THE PEOPLE v. ARMANDO SANCHEZ

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. ARMANDO SANCHEZ, Defendant and Appellant.

F060878

Decided: August 26, 2011

David F. Candelaria for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

In July 1997, appellant, Armando Sanchez, pursuant to a plea agreement, pled no contest to charges of possession of methamphetamine for purposes of sale (Health & Saf.Code, § 11378;  count 1) and possession of marijuana for purposes of sale (Health & Saf.Code, § 11359;  count 3), and to the following special allegations:  he personally used a firearm in committing the count 1 offense (Pen.Code, § 12022, subd. (c)); 1  one or more principals in the commission of the count 3 offense was armed with a firearm (§ 12022, subd. (a)(1));  and in committing the count 1 offense, he possessed 57 grams or more of a substance containing methamphetamine (§ 1203.073, subd. (b)(2)).   In September 1997, the court imposed a prison term of four years four months, consisting of the 16–month lower term on count 1 and three years on the firearm-use enhancement.   The court imposed a concur

1 rent term of two years four months, consisting of 16 months on the count 3 offense and one year on the accompanying enhancement.

In May 2010, appellant filed a notice of motion to set aside his plea (and, presumably, to vacate the judgment) on the grounds that he was not adequately advised of the immigration consequences of his plea, pursuant to section 1016.5.2  The court denied the motion, and instant appeal followed.   The court granted appellant's request for a certificate of probable cause (§ 1237.5).

On appeal, appellant contends the court erred in denying appellant's section 1016.5–based motion to set aside his plea.   We affirm.

PROCEDURAL BACKGROUND

On July 25, 1997 (July 25), appellant executed under penalty of perjury an “ADVISEMENT OF RIGHTS, WAIVER AND PLEA FORM” (plea waiver form), a five-page printed form consisting largely of statements, each of which is preceded by a space to be initialed by the person executing the form to indicate adoption of the statement.   Appellant initialed a statement that appears under the heading “ACKNOWLEDGMENT OF CONSEQUENCES” that indicates he understood the “procedures [that] may be instituted against [him]” as a consequence of his plea included “Deportation, exclusion from admission into the United States, or denial of naturalization[.]”  He also initialed the following statement:  “I have spoken with my lawyer and believe I have had enough time to talk with him/her about my case.”

On the last page of the plea waiver form is a “DECLARATION OF ATTORNEY” executed by appellant's trial counsel under penalty of perjury on July 25, which includes the following:  “I have personally read and explained to [appellant] the contents of this document including ․ the possible consequences of a plea of guilty to [the] charge(s) and allegation(s) [against appellant].”

Also on July 25, prior to accepting appellant's plea, the following exchange took place:

“THE COURT:  Mr. Sanchez, I've just been handed a document five pages long.   It's entitled Advisement of Rights, Waiver and Plea Form. [¶] Is this something you read with Mr. Thommen [defense counsel]?

“[Appellant]:  Yes, I did.

“THE COURT:  Did Mr. Thommen read it to you?

“[Appellant]:  Yes.

“THE COURT:  Are these your personal issues [sic ] on this document?

“[Appellant]:  Yes, they are.

“THE COURT:  Did you make the initials on this document indicating that the information next to the initials had been read to you and that you understood it?

“[Appellant]:  Yes, I did.

“THE COURT:  And this apparently is your signature on page 4;  is that right?

“[Appellant]:  Yes, it is.

“THE COURT:  Does that indicate that you've read the entire document and that you understood this document?

“[Appellant]:  Yes.”

Subsequently, the following occurred:  The court asked appellant if he had any questions “about any of your rights that are set forth in this document [.]”  Appellant said he did not.   Appellant, in response to a question by the court, affirmed that he had “had enough time to talk to [his] attorney.”   Appellant's counsel, in response to a question by the court, affirmed he “personally explained to [appellant] all of his rights and the consequences of his plea[.]”

The trial court did not give the advisement set forth in section 1016.5 and did not mention the immigration consequences of appellant's plea.

In his memorandum of points and authorities in support of his motion to withdraw his plea, filed May 26, 2010, appellant asserts he is a “native and citizen of Mexico” and was “admitted to the United States” in May 1990 “as a lawful permanent resident.”   Attached to appellant's reply to the People's opposition to his motion was a copy of a notice dated May 20, 2010, entitled “NOTICE OF HEARING IN REMOVAL PROCEEDINGS” for a hearing to be held September 23, 2010 in “Immigration Court.”

DISCUSSION

The People do not dispute that the court failed to orally advise appellant of the immigration consequences of appellants plea pursuant to section 1016.5.   Appellant, for his part, does not dispute that by executing the plea waiver form, he acknowledged receiving the admonitions the court was required to give under section 1016.5.   Appellant argues, however, that because (1) the court did orally give the section 1016.5 advisements and (2) defense counsels statement in his declaration that he personally read and explained to [appellant] ․ the possible consequences of a plea of guilty” assertions, as stated in the plea waiver form, and counsels response to the courts question indicating that he personally explained to [appellant] all of his rights and the consequences of his plea” are “vague at best” and do not specify precisely what counsel told appellant, the court erred in denying his motion to set aside his plea.   We disagree.   As we explain below, appellant's argument fails because (1) the record demonstrates compliance with section 1016.5;  (2) appellant has not demonstrated any justification for the delay of nearly 13 years in moving to withdraw his plea;  and (3) appellant has not demonstrated he was prejudiced by the court's failure to give the section 1016.5 advisement.

