Filed 8/12/16 P. v. Covarrubias 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E062670
v. (Super.Ct.No. RIF131223)
ORFAELL COVARRUBIAS, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Rafael A. Arreola, Judge.
(Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art.
VI, § 6, of the Cal. Const.). Affirmed.
Michael A. Hestrin, District Attorney, Matt Reilly and Alan D. Tate, Deputy
District Attorneys for Plaintiff and Appellant.
Alfonso Morales, under appointment by the Court of Appeal, for Defendant and
Respondent.
On July 21, 2006, a felony complaint charged defendant and respondent Orfaell
Covarrubias with transportation and possession of methamphetamine under Health and
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Safety Code sections 11379 (count 1) and 11378 (count 2). On the same day, defendant
pled guilty to transportation of methamphetamine under Health and Safety Code section
11379, subdivision (a) (count 1), and was sentenced accordingly.
On October 7, 2014, defendant filed a motion to vacate his conviction under Penal
Code section 1016.5 (section 1016.5), under ineffective assistance of counsel. At the
hearing on the motion to vacate on December 18, 2014, the court granted defendant’s
motion and vacated his guilty plea. The People appeal. For the reasons set forth below,
we affirm the trial court’s ruling.
FACTUAL AND PROCEDURAL HISTORY
At the hearing wherein defendant pled guilty, defendant admitted that he
transported methamphetamine, a violation of Health and Safety Code section 11379,
subdivision (a). The parties stipulated that there was a factual basis for the plea.
On the plea form, defendant placed his initials all along the left side of the plea
form, under the headings of “Advisement of Rights,” “Consequences of Plea,” and
“Defendant’s Statement.” One of the paragraphs under “Consequences of Plea” was
paragraph No. 3, which stated as follows:
“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.”
On the next page of the plea agreement, defendant signed and dated below the
statement: “I have read and understand this entire document. I waive and give up all of
the rights that I have initialed. I accept this Plea Agreement.”
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Moreover, defense counsel signed her name under the following statement:
“I am the attorney for the defendant. I am satisfied that (1) the defendant
understands his/her constitutional rights and understands that a guilty plea would be a
waiver of these rights; (2) the defendant has had an adequate opportunity to discuss
his/her case with me, including any defenses he/she may have to the charges; and (3) the
defendant understands the consequences of his/her guilty plea. I join in the decision of
the defendant to enter a guilty plea.”
In open court, the trial court asked defendant, “Alright, [defendant], I am holding
up a yellow form here, sir. Did you go over everything on this with your attorney?”
Defendant responded “Yes.” The court asked him: “Did you understand everything on
this sheet?” Defendant stated, “Yes.” The court then went on to confirm with defendant
and his attorney that defendant understood his constitutional rights and that he was
waiving them by entering the guilty plea. These were the court’s sole inquiries regarding
the plea form. The court did not provide oral advisements regarding the immigration
consequences of defendant’s plea. Immigration consequences were not discussed at all
during the hearing.1
Pursuant to the terms of the plea agreement, defendant was sentenced to 179 days
in jail and three years formal probation.
On October 7, 2014, current defense counsel filed a motion to vacate defendant’s
conviction under ineffective assistance of counsel, section 1016.5, and as a matter of
1As a result of defendant’s guilty plea, he was deported and is deemed
inadmissible under federal immigration laws.
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equity. In the motion, defendant claimed that he was not aware of the adverse
immigration consequences of his guilty plea. The People opposed the motion.
On December 18, 2014, the trial court granted the motion finding the court failed
to comply with the requirements of section 1016.5.2 The People appeal.
DISCUSSION
The People contend that the trial court erred in granting defendant’s motion to
vacate his guilty plea and reinstating the criminal proceedings.
Under section 1016.5, a defendant can obtain relief if he or she “demonstrate[s]
that (1) the court taking the plea failed to advise the defendant of the immigration
consequences as provided by section 1016.5, (2) as a consequence of conviction, the
defendant actually faces one or more of the statutorily specified immigration
consequences, and (3) the defendant was prejudiced by the court’s failure to provide
complete advisements.” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287, citing
People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 (Zamudio); People
v. Totari (2002) 28 Cal.4th 876, 884.)
Section 1016.5, subdivision (a), requires the following admonishment be given to
any defendant entering a guilty plea: “If you are not a citizen, you are hereby advised
that conviction of the offense for which you have been charged may have the
2 The trial court agreed with the People “that if that’s the only issue that was
ineffective assistance of counsel by itself, I may not have authority to set it aside. But in
terms of whether or not the defendant understood and whether or not the Court advised
the defendant of the consequences of deportation or the immigration consequences, than
[sic] that’s a separate issue.”
