People v. Merlos CA2/3

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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.

19