P. v. Barrera CA2/2 ( 2013 )

Filed 3/6/13 P. v. Barrera CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE, B238326
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA005274)
v.
JOSE LUIS BARRERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Roger Ito,
Judge. Affirmed.
Rene A. Ramos, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Steven D.
Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
******
Defendant and appellant Jose Luis Barrera (defendant) appeals from an order
denying his motion to vacate a judgment entered in 1990 upon a guilty plea. He contends
that the trial court erred in finding that he was adequately advised of the potential
immigration consequences of his guilty plea. The People contend that the trial court did
not abuse its discretion when it denied the motion to vacate the plea. Substantial
evidence supports a finding that the advisements were given. We affirm the order.
BACKGROUND
On October 9, 1990, in Los Angeles Superior Court case No. VA005274,
defendant pleaded guilty to one count of second degree burglary, in violation of Penal
Code section 459.1
The standard plea form, i.e., the Tahl2 form, included a paragraph which listed the
immigration consequences of a plea. It provided: “I understand that if I am not a citizen
of the United States, the conviction for the offense 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.” Defendant declared by his signature at the end
of the document he understood “each and every one” of his constitutional rights and
desired to waive those rights to plead guilty, and he had “personally initialed each of the
above boxes and discussed them with [his] attorney.” Defendant was represented by
attorney Arnold W. Lieman. Lieman declared, “I have explained each of the above rights
to the defendant, and having explored the facts with him/her and studied his/her possible
defenses to the charge(s), I concur in his/her decision to waive the above rights and to
enter a plea of guilty.”
Before accepting the guilty plea, the trial court (before Commissioner Thomas
Parrott) asked the prosecutor to obtain defendant’s waiver. Defendant was directed to
examine the two-page Tahl waiver form that was placed in front of him, and was asked if,
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 In re Tahl (1969) 1 Cal.3d 122.
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with the help of his attorney, he had read and understood the form. He replied, “Yes,”
and indicated that he had no questions regarding the form. Defendant was asked if he
placed his initials in the boxes on the left side of the Tahl waiver form and signed his
name on the second page. He replied in the affirmative and indicated that he understood
and accepted everything on the two-page form. Defendant was asked and responded to
additional questions regarding his constitutional rights to a jury trial, to confront and
cross-examine witnesses against him, to put on a defense, and the right against self-
incrimination. The court found defendant entered the guilty plea of his own free will,
made a knowing and intelligent waiver of his constitutional rights, and understood the
consequences, penalties, and punishments associated with the plea.
On April 28, 2011, defendant filed a motion pursuant to section 1016.5 to vacate
his 1990 conviction in Los Angeles Superior Court case No. VA005274. He argued that
he was not properly advised of the immigration consequences of his plea and attached the
transcript of the plea proceedings. Also in support of the motion, defendant submitted his
declaration describing the circumstances of his conviction as well as facts regarding
himself and his family.3 Defendant did not “recall being informed of the immigration
consequences of [his] plea by the court or [his] attorney.” He was not told that his plea
“could result in deportation, exclusion of admission, or denial of naturalization.” He
would not have entered the plea had he known of the immigration consequences and
instead would have negotiated an alternative plea or exercised his right to a jury trial.
On November 2, 2011, the trial court held a hearing on the motion to vacate.
Defendant was unable to obtain the original Tahl waiver form or a copy from the office
of public records. The prosecutor produced a digitized copy which defense counsel
acknowledged was a copy of the original form used in the 1990 plea. Defense counsel
argued that the absence of both check marks and defendant’s initials by the clause
3 Defendant has lived in the United States for 36 years and permanently resides in
Phoenix, Arizona. His wife, four children, and four grandchildren are United States
citizens. His labor union membership authorizes him to work as a pipe welder all over
the country.
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containing the immigration consequences of the plea on the form, suggested that it was
not discussed with defendant. The court remarked on the poor quality of the copy and the
difficulty in seeing any initials or marks on the form. The court then noted that the
deputy district attorney “went through the waiver form to ensure that [the defendant] had,
in fact, initialed the boxes at the time he was taking the plea.” The court also found
significant that parts of the Tahl waiver form which were inapplicable to defendant had
been crossed or lined out,4 while the clauses pertaining to the immigration consequences
had not.
