Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 98NF3545 Thomas James Borris, Judge.
Robert Sheahen and Kelly Sheahen for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W Schons, Assistant Attorney General, Steve Oetting, Robin Derman and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
In 1998, defendant Samuel Ortiz Barrera pleaded guilty to two felony offenses and judgment was entered. Almost 10 years later, he filed a motion seeking to vacate the judgment on the grounds (1) the trial court failed to advise him of the immigration consequences of his plea before accepting his plea, as required by Penal Code section 1016.5, and (2) the public defenders who represented defendant provided ineffective assistance of counsel by failing to investigate the charged offenses, explain the case and the immigration consequences of a guilty plea to him, and negotiate a more favorable plea agreement. (All further statutory references are to the Penal Code, unless otherwise specified.) The trial court denied defendant’s motion.
We affirm. The record shows defendant was advised of the immigration consequences of pleading guilty to the charged offenses as required by section 1016.5. Defendant signed a guilty plea form in which he declared under penalty of perjury that he had read, understood, and personally initialed certain items listed above his signature, and that he had discussed those items with his attorney. One of those items stated he understood that conviction for the charged offenses might have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization. His attorney also signed the guilty plea form, attesting that he had explained to defendant each of his rights listed on the form. The record contains the trial court’s minute order which reflected that defendant had been advised of the immigration consequences of entering a guilty plea.
Defendant also failed to show he was provided ineffective assistance of counsel. Defendant’s motion was solely supported by his current counsel’s declaration opining that the public defenders who represented defendant in 1998 could have done a better job. Because the record is devoid of evidence showing the public defenders’ representation fell below the standard of care, the trial court properly denied defendant’s motion on that ground too.
BACKGROUND
In a felony complaint filed in December 1998, defendant was charged with one count of willfully and unlawfully taking property from another person in violation of section 487, subdivision (c), and one count of possessing methamphetamine in violation of Health and Safety Code section 11377, subdivision (a).
Defendant pleaded guilty to both counts as charged. The record includes a form entitled “Guilty Plea in the Superior Court” (guilty plea form), which bears the signatures of defendant and his attorney, public defender Terry Schneier. The guilty plea form also contains defendant’s initials inside a box next to the following statement: “I understand that if I am not a citizen of the United States the conviction for the offense 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.” In the paragraph immediately above defendant’s signature, the guilty plea form states: “I declare under penalty of perjury that I have read, understood, and personally initialed each item above and discussed them with my attorney, and everything on this form is true and correct”; defendant’s initials appear in a box next to this paragraph.
In addition, the guilty plea form contains the following provision immediately above Schneier’s signature: “DEFENDANT’S ATTORNEY ONLY—I am attorney of record and I have explained each of the above rights to the defendant, and having explored the facts with him/her and studied his/her possible defenses to the charge(s), I concur in his/her decision to waive the above rights and to enter a plea of guilty. I further stipulate this document may be received by the court as evidence of defendant’s intelligent waiver of these rights and that it shall be filed by the clerk as a permanent record of that waiver. No promises of a particular sentence or sentence recommendation have be[en] made by myself or to my knowledge by the prosecuting attorney or the court which have not been fully disclosed in this form.”
The trial court’s minute order, dated December 16, 1998, shows defendant pleaded guilty to the charged offenses and had been advised of the consequences of his plea “if not a citizen.” Defendant was represented in court at the time he pleaded guilty by “Vu Trinh for T. Schneier PD.” The minute order also reflects the presence of a Spanish language interpreter at the hearing. The trial court suspended the imposition of sentence and placed defendant on probation for three years, conditioned in part on defendant serving 270 days in jail.
Almost 10 years later, in November 2008, defendant filed a motion to vacate the judgment of conviction on the grounds (1) the trial court failed to advise him of the immigration consequences of his guilty plea as required by section 1016.5 and (2) he received ineffective assistance of counsel because his attorneys failed to investigate the charged offenses, explain the case and the immigration consequences of pleading guilty to him, and negotiate a more favorable plea agreement. The motion was solely supported by the declaration of defendant’s current counsel, Robert Sheahen. The record does not contain a transcript of the December 16, 1998 hearing itself. In his motion, defendant asserted he had been living in Florida when he was recently taken into federal custody and was “under a federal order to be deported to Mexico.”
In his moving papers, defendant also stated: “Insofar as might be applicable, defendant asks this Honorable Court to treat the within petition as a petition for writ of habeas corpus (defendant is presently in federal INS [Immigration and Naturalization Service] custody) or as a petition for writ of error coram nobis.” (Italics added.) On appeal, defendant solely argues the trial court erred by denying his motion to vacate the judgment and does not argue the court erred by failing to issue a writ of habeas corpus or writ of error coram nobis.