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consequences of deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.”
The court is not necessarily required to provide the above warning orally.
However, it must appear on the record, and it must be given by the court. (People v.
Gutierrez (2003) 106 Cal.App.4th 169, 175; People v. Ramirez (1999) 71 Cal.App.4th
519, 521.)
In this case, the advisement provided above was clearly printed on the plea form
defendant initialed and signed. In the plea form, under “Consequences of Plea,” it 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 initialed next to a
line immediately next to this statement. At the bottom of the plea form, on the next page,
defendant also signed and dated below the statement: “I have read and understand this
entire document. I waive and give up all of the rights that I have initialed. I accept this
Plea Agreement.”
Despite the appearance of the written statement on defendant’s plea form, the trial
court credited defendant’s assertion that his attorney did not go over the plea form with
him. Moreover, the trial court, after reviewing the reporter’s transcript, noted that
defendant was never orally advised about the immigration consequences of his plea. A
trial court’s ruling on a section 1016.5 motion will withstand appellate review unless the
record shows a clear abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192.)
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The crux of the matter is whether the trial court, under the appropriate standard of
review, clearly abused its discretion in making its determination (Zamudio, supra, 23
Cal.4th at p. 192), i.e., whether it can be said that the trial court’s findings were
“arbitrary, capricious, or patently absurd,” in such a way that they “result[ed] in a
manifest miscarriage of justice.” (People v. Limon (2009) 179 Cal.App.4th 1514, 1518,
citing People v. Shaw (1998) 64 Cal.App.4th 492, 496.) No such abuse of discretion has
been shown on this record.
In this case, the trial court held a hearing on defendant’s motion to vacate. At the
hearing, the trial court acknowledged that the plea form included the warning language
about deportation. The court however, noted, “The question is whether or not anyone
said anything else about that, whether the judge—I didn’t see the judge saying anything.
The judge did say you’ll be on probation. You can get four years, but I don’t think the
judge ever mentioned you can be deported if you’re not a citizen.” Later in the
proceedings, the court also noted that when defendant pled guilty, the court “didn’t say,
did you initial that, did you read it, do you understand it and, secondly, do [you]
understand, which I would do, is that you can be deported or you will be deported
because it’s an aggravated felony. So that wasn’t stated.” The court went on to say, “In
this case, I didn’t see the judge asking. I always do that, by the way, whether it’s a
misdemeanor or felony. ‘Did you read and understand the questions? Are the answers
true and correct to the best of your knowledge? Do you have any questions about it?’ [¶]
So in this case, the judge didn’t ask, there’s a form, do you understand it? He didn’t say,
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did you sign and initial? Did you read and understand? Those two questions are not in
the record. That’s why I’m having some concerns.”
After listening to further argument from both the prosecutor and defense counsel,
the court noted, “So looking at the overall picture in this case, that would be a reason I
would grant this. But what I want to make sure [defendant] understands he may end up
with three or four years in state prison, instead of the probation that he got, if he gets
convicted and he may end up with the same consequences. I’m not relieving and
dismissing the case, I’m simply setting it aside because in my view, looking at the whole
picture in this case, including his declaration under penalty of perjury, he didn’t really
understand the consequences of immigration, what would happen with immigration. He
definitely would be deported and that a—the plea he took, not only [may] but definitely
would get him deported.”
In properly applying the standard of review, an appellate court must uphold the
trial court’s reasonable inferences and resolution of factual conflicts if supported by
substantial evidence, viewed in the light most favorable to the ruling, and must also
accept the court’s credibility determinations. (People v. Quesada (1991) 230 Cal.App.3d
525, 533.) The trial court’s inferences and conclusions here are supported by substantial
evidence.
Another trier of fact might have heard the same evidence and reached the opposite
conclusion. However, we are bound to view the evidence in the light most favorable to
the trial court’s conclusion.
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Nothing in the language of section 1016.5, or in case law, explicitly requires that
the record of an immigration consequences admonishment be expressly noted in the
court’s minutes. However, even if no express record on the minutes is necessarily
required, the absence of any mention in the minutes does provide some evidentiary
support for a conclusion that no such admonition was in fact given. Although a court
“may rely upon a defendant’s validly executed waiver form as a proper substitute for a
personal admonishment,” (People v. Panizzon (1996) 13 Cal.4th 68, 83), and probably
will in most cases, it is not necessarily required to do so.
In sum, while this is not the decision we would have made on this cold record, it is
not our decision to make, and we cannot substitute our discretion for that of the trial
court. The appellant has failed to demonstrate that the trial court abused its discretion in
making its ruling.
DISPOSITION
For the reasons stated, the trial court’s ruling is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
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