Opinion
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of the County of Los Angeles No. YA053870, Rodney G. Forneret, Judge.
Jaak Olesk for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Kenneth N. Sokoler and Eric Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
After executing a plea form and admitting on the record that she had reviewed the form with her attorney before signing it and understood everything on the form, defendant pleaded guilty to one count of felony grand theft. Although she was initially placed on probation, defendant repeatedly violated the terms of her probation and ultimately was sentenced to two years in prison.
When federal immigration authorities began deportation proceedings against her based on the felony conviction, defendant moved the trial court for an order vacating the judgment and withdrawing her plea under Penal Code section 1016.5. After hearing testimony from defendant and the attorney who represented her in connection with her plea, and taking judicial notice of defendant’s plea form and the transcript of her guilty plea, the trial court denied the motion.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant appeals from the denial of her motion under section 1016.5, arguing that there was no evidence that the trial court read the required immigration consequences advisement to defendant on the record prior to accepting her guilty plea. We hold that under the applicable standard of review and case law interpreting section 1016.5, the trial court properly determined that defendant had been given the required advisement prior to the entry of her guilty plea. We therefore affirm the order denying defendant’s motion to vacate the judgment under section 1016.5.
PROCEDURAL BACKGROUND
A. Guilty Plea, Probation, and Sentencing
In December 2002, the Los Angeles County District Attorney charged defendant in a felony complaint with one count of grant theft of personal property in violation of Penal Code section 487, subdivision (a), a felony. Defendant pleaded not guilty.
The complaint identified the personal property as a 2002 Ford Explorer belonging to Hertz Corporation.
On January 15, 2003, pursuant to a plea bargain, defendant withdrew her not guilty plea and pleaded guilty to the charge of grand theft. On December 2, 2003, the trial court suspended imposition of sentence and placed defendant on formal probation for a period of three years, on the condition that she serve 120 days in the county jail.
In February 2005, the trial court held a bench warrant hearing during which defendant admitted a probation violation. The trial court reinstated probation on the same terms and conditions, except that defendant was required to serve an additional 180 days in county jail.
In November 2005, the trial court held a probation violation hearing and revoked defendant’s probation pending a further hearing. In April 2006, the trial court held a further hearing during which defendant admitted the probation violation. The trial court ordered that probation was to remain revoked and imposed the midterm sentence of two years in state prison.
B. Motion to Vacate and Withdraw Plea
On May 25, 2007, defendant—represented by new counsel—filed a motion to vacate the judgment and withdraw her guilty plea pursuant to section 1016.5 or, in the alternative, to vacate the judgment and withdraw her guilty plea on the ground of ineffective assistance of counsel. On July 11, 2007, the trial court held a hearing on defendant’s motion.
At the outset of the hearing, the trial court read into the record the text of the transcript of defendant’s January 15, 2003, guilty plea. Among other things, the transcript reflected defendant’s admission on the record that she reviewed the written plea form with her counsel and that her counsel explained her Constitutional rights to her and answered all of her questions about the form. The transcript further reflected defendant’s admission that she initialed individual paragraphs on the plea form and signed it. She also acknowledged in the transcript that her signature indicated that she read and understood everything set forth in the form and wanted to give up the rights specified in the form. And, the transcript reflected that the trial court did not otherwise specifically give defendant an oral warning regarding the immigration consequences of a guilty plea.
After reading the transcript of defendant’s guilty plea into the record, the trial court made reference to “a written waiver [plea form] that was filled out, initialed and signed by defendant.” In particular, the trial court referenced paragraphs 10 and 19 of the plea form, which read as follows: “10. I understand that if I am not a citizen of the United States, the conviction for the offense charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. [¶] . . . [¶] 19. I have personally initialed each of the above boxes and discussed them with my attorney. I understand each and every one of the rights outlined above and I hereby waive and give up each of them in order to enter my plea to the above charges.” The trial court also noted that defendant’s initials appeared next to paragraphs 10 and 19, and that she had dated and signed the form.
The copy of the plea form in the appellate record has the word “may” in paragraph 10 stricken through and the handwritten word “will” inserted in its place.
Defendant’s counsel began his argument by withdrawing defendant’s motion based on ineffective assistance of counsel and indicating that defendant would proceed only on her motion under section 1016.5. Defendant’s counsel then informed the trial court that when he reviewed the court file on May 11, 2007, there was no plea form in the file. The trial court responded that when it reviewed the file shortly after the May 25 filing of defendant’s motion, the plea form was in the file. To address the issue, the trial court called Ms. Downing—the attorney who represented defendant on the date she entered her plea. Ms. Downing testified that the plea form in the court file was the form she read and explained to defendant and thereafter signed as defendant’s attorney on the day the guilty plea was entered. On cross-examination by defendant’s attorney, Ms. Downing explained that the deputy district attorney had crossed out the word “may” in paragraph 10 of the plea form and written the word “will.”
