traffic violation. Defendant faced a lengthy prison term, but, as a consequence of his plea bargain, he received a suspended sentence and a three-year probation term with only 90 days of local custody. He has not claimed innocence or offered evidence to show how he might have been able to avoid conviction or what specific defenses might have been available to him at trial. Finally, the choice that defendant would have faced at the time he was considering whether to plead would not have been between pleading guilty and being deported, on the one hand, and going to trial and avoiding deportation on the other. By insisting on trial, defendant would have retained a theoretical possibility of evading the conviction that made him deportable and excludable for a period of time, but a conviction following trial would have subjected him to the same immigration consequences.

Based on our examination of the entire record, we are not persuaded that it is reasonably probable defendant would have forgone the distinctly favorable outcome he obtained by pleading guilty and insisted instead on proceeding to trial had he been fully advised about the immigration consequences of pleading guilty. (See In re Resendiz, supra, 25 Cal.4th at pp. 253-254.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

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^[1] The factual background is taken from the probation officers report.

^[2] All future statutory references are to the Penal Code unless otherwise stated.