People v. Merlos CA2/3 ( 2014 )

Filed 4/24/14 P. v. Merlos CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B250202
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 91P07983
v. Appellate Division
Case No. BR050504)
JOSE ANTONIO MERLOS,
Defendant and Appellant. ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on April 2, 2014, is modified as
follows:
On page 1, paragraph 1, delete the first paragraph in its entirety and replace with:
APPEAL from a judgment of the Superior Court of Los Angeles County,
Thomas E. Grodin, Judge. Reversed and remanded.
[NO CHANGE IN JUDGMENT.]
Filed 4/2/14 P. v. Merlos CA2/3 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B250202
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 91P07983
v. Appellate Division
Case No. BR050504)
JOSE ANTONIO MERLOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Patti Jo McKay, Judge. Reversed and remanded.
Law Offices of Anthony J. Pullara and Bernardo Lopez, for Defendant and
Appellant.
Michael N. Feuer, Los Angeles City Attorney, Debbie Lew, Assistant City
Attorney and Rick V. Curcio, Deputy City Attorney, Criminal Appellate Division, for
Plaintiff and Respondent.
_______________________________________
Twenty-one years after defendant was convicted, based on a no contest plea, of
misdemeanor domestic violence, defendant moved to vacate the judgment and withdraw
his plea. Defendant argued that, at the time of his plea, he had not been properly
advised of the immigration consequences of his conviction, as required by Penal Code
section 1016.5. Penal Code section 1016.5, subdivision (b) provides that, in the absence
of a “record” showing that the court had provided the defendant with a proper
advisement, there is a rebuttable presumption that the defendant was not properly
advised. Here, as defendant’s motion to vacate was filed long after the records
pertaining to his plea were destroyed, the presumption arose. The prosecution sought to
meet its burden of proving that defendant was properly advised by relying, in part, on
the standard advisement of rights form purportedly in use by the trial court at the time of
defendant’s plea. The trial court found that the prosecution had successfully met its
burden, and denied defendant’s motion, specifically relying on the standard advisement
of rights form. The appellate division reversed, holding that the standard advisement of
rights form was completely irrelevant to the appropriate analysis. The prosecution
petitioned to transfer the case to this court, arguing that, in cases where the records have
been destroyed, the standard advisement of rights form can constitute circumstantial
evidence of the advisements given. We agree; however, we conclude that as the
standard advisement of rights form was not properly authenticated in this case, the
appellate division did not err in excluding it from consideration. We therefore will
reverse the trial court’s decision and, for the reasons set out below, will remand the
matter for further proceedings.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Defendant’s Plea
On August 15, 1991, defendant was charged with three misdemeanor counts:
battery (Pen. Code, § 242); domestic violence (Pen. Code, § 273.5, subd. (a)), and
assault (Pen. Code, § 245(a)(1)), all arising from a single incident. Defendant was
arraigned and advised of his rights. He then entered a no contest plea to domestic
violence. The court found him guilty. Imposition of sentence was suspended,
defendant was placed on summary probation for two years, with certain conditions. The
remaining counts were dismissed. Defendant ultimately completed his conditions of
probation.
2. Defendant’s Motion to Vacate the Judgment and Withdraw His Plea
Twenty-one years later, on September 18, 2012, defendant filed a motion to
withdraw his plea, on the basis that he had not been properly advised of the immigration
consequences of his conviction. Defendant submitted a declaration in support of his
motion, stating that, in February 2012, when returning to the United States from a trip to
El Salvador, he was detained by Immigration and Customs Enforcement for several
months. He was informed by his immigration attorney that his 1991 domestic violence
conviction renders him deportable.
Defendant stated that he had been unaware of the immigration consequences of
his plea, and that he had pleaded no contest because he believed there were minimal
consequences to the plea and it would get him released from custody. He stated that,
had he known of the immigration consequences, he would not have accepted the plea
3
agreement and would have continued to fight the case, hoping for an
immigration-neutral resolution. Defendant declared that he would have accepted an
immigration-neutral plea (if offered) even if it required him to spend more time in
custody. He explained, “At the time of this conviction, my immigration status was
extremely valuable to me because I was a green card holder, was married with two
children, and was in the process of becoming a U.S. citizen.”1
3. The Prosecution’s Opposition
In opposition to the motion, the prosecution argued that defendant had been
properly advised. By the time of the defendant’s motion, the court file had been
destroyed; the reporter’s notes had been destroyed as well. Thus, minimal records
existed to resolve the issue of the whether the defendant had been properly advised.
