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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DOMINGO ROGELIO ORTIZ, Defendant and Appellant.


Decided: October 28, 2011

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.


In 2010, appellant Domingo Rogelio Ortiz, in propria persona, filed a “notice of appeal” in superior court to vacate the plea of no contest he had made in 1987 to a charge of kidnapping (Pen.Code, § 207, subd. (a)).1  The trial court treated the notice as a motion to vacate the judgment of conviction pursuant to section 1016.5, subdivision (b), then denied the motion on the ground that Ortiz failed to explain or justify the more than 20–year delay.


In 1987, Ortiz was charged with kidnapping (count 1) and assault with intent to commit rape (§ 220;  count 2), both felonies.   He pleaded no contest to kidnapping, after which the assault charge was dismissed.   Ortiz was convicted upon his plea and sentenced to the low term of three years imprisonment.

On September 24, 2010, Ortiz filed a “notice of appeal” in the Los Angeles Superior Court, seeking to challenge the validity of his plea on the ground that he had not been adequately advised of its immigration consequences.   In a request for a certificate of probable cause, Ortiz declared the following:  “Defendant contends that plea was without full knowledge and understanding of the Immigration consequences[.  C]ontention is ineffective assistance and that plea was prejudice [sic] to defendant and court [sic] applied incorrect standard in making this decision.   This being said, I request an emergency hearing and one done as soon as possible.   The reason being that I am in current custody of Immigration and am about to be deported.   What concerns me the most is the well being of my wife, who needs all the help and support from me, the reason being that she has a brain tumor, and I am the one who cares for her.   I can't be left with that burden.”

Ortiz did not explain the 22–year delay in seeking to withdraw his plea.

The trial court construed Ortiz's notice of appeal as a motion to vacate the judgment of conviction. (§ 1016.5.) It denied the motion as untimely, finding Ortiz failed to prove reasonable diligence in bringing the motion.

We appointed counsel to represent Ortiz on appeal and, after examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record.   On April 18, 2011, we advised Ortiz he had 30 days within which to personally submit any contentions or issues he wished us to consider.

Ortiz filed a supplemental letter brief in which he declares:  “I was not advised of the consequences I was going to confront in the future;  otherwise I would have made a different decision.   That decision would have been to go to trial and prove my innocence and make the alleged victim prove the charges.”   “[I] did it know until just recently when I tried to get relief from immigration and it was denied due to my conviction.”  (Italics added.)

On August 2, 2011, we requested further briefing on (1) whether this court may countenance Ortiz's declaration submitted for the first time on appeal;  (2) whether we may take judicial notice of any evidence supporting or refuting the declaration;  (3) what that evidence might be (inviting a request for judicial notice);  and (4) what procedural path should be taken going forward.   Both parties submitted supplemental briefs that we now consider.


“Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime 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 ․“ (§ 1016.5, subd. (a).)  If the court fails to advise the defendant as required by section 1016.5, the defendant may move to vacate the judgment and withdraw the plea of guilty or nolo contendere, after which he or she may enter a plea of not guilty.  (Id. at subd. (b);  People v. Totari (2002) 28 Cal.4th 876, 884.)  “Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” (§ 1016.5, subd. (b).)

But “[a] postjudgment motion to change a plea must be ‘seasonably made.’   [Citation.]”  (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618;  People v. Kim (2009) 45 Cal.4th 1078, 1097–1098 [acknowledging a diligence requirement exists for a motion to vacate a plea under § 1016.5].) “[I]f ‘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.   For example, in People v. Palmer (1942) 49 Cal.App.2d 567, the defendant pled guilty, then fled and was apprehended 12 years later.   In affirming the denial of his postjudgment motion to withdraw his plea the appellate court held that it would be a mockery of justice to permit the defendant to change his plea after 12 years, after material witnesses may have died or disappeared.  [Citations.]”  (People v. Castaneda, at p. 1618.)   This court's review is for abuse of discretion.   (People v. Totari (2003) 111 Cal.App.4th 1202, 1206 (Totari II ).)

The 22–year delay between Ortiz's conviction and motion to vacate was considerable, and as the trial court noted, Ortiz failed to justify or explain the delay below, saying nothing about when deportation proceedings were initiated against him or why he did not file the motion to vacate earlier.   It was not until his supplemental brief on appeal that Ortiz claimed he learned “just recently” that his conviction carried immigration consequences.

