People v. Bongato CA4/1

Filed 9/19/14 P. v. Bongato CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D060283

Plaintiff and Respondent,

v. (Super. Ct. No. SCS197724)

CONRADO DE VERA BONGATO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Stephanie

Sontag, Judge. Affirmed.

Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,

Assistant Attorneys General, Charles C. Ragland, Melissa Mandal and Marissa Bejarano,

Deputy Attorneys General, for Plaintiff and Respondent.
 Conrado De Vera Bongato appeals from an order denying his Penal Code1 section

1016.5 motion to vacate his conviction following his guilty plea to inflicting corporal

injury on a spouse (§ 273.5, subd. (a)). In part, he contends the trial court abused its

discretion in denying his motion because he established he had not been properly advised

of the immigration consequences of his plea. When Bongato's appeal in this case was

previously before us, we dismissed it for his failure to obtain a certificate of probable

cause. (People v. Bongato (Mar. 26, 2013, D060283) [nonpub. opn.].) Thereafter, the

California Supreme Court decided that a defendant is not required to obtain a certificate

of probable cause before appealing the denial of a motion to vacate a conviction based

upon allegedly inadequate advisement of immigration consequences of a plea. (People v.

Arriaga (2014) 58 Cal.4th 950, 955, 960.) On Bongato's unopposed motion, we recalled

the remittitur issued June 24, 2013,2 reinstated his appeal, and gave the parties the

opportunity to submit supplemental briefing on the merits of his claims. Having

1 All statutory references are to the Penal Code unless otherwise stated.
2 The general rule is that recall of remittitur may not be granted to correct legal
error, but only on grounds of fraud, mistake or inadvertence. (Pacific Legal Foundation
v. California Coastal Com. (1982) 33 Cal.3d 158, 165.) " ' "[A] decision is inadvertent if
it is the result of oversight, neglect or accident, as distinguished from judicial error." ' "
(In re Richardson (2011) 196 Cal.App.4th 647, 663.) However, we recall the remittitur
in this case under these unique circumstances, including the fact the attorney general
expressly declined to oppose the motion, for the limited purpose of ruling on the merits of
Bongato's claims under an exception to these rules based on the principle that " 'if
possible, appeals should be heard and decided on the merits . . . . ' " (Id. at p. 668,
quoting In re Serrano (1995) 10 Cal.4th 447, 458; see also People v. Mutch (1971) 4
Cal.3d 389, 396-397 [when error entitles defendant to writ of habeas corpus, the remedy
of recall of the remittitur may be deemed an adjunct to implement that right; In re McGee
(1951) 37 Cal.2d 6, 9 [appellate court may recall remittitur when decision was
improvidently rendered without due consideration of the facts of the case].)
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considered the matter, we conclude Bongato has not shown the trial court abused its

discretion in denying his motion. We reject Bongato's claim of prejudicially ineffective

assistance of counsel, and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Bongato is a citizen of the Philippines who had been living in the United States

since 1985. In December 2005, Bongato pleaded guilty to inflicting corporal injury on

his ex-spouse. The factual basis for the plea indicates he "head butted" her, injuring her

forehead.

At the time of his plea, Bongato was represented by counsel, and both signed a

Boykin-Tahl3guilty plea form. Bongato also initialed a box on the form that states: "I

understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my

removal/deportation, exclusion from admission to the U.S. and denial of naturalization.

Additionally, if this plea is to an 'Aggravated Felony' listed on the back of this form, then

I will be deported, excluded from admission to the U.S., and denied naturalization."

(Emphasis in original.) Bongato's attorney averred on the form: "I, the attorney for the

defendant in the above-entitled case, personally read and explained to the defendant the

entire contents of this plea form and any addendum thereto. I discussed all charges and

possible defenses with the defendant, and the consequences of this plea, including any

immigration consequences. I personally observed the defendant fill in and initial each

item, or read and initial each item to acknowledge his/her understanding and waivers. I

3 Boykin v. Alabama (1969) 395 U.S. 238 and People v. Tahl (1967) 65 Cal.2d 719.
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observed the defendant date and sign this form and any addendum. I concur in the

defendant's plea and waiver of constitutional rights."

At the plea hearing, the trial court questioned Bongato as to whether he had signed

the plea form and understood his constitutional rights, and Bongato affirmed he entered

into the plea and waived those rights freely and voluntarily, not based on any promises.

