P. v. Jimenez
Filed 6/24/13 P. v. Jimenez CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RUBEN wilfide JIMENEZ,
Defendant and Appellant.
D062580
(Super. Ct.
No. CR61972)
APPEAL from
an order of the Superior Court
of
County, Robert F. O'Neill, Judge. Affirmed.
Patrick
Morgan Ford for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Sabrina Y. Lane-Erwin and Michael
T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
In 1983,
Ruben Wilfide Jimenez entered a negotiated guilty plea to
Code, § 11350) and was placed on probation for a period of three
years. In 2012, Jimenez filed a
erred in concluding that it lacked jurisdiction to rule on the motion. We affirm.
BACKGROUND
At the
February 1983 change of plea hearing, at which Jimenez and five codefendants
entered guilty pleas, Jimenez was represented by attorney Ronald J.
Brahms. Jimenez initialed and signed a
change of plea form stating that he had read and understood each of the
enumerated items on the form, that Brahms had explained each item and that he
had discussed each item with Brahms. One
of the items on the change of plea form described the possible immigration
consequences of a guilty plea. That item
states: "If [the defendant] is not
a citizen, [a guilty plea] may result in deportation, exclusion from admission
[illegible] United States,
or denial of naturalization as an American citizen."
Two of
Jimenez's seven codefendants were assisted by a Spanish language interpreter
during the hearing. Jimenez testified
that he could read, write and understand English. The judge who presided at the hearing recited
the immigration consequences of the plea and obtained Jimenez's personal waiver
of his constitutional rights. Jimenez
testified that he had discussed the case with Brahms, that he was satisfied
with Brahms's representation and that he had had "plenty time" to
talk with Brahms about the case. The
following exchange ensued between the judge and Jimenez.
"Q I have before
me a change of plea form which, after question 15, is signed Ruben
[Jimenez]. Is that your signature?
"A Yeah, that's
my signature.
"Q When you
signed this form, was it filled out like it is now?
"A Yes, I did.
"Q Before
signing this form, did you read it and go over it and did you understand it?
"A Yes, sir.
"Q Is everything
on this form true and correct?
"A It's true.
"Q Do you have
any questions about anything on this form, what's happening here now, or
anything about this case?
"A No
questions."
Attorney
Brahms told the judge that he had had sufficient time to discuss the case with
Jimenez, and said that he had fully discussed with Jimenez the possible
consequences of a guilty plea. After
finding that Jimenez understood the consequences, the judge accepted the
plea.
In March
1983, the judge placed Jimenez on probation for a period of three years. In March 1986, another judge revoked,
reinstated and extended Jimenez's probation to March 1988.
In 2010,
Jimenez applied for legal residency in the United
States.
His application was denied and removal proceedings were instituted. In 2011, Jimenez retained an immigration
attorney. The immigration attorney filed
an appeal with the Board of Immigration Appeals, challenging an order for
Jimenez's removal from the United States.
In May
2012, Jimenez filed a motion to withdraw his guilty plea on the ground that he
had not been advised of the immigration consequences of the plea (Pen. Code,
§ 1016.5). In a declaration
accompanying the motion, Jimenez stated:
"I found out that this nearly 30[-]year[-]old conviction is going
to deport me. In 2011, I found this out
after I applied for Legal Permanent Residence status under my US
citizen daughter. I had no idea about
this. The next thing I knew, I was
placed in deportation proceedings.
[¶] [N]o one explained this to me then, at the time of this
conviction or when I had my probation violation in 1986." Jimenez did not state in his declaration that he had been unable to
understand English at the time he entered his plea, nor did he state that he
had applied for legal residency prior to 2011.
At the
August 2012 hearing on the motion to withdraw his guilty plea, Jimenez testified
that at the time he entered the plea, he could not read English, he could not
speak English, except for "yes, no, little things," and "[i]f
they talk real fast, I can't get it."
He also testified that he had applied for permanent residence status in
2001 or 2002 and had been told to wait 10 years "[b]ecause it was not a
probation" or "because the case I had" or because of the guilty
plea. He had been told to "wait
until [10] years and be good and be, you know, a good citizen." He did not know why the waiting period was 10
years. Jimenez testified that after he
submitted his second residency application in 2010, he learned that his criminal conviction would
result in deportation.
Attorney
Brahms testified that he did not remember representing Jimenez. Brahms said that his custom and habit in 1983
was to explain a change of plea form to a client; read the form to the client,
or have the client read it; have the client initial and sign the form; and to
use an interpreter when there was a language barrier.
In its
ruling on the plea withdrawal motion, the court noted that Jimenez was present
at the change of plea hearing when the judge said to two of Jimenez's
codefendants, "[Y]ou may understand some English. I'm sure you do. But we either have to conduct the proceedings
in English [or] Spanish and we can't do both.
Since you apparently are more fluent in Spanish, we will ask you to use
the Spanish language." The court
noted that there had been an interpreter for two of the defendants during the hearing
and observed that "[t]here is no evidence [Jimenez] did not hear the
exchange between the interpreter and the other defendants who were afforded the
use of an interpreter." The court
also discussed Jimenez's lack of diligence in bringing the motion, and whether
the court had jurisdiction to hear the motion, which the court characterized as
"the bottom line" issue. The court stated that it believed it did not
have jurisdiction to entertain the motion to withdraw the guilty plea because Jimenez
was no longer on probation. The court
concluded by saying, "the motion is denied for the reasons given by the
court."
DISCUSSION
Jimenez is
correct in arguing that the court erroneously ruled that it did not have
jurisdiction to hear the motion because Jimenez was no longer on
probation. (In re Griffin
(1967) 67 Cal.2d 343, 347 ["Neither the probation statutes nor the cases
applying them support a holding that expiration of the probationary period
terminates the court's jurisdiction of the subject matter. The statutes themselves contemplate that such
fundamental jurisdiction continues, for they provide for the court's
determination of certain matters after the end of the probationary
term."].) However, "[b]ecause
we must affirm if the court's ruling was correct on any basis, we consider
alternative bases for the order."
v. Mbaabu (2013) 213 Cal.App.4th 1139, 1148, fn. 4.)
"To
prevail on a motion to vacate under [Penal Code] 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." (
884.) Assuming, arguendo, that Jimenez
was diligent in bringing the motion, the change of plea form and the reporter's
transcript of the change of plea hearing establish that Jimenez was advised
that he might be deported as a consequence of his guilty plea. Jimenez represented to the judge that he
understood English. Jimenez's responses
were generally appropriate, demonstrating that he understood the judge's
questions. Jimenez checked the
applicable boxes on the change of plea form and said that he had discussed the
matter thoroughly with attorney Brahms.
The record
thus establishes that Jimenez was properly advised of the immigration
consequences of his guilty plea. He
therefore cannot prevail on a motion to withdraw his guilty plea.
DISPOSITION
The order
is affirmed.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
name="_ftn1" title="">[1]
Respondent argues that the court
denied the motion on the basis that it was untimely. Although the court did discuss diligence and
timeliness, the record does not support the conclusion that the court denied
the motion on that basis.