The prosecution relied on a copy of the minute order of defendant’s plea. The minute
order states an interpreter was present. With respect to the issue of advisement of
rights, the minute order states: “Defendant arraigned and advised of the following
rights at mass advisement: speedy public trial, trial within 30/45 days, right to remain
silent, subpoena power of court, confrontation and cross examination, jury trial, court
trial, right to attorney, self representation, reasonable bail, citizenship, effect of priors,
1
The prosecution would later argue that defendant did not act with due diligence
in bringing his motion to vacate the judgment and withdraw the plea. While
defendant’s declaration states that he was unaware of the immigration consequences at
the time of his plea, and that he is now aware of those consequences, he does not state
when, in fact, he had learned of the immigration consequnces of his conviction. As he
states that he was “in the process” of becoming a citizen at the time of his plea in 1991,
and he is clearly not a citizen now, it may well be that defendant’s conviction derailed
his citizenship application many years ago, a circumstance of which he certainly would
have been then aware.
4
pleas available probation.” (Emphasis added.) The order goes on to state, “Defendant
advised of and personally and explicitly waives the following rights: [¶] Written
advisement of rights and waivers filed, incorporated by reference herein.” It states that
“counsel for the defendant joins in the waivers and concurs in the plea.” Finally, the
minute order states that the “court finds that each such waiver is knowingly,
understandingly, and explicitly made.”
The minute order refers explicitly to defendant having been advised as to
“citizenship.” As we shall discuss, this is insufficient to constitute a record establishing
that defendant had been properly advised of the immigration consequences of his plea
pursuant to Penal Code section 1016.5. The minute order also refers to a written
advisement of rights and waivers. Presumably, that document would go a great distance
toward resolving the issue of whether defendant had been properly advised of his
immigration rights. As that document is no longer in existence, the prosecution sought
to establish its contents by secondary evidence, to wit, the standard advisement of rights
form in use by the trial court at the time.
The prosecution submitted the declaration of Deputy City Attorney Jane Lee, the
prosecutor opposing the motion to vacate. Attorney Lee declared that, in April 2005,
she contacted Dragutin Ilich in the Planning and Research Division of the Superior
Court, and asked him for all misdemeanor advisement and waiver forms from 1982 to
the present. Illich compiled the forms; Attorney Lee picked them up from the Planning
and Research Division. When Attorney Lee discovered that there was not a form for
every year, she spoke to Ilich, who informed her that the court did not reprint the form
5
every year, and that some forms were used in consecutive years. Ilich confirmed,
however, that he had given her all of the forms “used by the courts in Los Angeles from
1982 through 2005.” Attorney Lee compiled the forms chronologically. She concluded
that the form in use in 1991 was the 1989 form, as the next form after 1989 was the
1992 form. She attached to her declaration the standard 1989 Misdemeanor
Advisement of Rights, Waiver, and Plea Form. That form has boxes for the defendant
to initial to confirm his understanding of the provisions therein. It has a section entitled
“Consequences of Plea of Guilty or No Contest,” and it includes among the
consequences, the statement, “I understand that if I am not a citizen, a plea of guilty or
no contest could result in deportation or exclusion from admission to this country, or
denial of naturalization or amnesty.” There is no dispute in this case that this language,
if actually conveyed to defendant, would be sufficient to satisfy the requirements of
Penal Code section 1016.5. The prosecution argued that the minute order’s reference to
a written advisement of rights form, combined with the standard advisement of rights
form in effect at the time of defendant’s plea, gave rise to the inference that the
defendant had been properly advised by means of a form identical to the standard.
The prosecution also argued that defendant’s motion to vacate his plea was
untimely. Further, the prosecution argued that defendant failed to sufficiently establish
prejudice.