Having reviewed the totality of the evidence which included the defendant’s
declaration that he could not recall if he was advised of the immigration consequences,
the transcript of the plea hearing, and the signed copy of the waiver form which included
the immigration advisements but not other inapplicable consequences, the court found
sufficient evidence that the required advisements were given when defendant entered his
plea. Defendant filed a timely notice of appeal from the order denying his motion, but
did not obtain a certificate of probable cause.
DISCUSSSION
I. Contention
Defendant contends the trial court erred by finding he was advised of the
immigration consequences of his decision to enter a guilty plea in compliance with
section 1016.5. Specifically, defendant contends the plea form did not contain any
legible initials or markings to indicate that defendant was advised. The People, on the
other hand, contend the transcript of the plea proceedings, coupled with the provisions of
the plea form which defendant signed, was sufficient to show the advisements were
given.
4 One clause required registration as a sex offender, while a second required
registration as a narcotic offender.
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II. Requirements of section 1016.5
Prior to acceptance of a plea of guilty or nolo contendere, the trial court must give
the defendant the following advisement on the record: “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.” (§ 1016.5, subd. (a).) A
defendant who was not so advised may move to vacate the judgment and his plea.
(§ 1016.5, subd. (b).)
“To prevail on a motion to vacate under section 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.]”
(People v. Totari (2002) 28 Cal.4th 876, 884; see also People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 192, 199–200.)
III. No certificate of probable cause required
In People v. Placencia (2011) 194 Cal.App.4th 489 (Placencia) the court held that
a defendant must obtain a certificate of probable cause in order to appeal the denial of a
motion to withdraw a guilty plea for failure by the court or counsel to advise the
defendant of the immigration consequences of the plea in accordance with
section 1016.5. The issue is currently pending before the California Supreme Court in a
case from this Court, People v. Arriaga (2011) 201 Cal.App.4th 429 (Arriaga), review
granted February 22, 2012, S199339. The majority opinion in Arriaga disagreed with
Placencia and found no probable cause certificate was required. Until such time as the
Supreme Court concludes otherwise, we see no reason to depart from Arriaga and
proceed to the merits of defendant’s case.
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IV. Standard of review
We review the trial court’s ruling for abuse of discretion. (People v. Superior
Court (Zamudio), supra, 23 Cal.4th at p. 191.) To establish an abuse of discretion,
defendant must show that it was exercised in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179
Cal.App.4th 1514, 1518.) We uphold the trial court’s reasonable inferences and
resolution of factual conflicts if supported by substantial evidence, viewed in the light
most favorable to the ruling, and we accept the court’s credibility determinations.
(People v. Quesada (1991) 230 Cal.App.3d 525, 533.)
V. No abuse of discretion
Defendant’s reliance on the absence of initials or marks on the copy of the Tahl
waiver form is misplaced when we consider, as the trial court did, the poor quality of the
digitized copy of the form in conjunction with the transcript of the plea proceedings.
The original waiver form was not available from public records and the court and
the parties relied on a digitized copy provided by the prosecutor. The copy was of such
poor quality that the trial court noted not only was it “very difficult to make out any
initials” but “it was difficult to make out the actual initialed boxes.” It was evident
however that the waiver bore defendant’s signature and provisions that were inapplicable
to defendant’s plea had been crossed out but the immigration advisement had not.
The transcript of the plea proceedings from October 9, 1990, indicates that the
two-page Tahl waiver form was placed in front of defendant and he was asked to review
it prior to entering his plea. Defendant acknowledged that he read and understood the
form and signed his name on the second page. Additionally, defendant acknowledged
that he placed his initials “on the left side in the little boxes” on the waiver form. The
record here does not reflect that defendant had difficulty understanding the prosecutor’s
questions, and defendant’s declaration in support of his motion to vacate the plea did not
state that he did not understand what he was told; he stated he did not recall what he was
told. The absence of defendant’s initials or marks by the immigration provisions on the
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copy of the waiver form is not significant in light of the fact that no initials can be
observed anywhere on the form. Given defendant’s acknowledgement that he did initial
the form the inability to see them was due to the poor quality of the digitized copy.
Substantial evidence showed that the statutorily required advisements were
properly given in this case. We conclude that the trial court did not abuse its discretion in
denying the motion.
DISPOSITION
The trial court’s order denying the motion to vacate defendant’s 1990 conviction is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, P. J.
BOREN
We concur:
_______________________, J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
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