P. v. Bongato CA4/1

Filed 3/26/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. Appeal dismissed.

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)). Because Bongato did not obtain a certificate of

probable cause (§ 1237.5), we dismiss the appeal.

1 All statutory references are to the Penal Code.
 FACTUAL AND PROCEDURAL BACKGROUND

Bongato is a citizen of the Philippines who has 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 had "head butted" her, causing

an injury to her forehead.

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

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." (Bold omitted.)

Bongato's attorney averred: "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 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

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into the plea and waived those rights freely and voluntarily, and 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 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. The petition was denied, and this court dismissed Bongato's

appeal from that order as from a nonappealable order.2

In May 2011, Bongato moved 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 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, warranting summary reversal. It further

found on the merits Bongato had not shown entitlement to relief under section 1016.5.

Finally the court ruled it lacked jurisdiction to consider his claim of ineffective assistance

of counsel.

2 We have granted Bongato's unopposed request for judicial notice of the appellate
record in Bongato's prior appeal, People v. Bongato, D056929.
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 In August 2011, Bongato filed an amended notice of appeal along with a request

for a certificate of probable cause. The court denied the request on grounds Bongato had

not shown reasonable constitutional, jurisdictional, or other grounds for appeal relating to

the legality of the proceedings.

DISCUSSION

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

its discretion by denying his motion to vacate the conviction. 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

when he agreed to an erroneous characterization of the posture of his case, asked to be

relieved as counsel, and allowed the matter to proceed as a regular habeas.

The People respond that the appeal must be dismissed because Bongato did not

obtain a certificate of probable cause. We agree.

Section 1237.5 provides: "No appeal shall be taken by the defendant from a

judgment of conviction upon a plea of guilty or nolo contendere, . . . except where both

of the following are met: [¶] (a) The defendant has filed with the trial court a written

statement, executed under oath or penalty of perjury showing reasonable constitutional,

jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial

court has executed and filed a certificate of probable cause for such appeal with the clerk

of the court."

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 It is well established that "[a] defendant must obtain a certificate of probable cause

in order to appeal from the denial of a motion to withdraw a guilty plea, even though such

a motion involves a proceeding that occurs after the guilty plea." (People v. Johnson

(2009) 47 Cal.4th 668, 679; People v. Placencia (2011) 194 Cal.App.4th 489, 494

(Placencia).) Without a certificate of probable cause defendant is not entitled to review

of the validity of his plea. (People v. Johnson, at p. 675; Placencia, at p. 494; see People

v. Rodriquez (2012) 208 Cal.App.4th 998, 1000.) Thus, a certificate must be obtained to

secure review of the failure to advise of the penal consequences of a defendant's guilty

plea including the failure to advise of immigration consequences, or mistaken advisement

regarding potential sentencing. (Placencia, supra, 194 Cal.App.4th at p. 494; People v.

Pearson (1981) 120 Cal.App.3d 782, 791.) Where a certificate of probable cause is

required but has not been obtained, we "may not proceed to the merits of the appeal, but

must order dismissal thereof." (People v. Mendez (1999) 19 Cal.4th 1084, 1096.)

In Placencia, the court relied upon the California Supreme Court's strict

application of section 1237.5 in People v. Johnson, supra, 47 Cal.4th 668, in which the

court explained that an attack on an integral part of the plea agreement, even if it purports

to challenge only the sentence imposed, was in substance a challenge to the validity of

the plea. (Johnson, at pp. 678-679.)3 Johnson reviewed the primary purpose of section

3 In People v. Johnson, supra, 47 Cal.4th 668, the defendant entered a no contest
plea and later moved to change his plea, claiming he was denied effective assistance of
counsel before his sentencing. (Id. at p. 673.) After hearing the defendant's and his
attorney's testimony, the trial court denied the motion. (Id. at p. 674.) Defendant filed a
notice of appeal challenging the validity of the plea and requested a certificate of
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1237.5—to prevent the taking of frivolous appeals based on the asserted invalidity of

guilty pleas—and explained that the determinative factor was " 'the substance of the error

being challenged, not the time at which the hearing was conducted.' " (Id. at p. 681.)

According to the court, a "contrary holding would 'invite such motions [to withdraw the

plea] as a matter of course, and would be wholly contrary to the purpose of section

1237.5.' " (Johnson, at p. 679.) Thus, the court held a certificate was required for

defendant's claim on appeal that he was denied effective assistance of counsel prior to

sentencing in connection with his motion to withdraw his guilty plea. (Id. at pp. 679-

680.)