4. The Hearing
At the hearing, defendant argued that it would be improper to give the standard
advisement of rights form any weight, as Attorney Lee’s declaration authenticating it
6
was hearsay. Defendant argued that Attorney Lee was not the custodian of records and
had no personal knowledge of which form was used in 1991. Attorney Lee responded
that, as the standard form was obtained from the superior court, the court could simply
take judicial notice of it as a court record. She went on to argue, “It was the practice of
the court to take these waivers through the misdemeanor advisement of rights waiver
forms. The waiver forms were used on a regular basis. Particularly in this case we
know the waiver form was used.” The prosecution argued that the minute order showed
that the trial court “found that the defendant had knowingly, understand[ingly] and
explicitly waived his rights and understood that form.”2 The defendant responded that
Attorney Lee had no personal knowledge as to the practice of the courts in 1991, nor
personal knowledge as to the form used in any particular courtroom in 1991.
The trial court then asked Attorney Lee if, having looked at the forms historically
used, she was “trying to say that was the custom and habit that was used at that time.”
Attorney Lee agreed. The trial court then stated that this was not the first case of this
type the court had seen, and added, “I have seen these forms from past years. And they
are correct. I have looked at them. That is the best I can tell you.” Defense counsel
argued that, in his experience,3 “different forms are used in different judicial districts.”
2
This is something of an overstatement. The trial court found that the waiver was
knowingly, understandingly and explicitly made, but made no specific finding that the
defendant understood the form. Indeed, as we shall discuss, while the trial court
referred to a “written advisement of rights and waivers,” there is no actual statement in
the minute order referring to the use of a form advisement.
3
Defense counsel conceded that his experience did not constitute competent
evidence.
7
The trial court agreed, and also agreed that it may be that not all of the forms contained
the immigration advisement. However, the court stated, “Fortunately it does not appear
to be the case in this matter.”
The court denied the motion, concluding that defendant had been properly
advised of the immigration consequences of his conviction. The trial court agreed that,
as there was no record showing defendant was advised, a rebuttable presumption had
arisen that he had not been properly advised. However, the court concluded that the
prosecution had rebutted the presumption, with the combination of the minute order and
the standard advisement of rights form.
5. Defendant’s Appeal
Defendant appealed the ruling to the appellate division, arguing that the standard
advisement of rights form was unauthenticated and that, therefore, the trial court erred
in relying on it. The prosecution responded that it was within the trial court’s discretion
to conclude that the form had been sufficiently authenticated. The prosecution argued,
“[H]ere, the prosecutor declared she personally knew the blank waiver form attached to
her declaration was the form used when defendant entered his plea, based on undisputed
information she received from court personnel.”
The appellate division reversed the trial court. The appellate division concluded
that the minute order alone was insufficient to defeat the presumption that the defendant
was not properly advised, and that the standard advisement of rights form was simply
not relevant. The appellate division declined to rule on the evidentiary objections to
Attorney Lee’s declaration, setting aside the issues of hearsay and lack of foundation.
8
The court stated, “even assuming this form was in existence, there is no evidence that
this was the form used by the court in obtaining the waiver from defendant. The record
only reflects that a written advisement of rights and waivers was filed. Next, we cannot
assume that defendant initialed the box pertaining to the immigration consequences of
a guilty plea.” As such, the appellate division found the standard advisement of rights
form irrelevant. Thus, there was no evidence beyond the minute order to support the
conclusion that the defendant had been properly advised.
Although the appellate division concluded that the trial court erred in finding that
the defendant was appropriately advised of the immigration consequences of his
conviction, the appellate division remanded the matter back to the trial court to make
factual findings on the other issues raised, including prejudice and diligence.
6. Petition to Transfer
The prosecution then filed a petition to transfer the matter to this court. We
transferred the case and permitted additional briefing.
ISSUES PRESENTED
This case presents the issue of whether, when a motion to withdraw a plea for
inadequate immigration advisements is made after the trial court records have been
destroyed, a court may rely on the standard advisement of rights form which had been in
use at the time of the plea as evidence of the advisements given. We conclude that, if
the document is properly authenticated, it may be relied upon. In this case, the
document was not properly authenticated, so the trial court erred in relying upon it.