The court recited the terms of the plea, including the 365 days in custody, and Bongato

stated he understood that was his plea bargain. It found Bongato was in full possession

of his faculties, understood the nature of the proceeding, and freely and voluntarily

waived his constitutional rights. The court suspended imposition of sentence and placed

Bongato on three years formal probation, with 365 days in local custody.

In February 2010, Bongato unsuccessfully petitioned the court to modify his

sentence from 365 to 364 days, so he would not suffer the adverse immigration

consequences of a conviction for an aggravated felony. This court dismissed Bongato's

appeal from the order denying modification as from a nonappealable order.4

In May 2011, Bongato filed a pro se motion to vacate his conviction on grounds

the court failed to advise him of the immigration consequences of his plea, he failed to

fully understand the consequences of his plea, and he had suffered ineffective assistance

of his counsel. The court denied the motion. It first found Bongato had not acted with

reasonable diligence in bringing the motion and had engaged in piecemeal litigation,

4 We have granted Bongato's unopposed request for judicial notice of the appellate
record in Bongato's prior appeal. (People v. Bongato (Mar. 15, 2010, D056929 [appeal
dismissed]).)
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warranting summary reversal. It further found on the merits Bongato had not shown

entitlement to relief under section 1016.5; that he initialed a change of plea form having

advisements and also "told the court that he had read and understood the contents of [the

plea form]." The court ruled Bongato failed to demonstrate prejudice, i.e., that he would

not have entered into the plea in the first place had he received different advice. Finally

the court ruled it lacked jurisdiction to consider Bongato's ineffective assistance of

counsel claim.

In August 2011, Bongato filed an amended notice of appeal along with a request

for a certificate of probable cause. The trial court denied the request for a certificate of

probable cause on grounds Bongato had not shown reasonable constitutional,

jurisdictional, or other grounds for appeal relating to the legality of the proceedings.

DISCUSSION

I. The Trial Court Did Not Abuse its Discretion in Denying Bongato's Motion

Challenging each of the trial court's findings, Bongato contends the court abused

its discretion by denying his motion. He argues that in taking his plea, the court failed to

question him about the printed advice as to immigration consequences and that the plea

colloquy reveals he did not actually say he read and understood the plea form. Bongato

maintains he was prejudiced by the court's improper advisement. Finally, Bongato

argues his appointed counsel was prejudicially ineffective by agreeing to an erroneous

characterization of the posture of his case, asking to be relieved as counsel, and allowing

the matter to proceed as a habeas corpus petition.

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A. Legal Principles and Standard of Review

Before accepting a plea of guilty or no contest, a trial court is required to explain

to a defendant that "if the defendant is not a citizen of this country, conviction of the

charged offense 'may have the consequences of deportation, exclusion from admission to

the United States, or denial of naturalization . . . .' " (People v. Arriaga, supra, 58 Cal.4th

at p. 962; section 1016.5, subd. (a).5) "The defendant is then entitled to 'additional time

to consider the appropriateness of the plea in light of the advisement . . . . ' [Citation.]

The section contemplates a period during which the defendant, without risking the loss of

the existing plea bargain, can reconsider its value in light of the immigration

consequences that will result from it and attempt to negotiate a different bargain that will

not have the same consequences." (People v. Martinez (2013) 57 Cal.4th 555, 562, citing

§ 1016.5, subds. (b) & (d).)

Section 1016.5 "provides a remedy for a noncitizen defendant who is not advised

of these consequences: 'If . . . the court fails to advise the defendant as required by this

section and the defendant shows that conviction of the offense to which [the] 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 . . .

5 Section 1016.5 provides in part: "Prior to acceptance of a plea of guilty or nolo
contendere . . . , 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).) Subdivision (b) of the statute provides
in part: "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."
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the court, on [the] 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.' "

(People v. Arriaga, supra, 58 Cal.4th at p. 957, quoting § 1016.5, subd. (b); People v.

Martinez, supra, 57 Cal.4th at p. 562.)

To prevail on a section 1016.5 motion, a defendant must establish three elements:

"(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." (People v. Arriaga, supra, 58 Cal.4th at

pp. 957-958, citing People v. Martinez, supra, 57 Cal.4th at pp. 558-559.) We review an

order denying a section 1016.5 motion to vacate the judgment for abuse of discretion.

(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 191.) Under this standard,

this court decides " 'whether the trial court's findings of fact are supported by substantial

evidence, whether its rulings of law are correct, and whether its application of the law to

the facts was neither arbitrary nor capricious.' " (People v. Clancey (2013) 56 Cal.4th

562, 578.) It is Bongato's burden to show the court exercised its discretion in an

arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.)