Like the Johnson court, the Court of Appeal in Placencia looked to the substance

of the appeal: "An appeal from a denial of a section 1016.5 motion is technically from an

'order made after judgment' (§ 1237, subd. (b)) and not 'from a judgment of conviction

probable cause. (Id. at pp. 674-675.) The basis of his request was that he had not waived
his fundamental rights knowingly, intelligently, or voluntarily, and thus the court abused
its discretion by denying his motion to withdraw his plea. (Id. at pp. 675.) The trial court
denied defendant's request, and defendant then filed an amended notice of appeal,
changing the language to read that the " 'appeal is based on the sentence and other matters
occurring after the plea and does not challenge the validity of the plea.' " (Ibid., italics
added.) He did not request a new certificate of probable cause. The appellate court
dismissed his appeal for failure to obtain a certificate of probable cause under section
1237.5. (Ibid.) The Supreme Court affirmed, looking to the Legislature's rationale
behind the certificate requirement and observing that an exception to that requirement
applied where a defendant " 'is not attempting to challenge the validity of his plea of
guilty but is asserting only that errors occurred in the subsequent adversary hearings
conducted by the trial court for the purpose of determining the degree of the crime and
the penalty to be imposed.' " (Id. at p. 677.) The court then qualified that exception,
stating, "Even when a defendant purports to challenge only the sentence imposed, a
certificate of probable cause is required if the challenge goes to an aspect of the sentence
to which the defendant agreed as an integral part of a plea agreement." (Id. at p. 678.)
Such a challenge " 'is, in substance, a challenge to the validity of the plea . . . .' " (Id. at
pp. 678-679.)
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upon a plea' of guilty or nolo contendere (§ 1237.5). But a section 1016.5 motion follows

a claimed failure by the trial court to advise the defendant of the immigration

consequences of a plea of guilty or nolo contendere which necessarily precedes the entry

of the plea and affects the validity of the plea." (Placencia, 194 Cal.App.4th at p. 494.)

Bongato urges us to hold that Placencia was wrongly decided, that it "improperly

conflates the applicable statutory directives" and uses flawed logic. Specifically,

Bongato argues Placencia ignores the plain language of section 1237, subdivision (a),

which requires a certificate of probable cause only when a final judgment is "upon a plea

of guilty or nolo contendere," and there is no such corresponding right under subdivision

(b) of section 1237, under which his appeal falls. He argues, "If the Legislature had

intended that the certificate of probable cause be required for all appeals which attack the

validity of the plea, no matter whether they flow from a judgment of conviction or an

order after judgment affecting the defendant's substantial rights, it could have so

provided."

We are not persuaded. The Johnson court conducted a thorough review of the

legislative intent behind the certificate requirement, and its reasoning demonstrates the

correctness of Placencia's approach. An appeal from the denial of a motion to vacate a

guilty plea is as much of a challenge to the plea as is an appeal from the denial of a

motion to withdraw a guilty plea, which requires a certificate of probable cause. "If

[Bongato] could circumvent [the certificate requirement] by placing a different label on

his . . . motion, the purpose of section 1237.5 would be undermined. [Citation.]

Similarly, the existence of an express statutory basis for a motion to challenge a trial

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court's failure to give an immigration advisement does not warrant creation of a new

exception to the certificate of probable cause requirement. . . . [S]ection 1237.5 does not

impede a defendant's right to appeal any nonfrivolous issue if he or she seeks and obtains

a certificate of probable cause. [It] concerns the procedure for perfecting an appeal from

a judgment based on a plea of guilty or nolo contendere; it does not limit the grounds

upon which an appeal may be taken." (Placencia, supra, 194 Cal.App.4th at p. 494.)4 If

the trial court wrongfully refused to issue a certificate, Bongato's relief was to file a

petition for writ of mandate. (Id. at p. 495.)

4 The California Supreme Court will resolve this issue eventually in the context here
presented: a claim that a defendant was given inadequate advisement of the potential
immigration consequences of his plea. (See People v. Arriaga (2011) 201 Cal.App.4th
429 [133 Cal.Rptr.3d 807], review granted Feb. 22, 2012, S199399.) It denied review in
Placencia, and presently has before it Arriaga, which took a contrary view from
Placencia.

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 DISPOSITION

The appeal is dismissed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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