9
DISCUSSION
1. Standard of Review
“A motion to vacate judgment of conviction because of a wrongfully obtained
guilty plea is directed to the trial court’s sound discretion, and the reviewing court may
not disturb the trial court’s order in the absence of abuse of discretion. [Citations.] An
abuse of discretion occurs if the court acted ‘in an arbitrary, capricious or patently
absurd manner resulting in a manifest miscarriage of justice.’ [Citations.] The
defendant must establish by clear and convincing evidence the grounds for withdrawing
a guilty plea. [Citations.]” (People v. Suon (1999) 76 Cal. App. 4th 1, 4.)
2. The Immigration Advisements
Penal Code section 1016.5, subdivision (a), provides that, prior to accepting
a plea of guilty or no contest to any offense other than an infraction, 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.”
There are three separate issues addressed by this advisement (deportation, exclusion,
and denial of naturalization/citizenship), and a trial court must advise on all three issues.
(People v. Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 207-208.) It is not
necessary, however, that the trial court advise the defendant orally; a written
advisement, if understood by the defendant, is sufficient. (People v. Ramirez (1999)
71 Cal. App. 4th 519, 523; People v. Quesada (1991) 230 Cal. App. 3d 525, 536.) Nor is
10
it necessary for the trial court, personally, to give the advisement. It may be given by
counsel, the court reporter, or the clerk. As long as “some person acting on behalf of
the tribunal” actually advises the defendant of the immigration consequences, the
adviser’s identity is immaterial. (People v. Quesada, supra, 230 Cal.App.3d at
pp. 535-536.)
If the court fails to advise the defendant of the immigration consequences as
required by Penal Code section 1016.5, subdivision (a), the defendant can move to
vacate the judgment and withdraw the plea. (Pen. Code, § 1016.5, subd. (b).) To
prevail on such a motion, “a defendant must establish: (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, i.e., if properly advised, he or she would not have
pleaded guilty or nolo contendere. [Citation.]” (People v. Dubon (2001)
90 Cal. App. 4th 944, 951-952.) We are concerned, in this case, with the first element.
The governing statute provides that the advisement shall be administered “on the
record.” (Pen. Code, § 1016.5, subd. (a).) “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.” (Pen. Code, § 1016.5, subd. (b).) This constitutes
a rebuttable presumption affecting the burden of proof. It places upon the prosecution
the burden proving by a preponderance of the evidence the nonexistence of the
11
presumed fact. Thus, the prosecution must prove that the required advisements were
given. (People v. Dubon, supra, 90 Cal.App.4th at p. 954.)
A court’s minute order indicating that the Penal Code section 1016.5 advisement
was given can constitute a “record” that the advisement was given sufficient to preclude
the presumption from arising. (People v. Dubon, supra, 90 Cal.App.4th at p. 954.)
However, as a Penal Code section 1016.5 advisement must address deportation,
exclusion, and denial of naturalization, a minute order which does not indicate that all
three issues were addressed is insufficient. (Id. at p. 955.) Nonetheless, once the
rebuttable presumption has arisen, such a minute order constitutes “significant
evidence” rebutting the statutory presumption. (Ibid.) The minute order, considered in
combination with other evidence, may be sufficient to give rise to an inference that the
defendant was actually advised of the immigration consequences of the plea, and
overcome the rebuttable presumption of nonadvisement. (Id. at pp. 955-956.)
3. The Minute Order in the Instant Case
In the instant case, the minute order indicates that defendant was advised as to
“citizenship”; it does not indicate that he was advised as to deportation and exclusion.
As such, the minute order does not constitute a record that defendant was properly
advised under Penal Code section 1016.5, and the presumption of nonadvisement arises.
The minute order, however, does constitute some evidence that the defendant
was properly advised. It indicates that he was orally advised at least as to “citizenship.”
The minute order also indicates that defendant was additionally advised of rights in
writing, and with the advice of counsel. It further indicates that the court found that
12
defendant’s waivers of rights were made knowingly, understandingly, and explicitly,
giving rise to an inference that there was some additional colloquy on the subject prior
to the acceptance of defendant’s plea. Standing alone, however, the minute order is
insufficient to overcome the rebuttable presumption. As in People v. Dubon, supra,
90 Cal.App.4th at p. 955, it must be combined with additional evidence.
4. The Standard Advisement of Rights Form
In this case, the prosecution sought to provide that additional evidence in the
form of the standard advisement of rights form in use at the time of defendant’s plea.
