P. v. Hernandez
Filed 10/8/13 P. v. Hernandez CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE DANIEL HERNANDEZ,
Defendant and Appellant.
B244561
(Los Angeles
County
Super. Ct.
No. BA 025484)
APPEAL from
a judgment of the Superior Court
of
County, Barbara R. Johnson, Judge. Dismissed.
Cabrera
& Hart, Michael S. Cabrera and Kristen M. Hart for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews, Roberta L. Davis and William Shin, Deputy Attorneys General, for
Plaintiff and Respondent.
* * * * * *
Appellant Jose Daniel Hernandez appeals the trial court’s
denial of a motion to vacate a 22-year-old conviction for one count of
(cocaine) for sale (Health & Saf. Code, § 11351), which followed his
guilty plea. He argues he was not adequately
advised of the immigration consequences of his plea as required by Penal Code
section 1016.5.
title="">[1] Because a certificate of probable cause is
required to appeal the denial of a motion to vacate based on section 1016.5 (
489 (Placencia)), and because the
trial court denied appellant’s request for a certificate, we dismiss the
appeal.
FACTUAL AND PROCEDURAL HISTORY
On October 16, 1990, appellant was charged with
one count of felony possession or purchase for sale of a controlled substance
(cocaine) (Health & Saf. Code, § 11351). On November 13,
1990,
appellant pled guilty and was sentenced to 180 days in county jail and three
years’ probation. He was subsequently
found in violation of his probation on July 14,
1994,
for possessing a controlled substance for sale and was sentenced to two years
in state prison.
On August 21,
2012,
appellant filed a petition for writ of
guilty plea pursuant to section 1016.5.
In support of the motion, appellant filed a declaration explaining: “I, Jose Hernandez, write this letter because
I was arrested about 15 years ago for possession of narcotics. This is something I am not proud of and I
truly regret. Had I known that this
conviction would affect my immigration status here in the U.S., I would have fought for my
case instead of pleading to the charges.
But I do not recall being told by the judge or the attorney that these
charges could affect my status and be deported.
Over the years I have dedicated myself to being a better person. I am the father of six children and a
husband, for which I work hard everyday.
I have managed my own trucking company, I sponsor a soccer team to set
an example to the children of never giving up and that we can achieve our
dreams.†Because the reporter’s
transcript of the 1990 guilty plea was destroyed long ago pursuant to law, the
only available record of his plea was contained in three minute orders. In the minute orders, a box was checked off
by hand stating, “Defendant advised of possible effects of plea on any
alien/citizenship/probation/parole status,†and in the additional conditions of
probation, a handwritten note stated, “If deported, re-enter the United States only on a legal basis.â€
On September 10,
2012,
the trial court held a hearing and denied the motion: “I think that there is substantial
compliance. I think that we don’t have
any -- a prima [facie] case has been made.
We don’t have any records. It’s
been 20 years. And in that, this is not
the only offense that[] he’s committed.
So we don’t know what happened in ’93 either. [¶]
The motion is denied.â€
Appellant filed a notice of appeal
and requested a certificate of probable cause on September 24, which was
denied on September 25. The trial
court sent him a letter on October 2 indicating his notice of appeal was
deemed “Received but not filed†and “Inoperative†because his request for a
certificate of probable cause was denied and because another appeal was filed
on the same day in the same case, but the name on that appeal did not match his
name as reflected in court records.
Thereafter, appellant filed another notice of appeal on October 5,
2012, apparently to correct the name issue, but he did not request another
certificate of probable cause. On
December 4, this court deemed the appeal to be from a statutory motion to
vacate judgment brought under section 1016.5, citing People v. Limon (2009) 179 Cal.App.4th 1514, 1516, footnote 2, indicating
an order denying a section 1016.5 motion is appealable. Although not in the record, appellant claims
he filed another request for a certificate of probable cause on June 26,
2013, which was denied on July 1, 2013.
Appellant also filed two petitions for a writ of mandate challenging the
denial of a certificate of probable cause.
We denied those peititons on July 31, 2013. (Hernandez
v. Superior Court, B249435, B249750.)
Thus, appellant purports to appeal from an order for which no
certificate of probable cause has been issued.