Totari II presented a similar situation.   There, Zuheir Totari, a citizen of Israel, was lawfully present in the United States on a student visa.   (Totari II, supra, 111 Cal.App.4th at pp. 1204, 1205, fn. 4.) In 1985 he pleaded guilty to possession of methamphetamine.  (Id. at p. 1204.)   Deportation proceedings were initiated against him before sentencing, but he was nevertheless convicted and served some jail time.  (Ibid.)

After serving his jail sentence Totari avoided deportation for 13 years but was ultimately transported to Israel in 1998 on a 1986 deportation warrant.   He thereafter filed a motion to vacate his 1985 convictions, claiming he would not have pleaded guilty if he had been informed of the immigration consequences of his plea.  (Totari II, supra, 111 Cal.App.4th at pp. 1204–1205;  8 U.S.C., § 1227(a)(2)(B)(i) [an alien is deportable if he or she is convicted of a crime relating to a controlled substance].)   The prosecution countered that Totari was made aware of the immigration consequences of the 1985 conviction when deportation proceedings were initiated against him before sentencing.   The trial court denied Totari's motion on the ground that he had not exercised due diligence in seeking to vacate the convictions.  (Totari II, supra, at p. 1209.)

The appellate court initially affirmed the trial court's order but then granted defendant's petition for rehearing and requested supplemental briefing on the appropriate standard of review.   In conjunction with this briefing, the Attorney General requested judicial notice of immigration documents relating to Totari.   These documents indicated the 1985 deportation proceedings had been initiated not because Totari was convicted of a drug-related offense, but because he had violated his student visa.  (Totari II, supra, 111 Cal.App.4th at p. 1205.)   In fact, “the immigration judge indicated that [Totari's] convictions did not affect his immigration status.”  (Ibid., italics added.)   These facts undermined the inference that Totari knew in 1985 that his conviction would endanger his immigration status, which in turn supported an inference that Totari had exercised reasonable diligence.   Although the appellate court found no fault with the superior court—the immigration documents introduced for the first time on appeal had not been made available at trial—it reversed the order denying Totari's motion and remanded the case for a new hearing.

Ortiz, like Totari, claims he was not informed during plea negotiations that a conviction would endanger his immigration status.   But before he may ask the trial court to consider that issue he must demonstrate due diligence in raising it, which he failed to do below and fails to do here.

Ortiz declares in his supplemental brief that deportation proceedings were initiated recently.   However, we may not notice for the first time on appeal facts supported only by an appellant's declaration.  (See People v. Clark (1993) 5 Cal.4th 950, 988, fn.   13 [“When a party does not raise an argument at trial, he may not do so on appeal”];  overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)   Ortiz argues exceptions exist to the rule than an appellate court will not consider points not raised in the trial court, but those exceptions pertain to questions of law presented for the first time on appeal on undisputed facts.  (Dudley v. Dept. of Transportation (2001) 90 Cal.App.4th 255, 259–260.)   Ortiz's declaration does not present a question of law.

Receiving nothing cognizable regarding Ortiz's diligence, we sought briefing on whether we may take judicial notice of evidence substantiating or refuting his declaration.   Ortiz's appointed counsel admits he “cannot speculate on what the evidence for which judicial notice can be taken would be beyond the contents of the superior court file.”   Ortiz does not, for example, seek judicial notice of documents relating to his deportation proceedings, documents that might have supported an inference that he discovered only recently the immigration consequences of his plea.

On this record, Ortiz failed to establish due diligence in moving to vacate the judgment of conviction.   His motion was therefore properly denied.

We have examined the entire record in other respects and are satisfied that appellant's counsel has fully complied with the responsibilities set forth in People v. Kelly (2006) 40 Cal.4th 106, 109–110 and People v. Wende (1979) 25 Cal.3d 436, 441.   No arguable issues exist.


The order denying appellant's motion to vacate the judgment of conviction is affirmed.



We concur:




FN1. All undesignated statutory references will be to the Penal Code..  FN1. All undesignated statutory references will be to the Penal Code.

FN2. (Evid.Code, § 452, subd. (d) [judicial notice may be taken of court records];  see People v. Wiley (1995) 9 Cal.4th 580, 594.).  FN2. (Evid.Code, § 452, subd. (d) [judicial notice may be taken of court records];  see People v. Wiley (1995) 9 Cal.4th 580, 594.)