B. Bongato was Properly Advised of the Immigration Consequences of His Guilty Plea

Bongato contends that his plea colloquy shows the trial court erred when it ruled

he had read and understood the contents of his plea form, because the record shows he

never expressly stated he had read and understood the form's contents. He points to the

following portion of the hearing:

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 "The court: Mr. Bongato, did you sign and initial the change of plea form?

"[Bongato]: Yes.

"The court: Did you also sign a white sheet that we call the Blakely waiver?

"[Bongato]: Yes, your honor.

"The court: Did you read and understand the questions?

"[Bongato]: Yes, your honor.

"The court: And are the answers true and correct, to the best of your knowledge?

"[Bongato]: Yes, your honor."

Bongato acknowledges that the advisement required by section 1016.5 need not be

made orally and that the court may rely on the defendant's validly executed waiver form

as a proper substitute for a personal admonishment. (People v. Ramirez (1999) 71

Cal.App.4th 519, 521-522; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.)

Rather, he argues the law required that he and his counsel be questioned concerning the

form to ensure he actually read and understood it. He cites People v. Quesada (1991)

230 Cal.App.3d 525 (superseded by statute on other grounds as stated in People v. Totari

(2003) 111 Cal.App.4th 1202, 1207, fn. 5) and Ramirez, 71 Cal.App.4th 519.

In People v. Ramirez, supra, 71 Cal.App.4th 519, the court held a trial court had

complied with section 1016.5 when the required advisements were contained in a written

plea form. When the court took the plea, it did not advise the defendant orally of the

plea's immigration consequences. But the defendant had signed a change of plea form

that "warned of all three possible [immigration] consequences in precise statutory

language." (Ramirez, at p. 523.) The appellate court rejected Ramirez's contention that

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section 1016.5 requires the court to orally advise a defendant of the immigration

consequences of his plea. (Ramirez, at pp. 521-522.) It explained "there is no language

in the statute requiring [oral] advisements by the court. . . . [T]he legislative purpose of

section 1016.5 is to ensure a defendant is advised of the immigration consequences of his

plea and given an opportunity to consider them. 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." (Ramirez, at p. 522.)

In People v. Quesada, supra, 230 Cal.App.3d 535, the court likewise pointed out

that a statutory admonition as to immigration consequences need not be given orally, and

stated, "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." (Quesada, at pp. 535-536.) Quesada, in turn, cited In re

Ibarra (1983) 34 Cal.3d 277, 285-286,6 in which the California Supreme Court

6 Ibarra was overruled in People v. Howard (1992) 1 Cal.4th 1132. (See People v.
Mosby (2004) 33 Cal.4th 353, 360-361.) In Howard, the court made clear that in order
to determine whether a defendant's plea is intelligent and voluntary, the "pertinent inquiry
. . . was whether 'the record affirmatively shows that [the admission] is voluntary and
intelligent under the totality of the circumstances' [citation], applying 'the test used to
determine the validity of guilty pleas under the federal Constitution.' " (People v. Mosby,
at p. 360, quoting Howard, 1 Cal.4th at pp. 1175.) In adopting this rule, the court
"rejected the rule that 'the absence of express admonitions and waivers requires reversal
regardless of prejudice.' " (People v. Mosby, at p. 361, quoting Howard, 1 Cal.4th at p.
1178.) "Now, if the transcript does not reveal complete advisements and waivers, the
reviewing court must examine the record of 'the entire proceeding' to assess whether the
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addressed constitutionally mandated advisements required under Boykin v. Alabama,

supra, 395 U.S. 238 and In re Tahl, supra, 1 Cal.3d 122. The court in Ibarra also stated:

"The underlying purpose of the Boykin and Tahl rules is to ensure that a defendant is

actually informed of his rights, and has had an opportunity to make an intelligent choice

to plead guilty. A sufficient waiver form can be a great aid to a defendant in outlining

those rights. The defense attorney, who is already subject to a duty to explain the

constitutional rights outlined in a proper waiver form to his client prior to the client's

entering a plea, may even find it desirable to refer to such a form. 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. If the questioning of defendant and his attorney leads the judge to believe

that the defendant does not fully comprehend his rights . . . the judge must conduct

further canvassing of the defendant to ensure a knowing and intelligent waiver of rights."

(In re Ibarra, at pp. 285-286.)