DISCUSSION
The Attorney General urges us to
dismiss appellant’s appeal because a certificate
of probable cause was required and appellant’s requests for a certificate
were denied. Appellant does not address
this contention in his briefs, but instead argues at length that his appeal was
timely pursuant to Rules of Court, rule 8.304(b). Both appellant’s notices of appeal were
timely, and at least appellant’s first request for a certificate of probable
cause was timely. (See Rules of Court,
rule 8.308(a).) However, we agree with
the Attorney General a certificate of probable cause was required and appellant’s
appeal must be dismissed.
Under
section 1016.5, subdivision (a), prior to accepting a guilty plea the trial
court must advise the defendant that a conviction may have various immigration
consequences, including deportation, exclusion from admission to the United
States, or denial of naturalization. If
the trial court fails to do so, and the defendant shows the conviction may have
the consequence of deportation or exclusion, “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.†(§ 1016.5, subd. (b).) The denial of a section 1016.5 motion to
vacate a plea is an appealable order. (
887 (Totari).)
To
appeal from a guilty plea, however, section 1237.5 requires the defendant
obtain a certificate of probable cause from the trial court.
perfecting an appeal from a judgment based on a plea of guilty, and not to the
grounds upon which such an appeal may be taken.†(People
v. Ribero (1971) 4 Cal.3d 55, 63, superseded by statute on another point as
stated in In re Chavez (2003) 30
Cal.4th 643, 656.) It does not apply to
errors that occur after a plea has been entered. (People
v. Johnson (2009) 47 Cal.4th 668, 678.)
However, “[i]t has long been established that issues going to the
validity of a plea require compliance with section 1237.5. [Citation.]
Thus, for example, a certificate must be obtained when a defendant
claims that a plea was induced by misrepresentations of a fundamental nature
[citation] or that the plea was entered at a time when the defendant was
mentally incompetent [citation].
Similarly, a certificate is required when a defendant claims that
warnings regarding the effect of a guilty plea on the right to appeal were
inadequate.†(People v. Panizzon (1996) 13 Cal.4th 68, 76.) In determining whether section 1237.5
applies, the critical inquiry is whether the issue on appeal is in substance a
challenge to the validity of the plea, in which case the requirements of section
1237.5 must be met. (
Whether
compliance with section 1237.5 is necessary to perfect an appeal from an order
denying a section 1016.5 motion was exactly the issue before the court in
court concluded compliance was required, reasoning that an appeal from
denial of a section 1016.5 motion to vacate is based on the claim that the
trial court failed to give the requisite advisements “which necessarily
precedes the entry of the plea and affects the validity of the plea.†(Placencia,
supra, 194 Cal.App.4th at p. 494.)
Requiring compliance does not impede the defendant’s right to appeal,
the court explained, because if the trial court wrongfully refuses to issue a
certificate, the defendant may obtain relief through a writ of mandate. (Id.
at p. 495.) Indeed, appellant filed
writ petitions here, although they were denied.
We find the reasoning of the court in Placencia persuasive and adopt it here.
Appellant
cites Totari for the proposition the
order denying his section 1016.5 motion is an appealable order. He is correct. (Totari,
supra, 28 Cal.4th at p. 887.)
In Totari, however, the
defendant obtained a certificate of probable cause preliminary to appealing the
denial of his section 1016.5 motion to vacate.
The Court of Appeal dismissed the appeal on the grounds that the order
was nonappealable. Our Supreme Court
reversed, concluding that denial of a section 1016.5 motion to vacate was an
appealable order. (Totari, at pp. 886-887.)
But whether a certificate of probable cause is required to perfect an
appeal from a denial of a section 1016.5 motion to vacate was decidedly not at
issue in Totari, as the opinion makes
clear the defendant obtained one. “‘It
is axiomatic that cases are not authority for propositions not
considered.’†(People v. Jennings (2010) 50 Cal.4th 616, 684.) Thus, Totari
does not stand for the proposition that a certificate is or is not required to
appeal from a denial of a section 1016.5 motion. (People
v. Rodriguez (2012) 208 Cal.App.4th 998, 1000; Placencia, supra, 194 Cal.App.4th at pp. 493-494.)
DISPOSITION
Defendant’s appeal is dismissed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J. RUBIN,
J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] This same issue is pending before our
Supreme Court in People v. Arriaga (2011)
201 Cal.App.4th 429, review granted Febuary 22, 2012, S199339.