Defendant argued that the form proferred by the prosecution was not properly
authenticated, and we agree. Authentication of a writing is required before it may be
received in evidence. (Evid. Code, § 1401, subd. (a).) To authenticate the document, its
proponent must establish that the document is the writing it purports to be. (Evid. Code,
§ 1400.)
According to the prosecution, the standard form submitted was the standard
advisement of rights form in use at the time of defendant’s plea in the court in which the
plea was taken. The evidence that the form was the standard advisement of rights form
in use in 1991, however, was Attorney Lee’s testimony that Ilich had told her that the
1989 form was used in 1991.4 Attorney Lee had no personal knowledge of the fact.
Ilich’s statement that the 1989 form was used in 1991 was clearly hearsay (Evid. Code,
4
Ilich did not actually tell Attorney Lee that the 1989 form had been used in 1991;
however, this fact could be inferred from the facts Ilich did tell her.
13
§ 1200), and the prosecution offered no possible exception to the hearsay rule.5
A declaration of Ilich himself might be sufficient (Evid. Code, §§ 1271, 1280), but there
is no declaration from him. The prosecution suggests that the document is
self-authenticating in this respect, as it contains the notation “PRU-200 (1-89)” on the
bottom, from which the reader could infer it is the January 1989 version of the
document. Even if this were a reasonable inference,6 the only evidence that this
document was not superseded until 1992 is Ilich’s hearsay statement recited in
Attorney Lee’s declaration.
The evidence authenticating the document as the standard advisement of rights
form in use in the court in which defendant’s plea was taken is also lacking. Attorney
Lee personally obtained the document from the Planning and Research Division of the
Superior Court. This therefore constitutes sufficient evidence that the form was, in fact,
a Los Angeles court document. The form itself is captioned for use in a municipal
court; this therefore constitutes sufficient evidence that the form was used in
Los Angeles Municipal Court. However, the form could have been one of many; there
is no evidence that every courtroom in the Los Angeles Municipal Court used the form.
It is not identified as a mandatory form (see Cal. Rules of Court, rule 1.30(b)). The only
evidence giving rise to the conclusion that this form was used in the courtroom where
5
Before this court, the prosecution argues that the form itself is not hearsay as the
issue is whether the immigration advisement contained therein was given, not whether it
was true. Defendant’s hearsay objection, however, does not relate to the language in
the form, but Attorney Lee’s declaration purporting to authenticate it.
6
There is little indicating that the “1-89” refers to the date of the form revision.
14
defendant’s plea was taken is Attorney Lee’s statement that Ilich “informed [her] that
his office had taken great care in providing me all the forms and I was in possession of
all Misdemeanor Advisement of Rights forms used by the courts in Los Angeles from
1982 through 2005.” The statement, again, is inadmissible hearsay. The standard form
on which the prosecution sought to rely is not sufficiently authenticated, and the trial
court abused its discretion by relying on the document.7
The prosecution raises two additional arguments to support the trial court’s
consideration of the standard advisement of rights form it proferred. Neither is
persuasive. First, the prosecution argues that the court could take judicial notice of the
form as an official record of the court. (Evid. Code, § 452, subd. (d).) This does not
resolve the authentication issue; judicial notice does not establish that the document was
in use in all Los Angeles Municipal courtrooms in 1991. Second, the prosecution relies
on the trial court’s comments that the court had seen many similar forms in many
similar motions, and they were all “correct.”8 The trial court’s familiarity with other
cases has no bearing on the instant case.
7
At the trial court’s invitation, Attorney Lee stated that it was the custom and
habit that the form was used at the time, but this statement was based on her
conversations with Ilich, not any personal knoweldge.
8
We note that while the trial court mentioned this in passing, there is nothing in
the record suggesting that the trial court relied on evidence in other cases in the court’s
disposition of the instant case. The prosecution argues that the trial court could have
done so, relying on People v. Ravaux (2006) 142 Cal. App. 4th 914, 918. In that case,
the defendant, prior to sentencing, moved to withdraw his plea on the basis that his
judgment had been affected by medication at the time. The trial court, which had
presided over the plea hearing, relied on the court’s own perception of the defendant’s
demeanor and performance at that hearing. The appellate court ruled that it was entirely
15
5. Properly Authenticated, Such Forms May Be Admissible
Although the standard advisement of rights form was not properly authenticated
in the instant case, we can certainly envision a situation in which a properly
authenticated form is admissible and relevant. When a document is no longer in
existence, its contents may be established by secondary evidence, including oral
testimony and standard forms. (Dart Industries, Inc. v. Commercial Union Ins. Co.