We do not read any of these cases as imposing on the trial court a talismanic duty

to specifically ask a defendant whether he or she understands or comprehends the rights

and consequences set forth on a written plea form, either individually or collectively, as

long as the totality of the circumstances lead the court to reach such a conclusion. In this

case the plea form listed all three immigration consequences of Bongato's plea, and it

defendant's admission of the prior conviction was intelligent and voluntary in light of the
totality of circumstances." (People v. Mosby, at p. 361.)

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included counsel's affirmation that he was satisfied Bongato understood his rights and

was waiving them. At the change of plea hearing, the court asked whether Bongato had

actually signed and initialed the form, and Bongato affirmatively told the court he had.

We do not interpret the court's question, "Did you read and understand the questions" as

ignoring the plea form, or as directed only to the Blakely waiver, as Bongato maintains.

But even if the court's inquiry was limited in that way, the record nevertheless shows that

Bongato did not require an interpreter, and he stated in English he was waiving his rights

freely and voluntarily and that he had discussed his case with his defense counsel. The

court confirmed with Bongato's counsel that he concurred in the change of plea. It then

made its finding that "you [Bongato] are in full possession of your faculties, that you

understand the nature of the proceedings and the consequence of your plea. You freely

and voluntarily waived your constitutional rights, and there is a factual basis for the

plea . . . ." Under these circumstances, the trial court had no obligation to go further and

question Bongato concerning the level and extent of his understanding of the written

form or the immigration consequences of his plea set out therein, before the plea could be

considered intelligent and voluntary in the constitutional sense. As long as there is

substantial compliance with the advisement requirements of section 1016.5, the court has

complied with its obligation. (See People v. Gutierrez, supra, 106 Cal.App.4th at p. 173

["[S]ubstantial, not literal, compliance with section 1016.5 is sufficient."].)

Because "a validly executed waiver form is a proper substitute for verbal

admonishment by the trial court" (People v. Ramirez, supra, 71 Cal.App.4th at p. 521;

see also Gutierrez, 106 Cal.App.4th at p. 175), we conclude the trial court was not

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required to provide any further oral advisement or engage in further questioning of

Bongato. The record thus establishes that Bongato received adequate advisement on the

immigration consequences of his plea, and he cannot demonstrate the trial court abused

its discretion in denying his motion.

II. Claim of Ineffective Assistance of Counsel

Bongato contends he suffered prejudicially ineffective assistance of counsel when

his appointed defense counsel agreed that the court could process Bongato's pro se

motion to vacate his conviction as a habeas petition. He maintains his counsel did not act

zealously and failed to assert viable arguments on his motion. As to prejudice, Bongato

argues "had counsel acted as a zealous advocate and detailed to the court the pertinent

facts and arguments: that the trial court had not advised appellant of the three warnings as

required by section 1016.5, that it had not questioned appellant about the warnings on the

plea form when it took the plea, that appellant had everything to loose [sic] if he entered

the plea and thus was subject to mandatory deportation away from his family, and that

appellant pursued the relief as soon as he learned of the negative immigration

consequences of the plea, and that appellant would not have entered the plea had he

known about this significant consequence, the court would have exercised its discretion

and granted the motion."

" 'To prevail on a claim of ineffective assistance of counsel, defendant "must

establish not only deficient performance, i.e., representation below an objective standard

of reasonableness, but also resultant prejudice." ' " (People v. Leonard (2014) 228

Cal.App.4th 465, 484, quoting People v. Hart (1999) 20 Cal.4th 546, 623-624.) The

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record must demonstrate " ' "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." ' " (People v. Hart, at p. 624.) Bongato has the burden to make an affirmative

showing of prejudice that is a " ' "demonstrable reality," not simply speculation.' "

(People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "[W]hen considering a claim of

ineffective assistance of counsel, 'a court need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.' " (People v. Fairbank, at p. 1241, quoting Strickland v.

Washington (1984) 466 U.S. 668, 697.)

Bongato cannot show prejudice stemming from his defense counsel's actions or

inactions. Even assuming Bongato is correct that his counsel incorrectly thought him

eligible for habeas relief (see People v. Villa (2009) 45 Cal.4th 1063 [a person in federal

immigration detention is ineligible for a writ of habeas corpus from a state court if his

state sentence and probation or parole have been completed]; People v. Hyung Joon Kim

(2009) 45 Cal.4th 1078, 1084; see also People v. Aguilar (2014) 227 Cal.App.4th 60, 64,

68), the trial court did not deny relief on that basis, but instead considered and ruled on

the merits of Bongato's motion. And, we have concluded on this record that Bongato

received adequate advisement of the immigration consequences of his plea. As a

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consequence, Bongato cannot establish prejudice stemming from his defense counsel's

representation.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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