Defendant’s counsel testified on her behalf, and repeated under oath that when he reviewed the court file at the Lancaster courthouse on May 11, 2007, the plea form to which the trial court had been referring was not in the file. Defendant’s counsel stated that he read everything in the file carefully, and did not believe he could have missed the plea form.
Defendant testified that she was “under legal proceedings to be deported.” She also stated that before she entered her guilty plea, she was not warned of the consequences that pleading guilty could have for a noncitizen.
But on cross-examination, defendant admitted that Ms. Downing represented her on the date she entered the guilty plea and that Ms. Downing had explained certain of her Constitutional rights to her. She also admitted that she initialed paragraph 10 and signed the plea form. Nevertheless, she insisted that she did not understand the entire form.
The prosecution recalled Ms. Downing, who confirmed that defendant initialed and signed the plea form before Ms. Downing signed it, and that the word “may” in paragraph 10 had been stricken and the word “will” inserted before defendant or Ms. Downing signed the form. Ms. Downing also confirmed that she read paragraph 10 to defendant before defendant initialed it, and that she advised defendant that a guilty plea could affect her immigration status.
On cross-examination by defendant’s counsel, Ms. Downing testified that in 2003, approximately two-thirds of her clients were noncitizens. She also stated that she had been practicing law for 14 years and had attended several seminars on immigration.
After testimony concluded, the trial court ruled as follows: “[The Court]: It is clear to the court that defendant was, in fact, advised of the consequences of her plea as it affects immigration. [¶] Attorney Downing did go over the entire form with the defendant, including paragraph 10, which does, in fact, indicate the immigration consequences. . . . [D]efendant did, in fact, initial it and signed it, and, unfortunately, this is something that has come back to haunt the defendant. [¶] It is easy now to claim that maybe she didn’t read it. [¶] I don’t remember, but it is clear. [¶] The documents are executed. [¶] [Deputy District] Attorney Schorr made the proper inquiries of the defendant. [¶] Attorney Downing’s testimony is clear as to what happened, and she wasn’t hazy or fuzzy with going over the document with [defendant]. [¶] It appears that [Ms. Downing] had records of various meetings when she met with [defendant] and, also, [she attended] the seminars dealing with immigration consequences. And she had been practicing for 14 years at the time. [¶] It is clear that we don’t have an inexperienced lawyer. [¶] It is clear that, given the number of cases that she had handled, she indicated like two-thirds of her clients could possibly be subject to I.N.S. handling or consequences, . . . that, in fact, she did properly advise the defendant, and the defendant did properly waive and understand the consequences of the deportation, immigration and/or naturalization. [¶] Therefore, the motion is denied.”
DISCUSSION
A. Standard of Review
A trial court’s ruling on 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; see also § 1016.5, subd. (c).) “When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. (People v. Harvey (1984) 151 Cal.App.3d 660, 666-667 [198 Cal.Rptr. 858]; People v. Urfer (1979) 94 Cal.App.3d 887, 891-892 [156 Cal.Rptr. 682]; People v. Cruz (1974) 12 Cal.3d 562, 566 [116 Cal.Rptr. 242, 526 P.2d 250].) On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. (People v. Harvey, supra, at pp. 666-667; People v. Urfer, supra, at pp. 891-892; In re Brown (1973) 9 Cal.3d 679, 685 [108 Cal.Rptr. 801, 511 P.2d 1153].) An abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316 [228 Cal.Rptr. 197, 721 P.2d 79].)” (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.)
Section 1016.5 provides that “[p]rior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions 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, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (§ 1016.5, subd. (a).)
Section 1016.5 includes a specific remedy for a trial court’s failure to administer the required advisement. “If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” (§ 1016.5, subd. (b).) “Absent a record that the court provided the advisement required” by section 1016.5, subdivision (a), the defendant is “presumed not to have received” it. (Ibid.)
“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. (Zamudio, supra, 23 Cal.4th at pp. 192, 199-200; People v. Dubon (2001) 90 Cal.App.4th 944, 951-952 [108 Cal.Rptr.2d 914].) On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. (Zamudio, supra, 23 Cal.4th at pp. 209-210.) Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. (Id. at pp. 199, 207, 209-210.) Thus, in deciding the merits of defendant’s motion to vacate, it may be important for the trial court to determine the factual issue of knowledge.” (People v. Totari (2002) 28 Cal.4th 876, 884.)
C. Ruling on Motion to Vacate
In this case, defendant contends that there was no evidence that she was given the required immigration consequences advisement on the record by the trial court. In doing so, she suggests that, regardless of the language of the plea form that she signed, the trial court was required under the statute to read the advisement to her in open court, while the court reporter transcribed it.