Compliance With Section 1016.5

Citing In re Ibarra (1983) 34 Cal.3d 277 (Ibarra ), this court in People v. Ramirez (1999) 71 Cal.App.4th 519 (Ramirez ) held the advisement required by section 1016.5 need not be made orally.3  The court explained:  “Our state Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court.  [Citation.]  Particularly, in Ibarra, the court addressed constitutionally mandated advisements required under Boykin v. Alabama (1969) 395 U.S. 238 ․ and In re Tahl (1969) 1 Cal.3d 122․  It also stated in Ibarra:  ‘A sufficient waiver form can be a great aid to a defendant in outlining [a defendant's] rights.   The defense attorney, who is already subject to a duty to explain the constitutional rights outlined in a proper waiver form to his client prior to the client's entering a plea, may even find it desirable to refer to such a form.   Thus, a defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge.   The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney.’ ”  (Ramirez, at pp. 521–522;  see People v. Gutierrez (2003) 106 Cal.App.4th 169, 175 [trial court may rely upon a defendant's validly executed waiver form utilized by the court in accepting a plea “ ‘as a proper substitute for a personal admonishment’ ”].

This court in Ramirez, supra, 71 Cal.App.4th at p. 522, further stated, “there is no language in the statute requiring verbal advisements by the court,” and explained, “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.”

Here, as indicated above, the plea waiver form, which is part of the record, advised appellant of the immigration consequences of his plea;  appellant affirmed, in writing in his execution of the plea waiver form and orally in open court, that he had read and understood the entire document;  and the trial court, through its questioning of both appellant and defense counsel, “satisfie [d] itself that [appellant] understood the advisements and had an opportunity to discuss the consequences with counsel․”  (Ramirez, supra, 71 Cal.App.4th at p. 522.)   Therefore, the record demonstrates compliance with section 1016.5.  (Id. at p. 523.)

Delay

In People v. Castaneda (1995) 37 Cal.App.4th 1612 (Castaneda ), the defendant pled guilty to driving under the influence (Veh.Code, § 23153, subd. (a)), and seven years later moved to withdraw his plea pursuant to section 1016.5 on the ground that he was not advised of the possible immigration consequences of his plea.   In rejecting the defendant's challenge to the denial of his plea withdrawal motion, the appellate court stated:  “A postjudgment motion to change a plea must be ‘seasonably made.’  [Citation.]  Thus, the trial court may properly consider the defendant's delay in making his application, and if ‘considerable time’ has elapsed between the guilty plea and the motion to withdraw the plea, the burden is on the defendant to explain and justify the delay.  [Citation.]  The reason for requiring due diligence is obvious.   Substantial prejudice to the People may result if the case must proceed to trial after a long delay.”  (Castaneda, at p. 1618.)   The defendant in Castaneda “offered no justification” for his seven-year delay in moving to withdraw his plea, and “on that ground alone” the trial court “acted well within the bounds of its discretion to deny relief․”  (Ibid.)

Further, the court stated, the defendant's motion was “equivalent to a petition for the common law remedy of a writ of error coram nobis,” and one of the requirements for that remedy is a showing that “the facts upon which [the defendant] relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.”  (Castaneda, supra, 37 Cal.App.4th at pp. 1618–1619.)   The court held:  “․ defendant made no showing of reasonable diligence․  He does not allege when he first became aware of the effect of his drunk driving conviction upon his defense of good moral character, nor does he allege why he could not have discovered the effect earlier or why he waited until 1994 to seek relief.   Defendant failed to establish diligence, and his motion was properly denied.”  (Id. at p. 1619.)

Similarly, in the instant case, appellant has not offered any justification for his delay in seeking relief.   Moreover, he does not now, and did not below, allege when he became aware that his 1997 conviction placed him at risk of deportation, nor why he could not have discovered this factor earlier and why he waited until 2010 to move to withdraw his plea.   As in Castaneda, these factors preclude reversal.

Prejudice

“To prevail on a motion to vacate under section 1016.5, a defendant must establish[,] [inter alia] that ․ he or she was prejudiced by the nonadvisement.”  (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari ).)   We review the court's order denying a section 1016.5 motion to withdraw a guilty plea for abuse of discretion.  (People v. Superior Court (Zamudio ) (2000) 23 Cal.4th 183, 192 (Zamudio ).)

“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.”  (Totari, supra, 28 Cal.4th at p. 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 (1991) 230 Cal.App.3d 525, 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, 319–320;  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 court's findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding.’ ”  (People v. Quesada, supra, 230 Cal.App.3d 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․”  (Totari, supra, 28 Cal.4th at p. 884.)

Even if we assume for the sake of argument that the court erred in failing to advise appellant pursuant to section 1016.5, appellant's execution of the plea waiver form, his affirmation in court that he read and understood the form, and counsel's statements that he advised appellant of the consequences of a no contest plea strongly support the conclusion that appellant was aware of the immigration consequences of his plea.   On this record, the court reasonably could have concluded that appellant did not show it was reasonably probable that he would not have entered his plea had the court given the section 1016.5 advisement.   Therefore, appellant has not established prejudice.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Except as otherwise indicated, all further statutory references are to the Penal Code..  FN1. Except as otherwise indicated, all further statutory references are to the Penal Code.

FN2. Section 1016.5 provides, in relevant part:  “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:  [ ] 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..  FN2. Section 1016.5 provides, in relevant part:  “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:  [ ] 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.

FN3. Ibarra was overruled on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1177–1178..  FN3. Ibarra was overruled on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1177–1178.