People v. Suarez CA4/2

Filed 9/8/16 P. v. Suarez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063972
v. (Super.Ct.No. RIF093932)
EVERARDO GOVEA SUAREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard Todd Fields,
Judge. Affirmed.
Jennifer M. Sheetz for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B.
Truong, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 2001, defendant and appellant Everardo Govea Suarez pleaded guilty to felony
possession of a controlled substance, to wit, methamphetamine, for sale (Health & Saf.
Code, § 11378). Fourteen years later, he moved to vacate the conviction and set aside his
guilty plea pursuant to Penal Code section 1016.5.1 The trial court denied the motion.
Defendant appeals from the denial of the motion, arguing he was not adequately advised
about the conviction’s immigration consequences and the plea agreement was not
properly executed. We conclude the trial court complied with the requirements of
section 1016.5 in accepting defendant’s 2001 guilty plea and affirm the order denying the
motion.
I
FACTUAL AND PROCEDURAL BACKGROUND
When defendant entered the guilty plea, he and his attorney completed and signed
a preprinted felony plea form. The form, among others, included advisement of his rights
and consequences of his plea. Under penalty of perjury, defendant initialed the following
statement: “If I am not a citizen of the United States, I understand that this conviction
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
also signed the plea form below a statement declaring and confirming he understood and
waived each of the rights described in the plea form. In addition, defendant’s counsel
signed the plea form below a statement confirming defendant had an adequate
1 All future statutory references are to the Penal Code unless otherwise stated.
2
opportunity to discuss the case with him and that defendant understood the consequences
of his guilty plea. Furthermore, during the plea hearing, defendant and his counsel
confirmed that he was advised of, and understood, all the consequences of his guilty plea.
After directly examining defendant, the trial court found defendant knowingly,
intelligently, freely, and voluntarily waived his rights and that defendant understood the
charges and the consequences of the plea.
In March 2015, defendant contacted an immigration attorney to become a
naturalized citizen. In reviewing defendant’s file, the attorney advised defendant there
were no grounds to challenge his removal from the United States due to his conviction.
Under federal law a conviction for possession of a controlled substance with intent to sell
constitutes an aggravated felony, rendering a noncitizen subject to deportation (8 U.S.C.
§ 1227(a)(2)(A)(iii)).
Defendant subsequently contacted a criminal defense attorney, and on April 17,
2015, defendant filed a motion to vacate his conviction and set aside the guilty plea. He
declared that he did not remember signing anything at the time regarding his rights; that
he did not recall receiving any court admonishment regarding his immigration
consequences; that his attorney did not discuss any other potential non-deportable pleas
with him; and that had he been warned of the actual immigration consequences he would
not have pleaded guilty to the offense but would have asked his attorney to do whatever
necessary to avoid immigration consequences.
3
A hearing on defendant’s motion was held on June 22, 2015. At that time,
defendant’s retained counsel argued that the trial court’s findings and orders were not
part of the plea form, noting “[i]t’s actually included in almost every plea form that exists
throughout the State of California . . . because in most counties, many of the pleas are
done by waiver and not orally.” The trial court responded, “we have the exact same
thing. It’s in the minutes. We just all say what we say here in open court. ‘After directly
examining the defendant.’ In some ways I think it’s better to have the judge actually say,
directly on the record. That’s why you find it in the minutes. Where it says, The Court
finds.” (Sic.) Defense counsel then questioned how a minute order is not hearsay, stating
“The minute order is just a reflection of . . . what a clerk is putting . . . in after it was
done.” The court disagreed, explaining that under Evidence Code section 664, a minute
order is “presumed an official duty regularly performed.” The court further stated,
“That’s where the minutes reflect the judge has made a finding that the plea was
knowingly and intelligently, freely and voluntarily given. There’s an official
presumption under Evidence Code Section 664 that our official duties are regularly
performed.” Defense counsel thereafter objected to the minute order to determine the
findings made at the plea hearing as potentially inaccurate, stating that a clerical error
may have occurred “in terms of transferring information from one person to the next, and
multiple layers of hearsay.” The court responded that it was “quite satisfied that the
minutes reflect what happened here in open court.” The court further noted that it had
not “heard anything to overcome” the presumption that an official duty had been
4
regularly performed. In conclusion, the court denied defendant’s motion, finding that in
reviewing the entire record, defendant was advised of the consequences of his guilty plea;
that defendant had an opportunity to discuss those consequences with his counsel; and
that defendant understood the advisements and the consequences of his plea.
II
DISCUSSION
Defendant argues the trial court abused its discretion in denying his motion to
vacate his conviction and set aside his guilty plea. Specifically, he insists his conviction
was obtained by a plea agreement that was not “ ‘properly executed’ ” because the plea
waiver form did not contain a “judicial ‘findings and order’ by the court as required
under the law.” He, therefore, maintains that because the plea waiver form was not
properly executed, it was inadmissible as evidence that the court advised him of the
immigration consequences at the time of the plea.