The suggestion by defendant’s attorney on appeal that the plea form was not in the file—an assertion contradicted by others—has no bearing because no one disputes that there was a plea form signed by defendant.
In People v. Quesada (1991) 230 Cal.App.3d 525 (Quesada), the defendant made a similar argument. “[T]he issue before us is not whether defendant was in fact apprised of the immigration consequences of his conviction, but whether he must have been advised orally of those consequences by the judge receiving his plea.” (Id. at p. 533.)
In Quesada, supra, 230 Cal.App.3d 525, the defendant testified that his attorney had explained “some of” the plea form, but not the paragraph explaining the immigration consequences. (Id. at p. 532.) But he admitted that his attorney read the entire form to him, and he signed the form. (Ibid.) Nevertheless, the defendant contended that when he signed the plea form he was unaware that there might be immigration consequences or that he had immigration problems. (Ibid.)
In rejecting the defendant’s construction of section 1016.5, the court in Quesada, supra, 230 Cal.App.3d 525, reasoned that “the legislative purpose of ensuring a defendant is aware of the possible immigration consequences of a guilty plea and is given sufficient time to consider the choice of plea, is best and most reasonably served by construing the word ‘court’ as used in section 1016.5 to refer to the tribunal in which defendant enters his plea. Under this construction, the advisement referred to therein may be given through any of the numerous individuals acting on behalf of that tribunal, including the judge, counsel, the court reporter, or the clerk. So long as the legislative purpose is advanced by having some person acting on behalf of the tribunal actually advise defendant of the immigration consequences of his plea and that advice is reflected ‘on the record,’ the actual adviser is immaterial. Indeed, it is common practice for the prosecutor or defense counsel, rather than the judge, to advise the defendant of his rights and the consequences of a guilty plea, including the immigration consequences, and to elicit the necessary waivers of those rights. (See, e.g., People v. Valenciano (1985) 165 Cal.App.3d 604, 605 [211 Cal.Rptr. 651]; Cal. Criminal Trial Judges’ Benchbook (1988) Change of Plea, § 7.G, pp. 279-280 [‘By the Court or District Attorney: . . . 18. If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Do you understand that?’] The construction advanced by defendant, on the other hand, would exalt form over substance and would place an unnecessarily restrictive burden on our trial courts. After all, the dispositive question is whether the defendant has been advised of the immigration consequences of his plea as required by the statute, not who gave the admonition. ‘The critical issue under section 1016.5 is whether a defendant has been advised that his guilty plea may have immigration consequences.’ (People v. Barocio (1989) 216 Cal.App.3d 99, 105 [264 Cal.Rptr. 573]; accord People v. Soriano (1987) 194 Cal.App.3d 1470, 1475 [240 Cal.Rptr. 328, 65 A.L.R.4th 705].)” (Quesada, supra, 230 Cal.App.3d at pp. 535-536.)
The court in Quesada, supra, 230 Cal.App.3d 525 went on to explain that the required advisement did not have to be given orally. “Nor need the statutory admonition be given orally. It is sufficient if, as here, the advice is recited in a plea form and the defendant and his counsel are questioned concerning that form to ensure that defendant actually reads and understands it. . . . [¶] ‘Thus, a defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney. . . . [¶] . . . So long as the waiver form contains sufficient information, and both the defendant and his counsel attest to its valid execution, the judge may, in his discretion, dispense with further explanation to the defendant of his rights.’ ([In re Ibarra (1983)] 34 Cal.3d [277,] 285-286.)” (Quesada, supra, 230 Cal.App.4th at pp. 536-537.)
Here, as in Quesada, supra, 230 Cal.App.3d 525, there was competent evidence—in the form of Ms. Downing’s testimony—that defendant’s attorney read the plea form to her and that defendant understood it. Moreover, defendant, under questioning from the prosecutor, admitted both of those facts on the record, and she admitted that she initialed paragraphs 10 and 19 and signed the plea form. Such evidence was sufficient to support an inference that defendant was in fact advised of the immigration consequences in the language required by the statute. Therefore, as in Quesada, it was not necessary for the trial court to provide defendant with a “ritual recitation” of her rights. Based on the state of the evidentiary record before the trial court, it appears the court properly determined that defendant read and understood the contents of the form and discussed the form with Ms. Downing. It was therefore within the trial court’s discretion to dispense with a further explanation of the immigration consequences of her plea. Because the exercise of that discretion was not arbitrary, capricious, or patently absurd, we must affirm the trial court’s order denying defendant’s motion to vacate under section 1016.5.
DISPOSITION
The order denying defendant’s motion to vacate the judgment under section 1016.5 is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.