(2002) 28 Cal. 4th 1059, 1070.) When there is evidence, as in this case, that a defendant
executed a written advisement of rights form, and it can be inferred that the form was
a standard form, a copy of the standard form itself constitutes evidence of the form the
defendant executed, and is therefore admissible.
We do note, however, that the issue of whether the standard advisement of rights
form can be sufficient evidence, when combined with a minute order, to overcome the
rebuttable presumption of nonadvisement will depend on the facts of the specific case.
In People v. Dubon, supra, 90 Cal.App.4th at p. 949, the inadequate minute order was
supplemented by a declaration of the retired judge who had taken the plea that, although
he had no independent recollection of the case, his custom and practice was to take
pleas himself, and that he specifically gave the Penal Code section 1016.5 advisement in
every case. In People v. Ramirez, supra, 71 Cal.App.4th at p. 523, the record
established that the trial court inquired into whether the defendant had reviewed the
within the court’s discretion to consider its own observations of the defendant.
Obviously, the trial court was a percipient witness to the defendant’s behavior at the
hearing in question. This is a far cry from a trial court using its familiarity with
evidence introduced in other cases to establish the evidence in the instant case would be
the same.
16
form with his attorney, whether it had been translated into Spanish, and whether he
understood the advisements discussed. In People v. Quesada, supra, 230 Cal.App.3d at
p. 536, the court stated that advisements in a written form are sufficient if “the
defendant and his counsel are questioned concerning that form to ensure that defendant
actually reads and understands it.”
As the form in the instant case was inadmissible, we need not determine whether
the trial court abused its discretion in concluding that the form, when combined with the
minute order, was sufficient to overcome the rebuttable presumption. Certainly,
evidence regarding the standard practices of the judge who took the plea9 or defendant’s
counsel10 would have provided greater evidence.
6. Remand Is Appropriate
As we have concluded that the trial court erred in considering the standard
advisement of rights form, and the minute order alone is insufficient to overcome the
rebuttable presumption, we will reverse the trial court’s denial of defendant’s motion to
vacate the judgment and withdraw his plea. However, as the trial court did not reach the
issues of due diligence or prejudice, we remand to give the trial court the opportunity, in
the first instance, to consider them.
9
The record here indicates the judge was not available.
10
The prosecution’s opposition to defendant’s motion to withdraw his plea states
that the defendant was represented by “F. Barcelo, Deputy Public Defender.” The
minute order of the plea indicates that defendant was represented by “Cho Deputy
Public Defender.” F. Barcelo was the Spanish interpreter. There is no indication either
individual was contacted.
17
At oral argument on appeal, it became clear that the evidence submitted by both
parties in connection with defendant’s motion was, perhaps, not the best evidence they
could have submitted. Considerations of justice compel the conclusion that both parties
should be permitted to submit additional evidence. Should the prosecution continue to
rely on the standard advisement of rights form it submitted, the prosecution should, if it
can, present evidence authenticating the document without running afoul of the hearsay
rule. Additionally, as other cases have demonstrated, the prosecution may wish to meet
its burden of overcoming the rebuttable presumption with evidence regarding the
standard practices of the judge who took defendant’s plea or those of defendant’s
counsel. For his part, defendant may wish to modify his submissions to explain when
he first learned of the immigration consequences of his conviction and why he was
diligent in bringing his motion when he did. Defendant may also, if he can, provide
additional evidence on the issue of prejudice, specifically addressing the issues of:
(1) whether, at the time of the motion, there existed more than a remote possibility that
he would suffer one of the adverse immigration consequences specified in Penal Code
section 1016.5; and (2) whether, if he would not have been able to have negotiated an
immigration-neutral plea, he would have proceeded to trial.
18
DISPOSITION
The order denying defendant’s motion to vacate the judgment and withdraw his
plea is reversed and the matter is remanded for further proceedings consistent with the
views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, Acting P. J.
WE CONCUR:
KITCHING, J.
ALDRICH, J.
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