P. v.
Filed 1/11/13 P.
v. Moreno CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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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.
JOSE CARDENAS MORENO,
Defendant and Appellant.
H037566
(Santa Clara County
Super. Ct. No.
C9923666)
Defendant
Jose Cardenas Moreno appeals from an order denying his
Penal Code section 1016.5.
name="_ftnref1" title="">[1] In 1999, defendant pleaded no contest to
threats to commit a crime resulting in death or great bodily
obstructing telephone or cable lines (§ 591), and carrying a concealed and
stolen firearm (former § 12025, subd. (a)(2)).
Defendant was detained several years later by an immigration official,
who informed him that he was no longer eligible to remain in the United States
due to his criminal convictions. Defendant then filed a motion to vacate the
1999 judgment on the ground that the trial court failed to advise him of the
immigration consequences of his plea.
The trial court denied the motion.
We conclude that the trial court did not abuse its discretion in denying
the motion and affirm the order.
On
March 20, 1999, Officer Young responded to a report that a man with a gun had
threatened his wife. The officer spoke
with Elena Garcia,
title="">[3]
who stated that she and defendant were separated. Earlier that day, defendant confronted Garcia
at a party to talk about their relationship.
She told him that they had nothing to talk about, because he would never
change. Defendant replied, “You know we
swore under God till death do us part.â€
In response to her comment that he should be happy that she was happy
with her new boyfriend, defendant said, “OK, I’ll settle that problem.†That evening, Garcia heard defendant’s car
drive near the house, and her son Juan DeLeon went outside to confront
him. Garcia also heard defendant yelling
for her and her boyfriend David Fuentes to come outside. Her son told her that defendant had a
gun. She then heard someone on the side
of the house, and as her daughter was attempting to use the telephone, the
telephone line went “dead.†A police
officer confirmed that the telephone box was damaged and Garcia stated that the
damage was recent.
DeLeon
told Officer Bays that there had been ongoing problems between his mother and
defendant. Approximately two months
earlier, when defendant learned that his mother had a boyfriend, he called the
house every day, verbally abused her, came to the house, and harassed her. Defendant started to threaten violence
against her and Fuentes within the last two weeks. On March 19, 1999,
defendant threatened to kill Fuentes.
The following day, defendant came to Garcia’s house and told DeLeon’s
brother Steve that he was going to kill Fuentes and showed Steve his gun.
DeLeon
told the officer that he went outside to smoke a cigarette and saw defendant
park his car in the driveway. Defendant
asked him to get his mother. After
DeLeon asked him to leave, defendant said, “[G]et your mother and her
boyfriend,†then pulled out a gun and racked the slide. DeLeon entered the house and told his
mother. When DeLeon came back outside,
he told defendant to leave because his mother was not coming out. At that point, defendant walked to the side
of the house, tried to enter it through a window, and ripped the telephone line
out. Defendant then walked to the front
of the house, kicked the door, and yelled, “[G]et that dog out here.†Defendant also kicked Garcia’s and Fuentes’s
vehicles. As DeLeon walked to his
neighbor’s house to call the police, defendant left. DeLeon also gave the police a threatening
letter that defendant left on Fuentes’s vehicle. The letter stated that “he was going to
hurt/kill them . . . .â€
Defendant
was contacted by the police. After he
waived his Miranda
his vehicle away from Garcia’s residence because if he parked near her
residence she would not come out. When
he approached her residence on foot, his stepson DeLeon met him. Defendant asked his stepson to go inside and
call Garcia. DeLeon refused and
indicated that his mother did not want to talk to him. Defendant became angry and stated that he
knew that Fuentes was inside. He then
told DeLeon to get Fuentes and bring him out so that he could kill him. Defendant indicated that he did not show
DeLeon his firearm, but defendant believed that DeLeon knew that he carried one
for protection. After Garcia and Fuentes
refused to come out, defendant walked back to his vehicle and was eventually
arrested. Defendant told the police that
he was glad that they had arrived because he was not certain of what he was
capable of.
Police
searched defendant and found a loaded semi-automatic handgun. A records check of the gun revealed that it
was not registered to defendant.
However, the officer was unable to locate the registered owner’s address
or telephone number to determine whether defendant lawfully possessed the
firearm.
Defendant
admitted to his probation officer that he told DeLeon to tell Garcia’s
boyfriend to come outside, but DeLeon refused.
