THE PEOPLE v. MIGUEL AVILA (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Miguel Avila appeals from the trial court order denying his motion to set aside a conviction.  (Pen.Code, § 1016.5.) We appointed counsel to represent him on appeal.

On October 13, 2010, after examination of the record, counsel filed an opening brief in which no issues were raised.   Counsel advised appellant that he could submit a supplemental brief on his own behalf.   On October 13, 2010, we directed counsel to send the record on appeal and a copy of appellant's opening brief to appellant immediately, and advised appellant that he had 30 days in which to submit by brief or letter any argument or contention he wished this court to consider.   Appellant submitted a brief on his own behalf.

These are the relevant facts:  In 1989, appellant pled guilty to two counts of violation of Health and Safety Code section 11352.   In June of 2008, he moved to set aside those convictions on the ground that he had not been advised that his plea could lead to deportation, exclusion from admission to the United States, or denial of naturalization.  (Pen.Code, § 1016.5.) The trial court denied the motion.

On remand, the court held such a hearing.   Appellant testified that he left the country of his birth, Guatemala, because he was being watched, followed, and persecuted by the government for his participation in a student political movement.   When he entered his plea in 1989, he was not told that it could result in the denial of citizenship or the exclusion from admission.   If he had known that he could have been sent back to Guatemala based on the plea, he would not have entered the plea.

Appellant was cross-examined concerning the circumstances of the 1989 offenses, the choice to enter a plea, the sentence offered on the plea, other contacts with police in which appellant had given false names and birthdates, and other matters.

The court found appellant not credible, and denied the motion.

In his brief on appeal, appellant contends that the trial judge denied him his due process rights by failing to treat him with respect and by failing to provide him with a fair and substantial hearing, evidenced by an evidentiary ruling excluding further evidence on his activities in Guatemala;  by the trial judge's failure to comment on the immigration judge's opinion;  by the trial judge's statement, after the district attorney erroneously referred to a transcript of the plea, that there was no transcript and that I wish we had a transcript of the plea;  and because the court noted that appellant's lawyer in the underlying proceeding, was known to him and was talkative.

Appellant further contends that the court denied him his Fifth Amendment right by overruling an objection to the prosecutor's question, on cross-examination, you sold cocaine to an undercover detective at Los Angeles High School four times, right?   On this point, he also contends that he was not accused of selling cocaine on four occasions.

Appellant also argues other matters concerning the underlying case (for instance, entrapment), that he was not adequately advised and did not understand the consequence of his pleas, and that at the instant hearing his testimony should have been credited and the prosecution's evidence rejected.

He has submitted as exhibits minute orders in the underlying proceeding, a transcript of the preliminary hearing in that proceeding, documents in the immigration proceedings, the motion at issue here.

We see no ground for reversal.   The sole issue at the hearing was prejudice.   To establish prejudice, the defendant must show that it was reasonably probable that he would not have pleaded guilty if properly advised.  (People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.)   Appellant so testified, but the trial court disbelieved him.   Weighing the credibility of witnesses is for the trial judge, and a finding that a witness is not credible may not be disturbed on appeal.

Nor do we see any denial of due process or a fair trial.   The judge's comments about appellant's lawyer in the underlying matter were casual and unimportant to the outcome.   The evidentiary rulings were well within the bounds of the trial judge's discretion.   Further, our review of the transcript of the proceedings reveals no bias on the part of the trial judge, and no failure in judicial comportment.

The trial judge heard and decided the sole relevant issue, and such things as the immigration judge's opinion or the facts of the underlying case were not relevant.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

MOSK, J. KRIEGLER, J.