A trial court’s denial of a motion to vacate under section 1016.5 is reviewed for
abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192
(Zamudio).) The court deciding whether the defendant has made a sufficient showing
under section 1016.5 “is the trier of fact and . . . the judge of the credibility of the
witnesses or affiants. Consequently, it must resolve conflicting factual questions and
draw the resulting inferences. [Citation.]” (People v. Quesada (1991) 230 Cal.App.3d
525, 533 (Quesada), superseded by statute on other grounds as stated in People v. Totari
(2003) 111 Cal.App.4th 1202, 1206-1207, fn. 5.)
5
“Before accepting a plea of guilty or no contest, a trial court is statutorily required
to advise a defendant that if the defendant is not a citizen of this country, the plea could
result in deportation, exclusion from the United States, or denial of naturalization. (Pen.
Code, § 1016.5, subd. (a).)” (People v. Arriaga (2014) 58 Cal.4th 950, 955 (Arriaga).) 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 (Ramirez); Quesada, supra, 230 Cal.App.3d at p. 536.) Nor is 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. (Quesada, supra, at pp. 535-536.)
If the court fails to give the admonition required by subdivision (a), upon
defendant’s motion, it must vacate the judgment and allow the defendant to withdraw his
or her plea and enter a plea of not guilty if the defendant can show that the conviction or
offense to which he or she pleaded guilty or nolo contendere might result in his or her
deportation, exclusion from admission to the United States, or in denial of naturalization.
(§ 1016.5, subd. (b).) To succeed on a motion to vacate under section 1016.5, “a
defendant must establish (1) that the advisements were not given; (2) that the conviction
may result in adverse immigration consequences; and (3) that the defendant would not
have pled guilty or no contest had proper advisements been given.” (Arriaga, supra, 58
6
Cal.4th at pp. 957-958; accord, People v. Totari (2002) 28 Cal.4th 876, 884; Zamudio,
supra, 23 Cal.4th at p. 192.) We are concerned, in this case, with the first element.
The governing statute provides that the advisement shall be administered “on the
record.” (§ 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.” (§ 1016.5, subd. (b).) This constitutes a rebuttable presumption
affecting the burden of proof. It places upon the prosecution the burden of proving by a
preponderance of the evidence the nonexistence of the presumed fact. Thus, the
prosecution must prove that the required advisements were given. (People v. Dubon
(2001) 90 Cal.App.4th 944, 953-954 (Dubon).)
A court’s minute order indicating that the section 1016.5 advisement was given
can constitute a “ ‘record’ ” that the advisement was given sufficient to preclude the
presumption from arising. (Dubon, supra, 90 Cal.App.4th at p. 954.) However, as a
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.)
7
In the instant case, the February 27, 2001 minute order of the plea hearing
indicates that defendant was advised as to the charges and “consequences” of his plea.
The minute order also indicates that defendant was advised of his constitutional rights,
and with the advice of counsel. It further indicates that the court found that defendant’s
waivers of rights were made freely, knowingly, voluntarily, and understandingly and that
defendant understood the nature of the charges and the consequences of his plea.
However, the minute order alone does not constitute a record that defendant was properly
advised under section 1016.5, and the presumption of nonadvisement arises. In other
words, standing alone, the minute order is insufficient to overcome the rebuttable
presumption. As in Dubon, supra, 90 Cal.App.4th at p. 955, it must be combined with
additional evidence.
The minute order notes that the “Advisement of Rights form [plea waiver form]
signed by defendant is incorporated herein . . . .” On the plea form, defendant initialed,
under penalty of perjury, the paragraph that stated: “If I am not a citizen of the United
States, I understand that this conviction 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 also signed the plea form below a statement
declaring and confirming he understood and waived each of the rights described in the
plea form. In addition, defendant’s counsel signed the plea form below a statement
confirming defendant had an adequate opportunity to discuss the case with him and that
8
defendant understood the consequences of his guilty plea. The plea form was initialed,
signed, and filed with the superior court on February 27, 2001.
Besides the minute order and the plea form, the record also includes the reporter’s
transcript of the February 27, 2001 plea hearing. This reporter’s transcript demonstrates
that defendant confirmed he was advised of, and understood, all of the consequences of
his guilty plea. In relevant part, defendant answered in the affirmative whether he
initialed and signed the plea form; whether he “carefully and thoroughly” reviewed the
plea form with his attorney; whether he “carefully” reviewed the section that stated
“ ‘Consequences of your Plea’ ”; and whether he was aware of all of the consequences of
his plea. In fact, the court twice inquired of defendant whether he adequately reviewed
the consequences of his plea. In addition, defense counsel joined in the waiver of
defendant’s rights and change of plea and defendant answered in the negative as to
whether he had any questions about anything on the plea form. After directly examining
defendant, the court found defendant knowingly, intelligently, freely, and voluntarily
waived his rights and that defendant understood the charges and the consequences of the
plea.
The minute order of the plea hearing, the validly executed plea form, and the
reporter’s transcript of the plea hearing together are sufficient to meet the People’s
burden that defendant was adequately advised of, and understood, the immigration
consequences of his plea.