Defendant also admitted that he told DeLeon that he was going to “kill
the guy.†Defendant left, but then returned
because he thought “they might have come out of the house.†The police stopped him, and he was glad
because he “might have done something stupid.â€
Defendant denied breaking the telephone line and claimed that he found
the gun in a parking lot.
II. Procedural
Background
On
March 24, 1999, the district attorney filed a felony complaint that charged
defendant with threats to commit a crime resulting in death or great bodily
injury (§ 422 - count 1), injuring or obstructing telephone or cable lines (§
591 - count 2), and carrying a concealed and stolen firearm (former § 12025, subd.
(a)(2) - count 3).
On
April 19, 1999, defendant pleaded no contest to all three counts in exchange
for a disposition of no state prison
and a jail term of one year, which would be concurrent to any sanction imposed
due to his violation of probation in another case. On May 21, 1999, the trial court
placed defendant on probation for three years with various fines and
conditions, including a jail term of one year.
On
March 15, 2011, defendant filed a motion to vacate judgment pursuant to section
1016.5. In support of his motion,
defendant submitted his declaration in which he stated that he had been a
lawful permanent resident of the United States since 1988. In July 2010, he was
detained by an immigration official when he returned from a trip to
Mexico. At that time, he was informed
that he was no longer eligible to remain in the United States due to his 1999
convictions. According to defendant,
when he entered his no contest plea, he was not aware that the convictions
would have immigration consequences and if he had realized these consequences
he would have sought a different resolution to his case.
Defendant
also submitted a declaration by Saeed Ghaffari, an attorney with experience
practicing immigration law. Ghaffari
identified section 422 as a “crime involving moral turpitude,†thus rendering a
non-citizen inadmissible and subject to removal from the United States. Ghaffari also stated that when a defendant is
sentenced to one year or more for a section 422 conviction, the crime is
considered an “aggravated felony.â€
Conviction of an aggravated felony is a “ground for deportability, and
but for a few exceptions, the conviction ensures deportation, bars obtaining
new lawful status, and blocks hope of waiver or defense.†In pleading no contest to carrying a
concealed and stolen firearm (former 12025, subd. (a)(2)), defendant also
subjected himself to a deportation proceeding and his subsequent removal from
the United States. Due to these
convictions, defendant cannot naturalize to become a United States citizen and
he is subject to mandatory detention without bond. According to Ghaffari, “[i]t is doubtful that
had he been advised of the enormous immigration consequences of his plea, that
he would have accepted a plea bargain of this stature, and instead fought the
charges, or sought an alternative remedy.
A simple assault plea, for example, would have avoided many of these
consequences.â€
Defendant
submitted Garcia’s declaration in which she stated that she felt the March 20,
1999 incident “was blown out of proportion.â€
She further stated that defendant’s behavior towards her and others has
been “excellent†since he was released from jail and that he has “rehabilitated
himself into a wonderful human being.â€
Defendant also included character reference letters from people
associated with his employment as a landscaper, and proof of completion of a
domestic violence program. In addition,
defendant submitted an affidavit from the court reporter who transcribed the
hearing at which defendant entered his no contest plea. She stated that she no longer possessed her
notes for the hearing and thus was unable to provide a transcript.
At
the hearing on the motion to vacate judgment, Garcia testified that she and
defendant were married in 1997 and divorced in 2003. They were separated in March 1998. In March 1999, defendant was arrested at her
home. Defendant knocked on the door and
her son answered it. Her son told her
not to go outside until defendant was gone.
She did not see defendant or hear him threaten her. She did not see a gun. No one in her family had told her that
defendant had threatened to kill her or any of her family members. Defendant damaged the telephone line when he
stepped on it as he was trying to come into the house through the window. She did not remember that her son told her
that defendant had a loaded gun and was threatening to hurt her and/or her
boyfriend. She also did not remember a
note on her boyfriend’s car in which defendant threatened to kill her and her
boyfriend.
DeLeon
testified that he called the police on March 20, 1999. When defendant had arrived at their house,
defendant was drunk, had a gun, and wanted to speak to Garcia’s boyfriend. DeLeon went outside to calm him down. He called the police after defendant
left. Defendant did not threaten DeLeon,
Garcia, or her boyfriend. He remembered
that defendant had pulled out his gun.
