P. v. Rivas

Filed 12/9/09 P. v. Rivas CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Marcelita V. Haynes, Judge. Dismissed.

Jesse A. Moorman for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Xiomara Costello and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent

Jose Antonio Rivas, aka Carlos Andrades, appeals from the order denying his motion to vacate a judgment. On November 27, 1995, he pled guilty to possession for sale of cocaine base (Health & Saf. Code, 11351.5) and was sentenced to jail for 180 days. Execution of his sentence was stayed and he was placed on three years formal probation.[1]

FACTUAL AND PROCEDURAL SUMMARY

The evidence at the preliminary hearing established that on August 17, 1995, at approximately 7:15 p.m., appellant was seen in the area of 11thStreet and Burlington in the County of Los Angeles selling off-white objects resembling rock cocaine. For each sale, appellant retrieved the objects from an orange cap which was hidden in the tire area of a nearby parked vehicle. Following appellants detention, 19 off-white objects resembling cocaine were found in the orange cap. It was stipulated that the substance had a net weight of 1.21 grams and contained cocaine base.

On November 27, 1995, appellant pled guilty to the charge of possession for sale of cocaine base. He was advised, in pertinent part, If youre not a citizen, you could be deported, excluded from reentry to the United States or denied naturalization. Appellant acknowledged that he had had sufficient time to consider the appropriateness of his plea.

On June 23, 2008, appellant filed in superior court a Motion to Vacate Judgment, in the form of Petition for Writ of Habeas Corpus. He asserted in relevant part that he had received ineffective assistance of counsel which caused him to enter a guilty plea without understanding the immigration consequences. He declared under penalty of perjury that he was not guilty of the charge but was very afraid of going to jail; that his defense counsel told him he could spend a long time in prison if he was convicted following a trial and for that reason agreed to the plea; that his counsel never discussed the immigration consequences of his plea. Appellant declared he had previously fled a death threat by a revolutionary group in El Salvador and faced a serious risk of death if he was deported to El Salvador. Had he known he would be deportable and permanently ineligible for immigration benefits in this country, he would not have pled guilty and would have gone to trial.

At the hearing on the motion[2] respondent argued that the transcript of the plea indicated appellant had been advised of the immigration consequences of his plea and that the focus of the discussions regarding the plea was the fact appellant did not want to go to jail. Respondent questioned the credibility of appellants statement that he would not have entered his plea had he had more information regarding the immigration consequences. Appellant argued he had not received any counseling as to the consequences except for the brief mention in the plea agreement . . . in taking the plea orally.

In denying the motion to withdraw the plea, the court found appellant had been properly advised. The court observed that appellant had never come back to court until 12 years later and had never reported to probation. The court found the credibility of appellant to be highly suspicious based on the transcript of the plea proceedings which indicated appellant kept saying he didnt want to go to jail and the court fashioned . . . a disposition where he didnt go to jail[.] The court found no reason to find appellant would not have pled guilty had he had more understanding of the immigration consequences.

Appellant requested but was denied a certificate of probable cause.

DISCUSSION

Respondent contends and we agree that this appeal must be dismissed because appellant failed to obtain a certificate of probable cause. Penal Code section 1237.5 provides, No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

[W]hen a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea. [Citations.] (In re Chavez (2003) 30 Cal.4th 643, 649.)

In such an appealraising so-called certificate issuesthe certificate of probable cause must be obtained regardless of other procedural challenges being made. For example, a defendant who has filed a motion to withdraw a guilty plea that has been denied by the trial court still must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea. [Citations.] A defendant who challenges the validity of such a plea on the ground that trial counsel rendered ineffective assistance in advice regarding the plea may not circumvent the requirements of section 1237.5 by seeking a writ of habeas corpus. [Citations.] (In re Chavez, supra, at p. 651.)

Here, appellant seeks review of the denial of his motion to vacate the judgment and to withdraw the guilty plea upon which it was based. He failed to secure a certificate of probable cause and pursuant to Penal Code section 1237.5 his appeal must be dismissed. (People v. Mendez (1999) 19 Cal.4th 1084, 1099.)[3]

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P.J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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[1] Pursuant to an order of August 14, 2009, the record on appeal was augmented with the preliminary hearing transcript dated September 26, 1995 and the transcript of appellants guilty plea and probation and sentencing hearing dated November 27, 1995.

[2] Prior to the hearing, the court explained appellant would not get an oral hearing on a petition for writ of habeas corpus and appellant agreed the proceedings would be confined to a motion to withdraw the plea.

[3] Were we to decide this appeal on the merits, appellants claim would be rejected. The record demonstrates appellant was properly advised of the immigration consequences of his conviction. (Pen. Code, 1016.5; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200.) Further, on this record, appellant has failed to demonstrate ineffective assistance of counsel with regard to advisement of immigration consequences. (In re Resendiz (2000) 25 Cal.4th 230, 253.)