9
Although not disputing the adequacy of the language of the plea form or the
initials and signatures contained within the plea form, defendant argues his plea form was
inadmissible and insufficient to show the advisement of rights and the consequences of
his plea, because it does not include, as part of the plea form, an order and findings from
the court showing it determined defendant understood the consequences of his plea and
knowingly and voluntarily waived those rights. We find defendant’s arguments
unpersuasive. Initially, we note the findings and order by the court were made orally at
the time of the plea hearing. Second, these findings and order were properly recorded in
the court’s minute order of the plea hearing. Defendant does not challenge the adequacy
or authenticity of his signed, initialed and dated plea form or the court’s minute order of
the plea hearing or the reporter’s transcript of the plea hearing. Moreover, defendant
does not cite to, nor are we aware, that defendant’s executed plea form was inadmissible
as a “properly executed” plea form, because it did not contain the findings and order of
the court. When there is evidence, as in this case, that a defendant executed a written
advisement of rights form, a copy of that form itself constitutes evidence of the form the
defendant executed, and is therefore admissible. (Ramirez, supra, 71 Cal.App.4th at
pp. 521-523.)
In 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 section 1016.5 advisement in every case. In
10
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.”
In Ramirez, supra, 71 Cal.App.4th 519, the court concluded section 1016.5 does
not require a trial court to orally advise a defendant of the possible immigration
consequences of a guilty plea; the written change of plea form signed by the defendant
satisfied the section 1016.5 requirements. (Ramirez, at pp. 521-523.) Citing In re Ibarra
(1983) 34 Cal.3d 277 (Ibarra), the Ramirez court noted that the “Supreme Court has held
a validly executed waiver form is a proper substitute for verbal admonishment by the trial
court.” (Ramirez, supra, 71 Cal.App.4th at p. 521.) Although the court in Ibarra
expressly addressed the constitutionally mandated advisements required under Boykin v.
Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl),
Ramirez concluded its reasoning was equally applicable to legislatively mandated
advisements. (Ramirez, at pp. 521-522.) Ramirez also stated, “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. [Citation.]”
(Ramirez at p. 522.) Because the record contained a copy of the change of plea form
signed by the defendant, which warned of all three possible immigration consequences,
and showed that the trial court asked the defendant whether he reviewed the form with
11
his attorney and understood it, the Ramirez court affirmed the trial court’s denial of the
defendant’s section 1016.5 motion. (Ramirez, supra, 71 Cal.App.4th at p. 523.)
According to Ramirez, neither the language nor the purpose of section 1016.5
requires a trial court to orally advise a defendant of the possible immigration
consequences before accepting a guilty plea. Rather, a written change of plea form
describing those possible immigration consequences may, if duly signed and understood
by the defendant after having an opportunity to review it and ask questions of his counsel,
satisfy the section 1016.5 requirements. As with the Boykin-Tahl rule discussed in
Ibarra, the underlying purpose of section 1016.5 is to ensure the defendant has actual
knowledge of the possible immigration consequences of a guilty plea and has had an
opportunity to make an intelligent choice to plead guilty. (Ibarra, supra, 34 Cal.3d at
p. 285; Ramirez, supra, 71 Cal.App.4th at p. 522; Quesada, supra, 230 Cal.App.3d at
pp. 535-536; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.)
Relying on People v. Akhile (2008) 167 Cal.App.4th 558 (Akhile), defendant
further asserts that “because the plea form did not include the court’s finding and order, it
is not clear when the plea form was reviewed by defendant.” Defendant’s reliance on
Akhile is misplaced. In Akhile, the [defendant] was advised of potential immigration
consequences at his arraignment in December 1991. (Akhile, at p. 561.) He pleaded
guilty in February 1992. The record did not reflect that section 1016.5 advisements
were given at the time of his plea. (Akhile, at p. 561.) The Akhile court held that
section 1016.5 requires that the advisements “must occur within the context of the taking
12
of the plea,” so the advisements two months earlier did not comply with section 1016.5.
(Akhile, at p. 564.) The Akhile court noted that “a defendant may plead guilty to a
different charge or charges than those involved at the arraignment, and some defendants
may be confused as to whether the advisement continues to apply.” (Akhile, at p. 564.)
Unlike Akhile, this case does not involve premature advisements. Defendant
received the section 1016.5 advisements by way of the waiver plea form on the very day
that he entered his plea, and he acknowledged orally before the court when he entered his
plea that he understood the advisements in the waiver plea form. Thus, the advisements
were given “within the context of the taking of the plea” (Akhile, supra, 167 Cal.App.4th
at p. 564) and did not raise any of the concerns expressed in Akhile. Defendant expressly
entered a plea to the possession of a controlled substance for sale count in open court at
the same time that he acknowledged his understanding of the waiver form so he could not
have been confused about the identity of the offense to which the advisements in the
waiver form applied.
The evidence here established defendant was properly advised of his immigration
consequences in compliance with section 1016.5, and the trial court’s ruling was not an
abuse of discretion.
13
III
DISPOSITION
The trial court’s order denying defendant’s motion to vacate his 2001 conviction
and to withdraw his plea is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
SLOUGH
J.
14