Defendant was belligerent and kept repeating that he wanted to see
Garcia and Garcia’s boyfriend. Since the
phone was damaged by defendant, DeLeon went to a neighbor’s house to call the
police. He did not remember what he said
when he called the police.
The
trial court issued an order in which it denied the motion. The trial court found that the prosecution
had failed to rebut the presumption that the advisement of immigration
consequences had not been given. It then
concluded that defendant failed to establish prejudice, stating: “[I]t appears the District Attorney had a solid
case. Defendant has not really proposed
a defense and the few points in his favor were so weak that they would not have
led to a different plea offer. Defendant
has not shown what leverage or angle he could have pursued and therefore has
not shown he had anything to take to trial.
As noted above, the showing of prejudice that Defendant must make is
that he would have done something differently.
Because there has been no showing that Defendant had anything arguable
to work with his present claim cannot be accepted.â€
Defendant
contends that the trial court erred in denying his motion to vacate judgment
under section 1016.5.
Section 1016.5
requires that, before accepting a guilty or no contest plea, the trial court
must advise the defendant that the plea “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.†(§ 1016.5, subd. (a).)
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.]†(
884.)
We review the
trial court’s ruling under the abuse of discretion standard. (People
v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 192.) “An
exercise of a court’s discretion in an arbitrary, capricious, or patently
absurd manner that results in a manifest miscarriage of justice constitutes an
abuse of discretion. [Citation.]†(People
v. Limon (2009) 179 Cal.App.4th 1514, 1518.) “Moreover, a reviewing court must adopt the
trial court’s factual findings if substantial evidence supports them. [Citation.]â€
(People v. Fairbanks (1997) 16
Cal.4th 1223, 1254.) In deciding whether
the defendant has made an adequate showing under section 1016.5, the trial
court “is the trier of fact and . . . judge of the credibility of the witnesses
or affiants. Consequently, it must
resolve conflicting factual questions and draw the resulting inferences. [Citation.]â€
(People v. Quesada (1991) 230
Cal.App.3d 525, 533, (Quesada),
superseded by statute as stated in People
v. Totari (2003) 111 Cal.App.4th 1202, 1207, fn. 5.)
With
respect to the first element, there is a rebuttable presumption that the trial
court did not give the advisements when there is no court record of them. (§ 1016.5, subd. (b).)
by a preponderance of the evidence the nonexistence of the presumed fact, i.e.,
that the required advisements were given.
[Citations.]†(
plea was properly denied when the trial judge, who had no independent
recollection of the hearing, testified that his habit and custom in every case
was to inform the defendant of the immigration consequences pursuant to section
1061.5. (Id. at pp. 949-950.)
Here, the
prosecutor submitted a declaration stating that his habit and custom was to
check off a form concerning the advisements as they were given, and that he
checked them off in defendant’s case.
Relying on Dubon,
General argues that the prosecution met its burden to establish that the
required advisements had been given.
However, the
trial court reasoned that “[i]f the checkmark of an impartial courtroom clerk
is not good enough, People v.
Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244-1245, . . . then the
checkmark of an adversarial party does not suffice either.†Thus, the trial court made a factual
determination and concluded that the prosecution had failed to meet its
burden. (Quesada, supra, 230
Cal.App.3d at p. 533.) This court must
defer to the trial court on this finding.
(Ibid.) Accordingly, we reject the Attorney General’s
argument.
Since there is
no dispute as to the second element, that is, that defendant faces adverse
immigration consequences as a result of his convictions, we turn to the third
element of prejudice. Defendant contends
that had he been warned about these consequences, there was a reasonable probability
that he would not have pleaded no contest, because he could have negotiated a
plea agreement that would not have involved conviction of an aggravated
felony. He also claims that he could
have negotiated a sentence of 364 days or less by waiving his custody credits
or persuading the trial court to impose part of his one-year jail term in
connection with his violation of probation.
We conclude, however, that there was very little, if any, possibility
that the prosecutor or the trial court would have agreed to a more favorable
outcome if defendant had sought to negotiate one.
Defendant first
claims that the evidence against him as to each of the counts was not
strong. He points out that the jury
could have found that he did not have the requisite mental state for a
conviction of injuring or obstructing a telephone line, because “it is quite
possible [he] damaged the telephone line by accident as he clambered around on
the side of Ms. Garcia’s house.†Even
assuming that the evidence as to this count did not establish malice, we
disagree with defendant’s characterization of the evidence against him as to
the other counts.
As to count 3,
defendant asserts that there was no evidence that the firearm was stolen.
that the firearm was stolen, the evidence was undisputed that defendant
possessed a firearm under circumstances in which it was unlawful to do so. The police reports reveal at least three
firearm offenses, including one count of possession of a concealed loaded
firearm that was not registered to him and two counts of transportation of a
firearm in a vehicle. (See former §§
12023, 12025, subd. (a), 12031, subd. (a).)
Thus, if defendant had not entered his no contest plea at the complaint
stage, the prosecutor could have amended the complaint to charge one or more of
these offenses.
Defendant also
argues that none of his statements would have likely resulted in a conviction
for making criminal threats, because there was no evidence that Garcia ever
received threatening communications or experienced any sustained fear as a
result.
“In order to
prove a violation of section 422, the prosecution must establish all of the
following: (1) that the defendant
‘willfully threaten[ed] to commit a crime which will result in death or great
person,’ (2) that the defendant made the threat ‘with the specific intent that
the statement . . . is to be taken as a threat, even if there is no intent of
actually carrying it out,’ (3) that the threat—which may be ‘made verbally, in
writing, or by means of an electronic communication device’—was ‘on its face
and under the circumstances in which it [was] made, . . . so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a
gravity of purpose and an immediate prospect of execution of the threat,’ (4)
that the threat actually caused the person threatened ‘to be in sustained fear
for his or her own safety or for his or her immediate family’s safety,’ and (5)
that the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances. [Citation.]†(People
v. Toledo (2001) 26 Cal.4th 221, 227-228.)
“ ‘It is clear that the
nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat
be examined “on its face and under the circumstances in which it was
made.†The surrounding circumstances
must be examined to determine if the threat is real and genuine, a true
threat,’ and such threats must be ‘judged in their context.’ [Citations.]â€
(People v. Wilson (2010) 186
Cal.App.4th 789, 807.)
Here, the police
responded to a report that a man with a gun had threatened his wife. Defendant had been verbally abusing and
harassing Garcia for the two months prior to the incident and had recently
begun threatening violence against
her. The day before the incident, he
threatened to kill Fuentes and showed his gun to one of her sons. Earlier that day, defendant told Garcia that
he wanted to talk about their relationship and that he would “settle that
problem†of her boyfriend. Her son told
her that defendant had a gun as she listened to him yelling for her and her
boyfriend to come outside. Thus,
defendant’s words and conduct communicated to Garcia that if she did not resume
her relationship with him, he would harm her.
That he attempted to enter the house through the window and he caused
the telephone to cease functioning could only have increased her fear for her
safety. Moreover, the prosecutor could
have also charged a second count of criminal threats against Fuentes, who was
also in the house when defendant was threatening to kill him. In addition, the prosecutor could have
alleged that defendant was armed with a firearm while committing this offense
(§ 12022, subd. (a)).
In addition to
the very strong case against defendant, his criminal history would not have
made him a candidate for more favorable treatment by either the prosecutor or
the trial court. Though defendant had
not been previously convicted of a felony, his “criminal history, which began
in 1984, reveal[ed] 16 prior misdemeanor convictions for the following
offenses: Driving Under the Influence of
Alcohol (2); Driving Under the Influence with 0.08 Percent Blood Alcohol or
More (5); Driving on a Suspended/Revoked License (4); Unlicensed Driver (2);
Domestic Violence; Drunk in Public; and Animal Fighting.†The probation officer also noted that a
“review of the lethality risk assessment for future violence reveal[ed] the
defendant possesses 13 of the 21 lethality factors believed to be predictors of
future violence.†When defendant was
sentenced in the present case, he was also sentenced in another case in which
he pleaded no contest to driving under the influence with a prior conviction
and driving on a suspended/revoked license with two prior convictions.
In sum, when
defendant pleaded to the offenses at the complaint stage, he avoided the risk
of additional felony convictions that would have resulted in a longer period of
incarceration as well as the same adverse immigration consequences. Thus, the trial court did not abuse its
discretion in finding that defendant failed to establish prejudice.
The order is
affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo, Acting P.
J.
______________________________
Márquez, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title="">[2] Since defendant entered his plea prior to the preliminary
hearing, the statement of facts is based on the police reports and the
probation officer’s report.