The trial court denied defendant’s motion to vacate the judgment of conviction. Defendant appealed.
DISCUSSION
I.
The Requirements of Section 1016.5 Were Satisfied.
Defendant contends the 1998 judgment of conviction must be reversed because the trial court failed to advise him of the immigration consequences that might result from pleading guilty to the charged offenses, as required by section 1016.5. As we will explain, section 1016.5 was satisfied in this case.
Section 1016.5 provides: “(a) Prior 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. [¶] (b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. 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. 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.”
Citing In re Ibarra (1983) 34 Cal.3d 277, the appellate court in People v. Ramirez (1999) 71 Cal.App.4th 519, 521 held the advisement required by section 1016.5 need not be made orally. The court explained: “Our state Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court. [Citation.] Particularly, in Ibarra, the court addressed constitutionally mandated advisements required under Boykin v. Alabama (1969) 395 U.S. 238... and In re Tahl (1969) 1 Cal.3d 122.... It also stated in Ibarra: ‘A sufficient waiver form can be a great aid to a defendant in outlining [a defendant’s] 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.’” (People v. Ramirez, supra, at pp. 521 522; see People v. Gutierrez (2003) 106 Cal.App.4th 169, 175 [trial court may rely upon a defendant’s validly executed waiver form utilized by the court in accepting a plea “‘as a proper substitute for a personal admonishment’”].)
The appellate court in People v. Ramirez, supra, 71 Cal.App.4th at page 522, further stated, “there is no language in the statute requiring verbal advisements by the court,” explaining, “the 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.”
Here, defendant and his attorney signed the guilty plea form, and defendant initialed the provision that stated: “I understand that if I am not a citizen of the United Stated the conviction for the offense 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.” This provision “contains all components of an adequate warning of the consequences for a noncitizen of pleading guilty to a felony offense,” and defendant does not contend otherwise. (People v. Ramirez, supra, 71 Cal.App.4th at p. 521; cf. People v. Castro Vasquez (2007) 148 Cal.App.4th 1240, 1244 1245 [minute order showing a defendant was advised of immigration consequences without more is insufficient to show compliance with section 1016.5].) Defendant also initialed the statement that he signed the guilty plea form under penalty of perjury, declaring that he had read, discussed with his attorney, understood, and personally initialed each item. Defendant’s signature follows this statement. The record does not contain any evidence that defendant did not read or understand the guilty plea form before signing it. Defendant’s counsel signed the guilty plea form, asserting he had explained each of the rights listed in the form to defendant.
In addition, the trial court’s minute order reflects that defendant had been advised of the consequences of pleading guilty if he was not a citizen. We therefore conclude the record shows the requirements of section 1016.5 were satisfied and the trial court did not err by denying defendant’s motion to vacate the judgment of conviction.
Citing the declaration of Sheahen, defendant’s current counsel, which was filed in support of the motion to vacate the judgment, defendant argues, “[a]ccording to the unrefuted declaration concerning the public defender’s memory of proceedings, there was no reasonable likelihood that [defendant] was ever advised of anything relating to his immigration status. Again, of course, a minute order cannot show statutory compliance.” Sheahen’s declaration asserted in part, “I called Vu Trinh to find out what happened in this case. Mr. Trinh was one of the two public defenders who had represented [defendant] back in 1998. He now is in private practice in Orange County. [¶] Mr. Trinh did not have a clear memory of the case. When asked about counseling [defendant] on INS [Immigration and Naturalization Service] consequences, Mr. Trinh said: ‘Most likely, no one advised him of anything.’ Mr. Trinh was the lawyer who stood in at the time of the actual plea.” Sheahen further stated: “I tend to credit Mr. Trinh’s recollection with respect to counsel that ‘no one advised him of anything.’”
Defendant’s motion was not supported by the testimony or declaration of anyone who was present when defendant signed and initialed the guilty plea form or attended the guilty plea hearing. Not only is the record devoid of any declaration by either Schneier or Trinh, there is no declaration by defendant explaining the nature of any advisement he received (or did not receive) by his attorneys or by the trial court. Sheahen’s declaration is entirely based on inadmissible hearsay as to what defendant and Trinh purportedly told him regarding those proceedings. Even if we were to consider Sheahen’s summary of what Trinh had told him, Trinh merely stated it was “[m]ost likely” defendant had not been advised of anything. But the guilty plea form was signed by Schneier, not by Trinh. It therefore asserts Schneier, not Trinh, had explained defendant’s rights (including the immigration consequences provision) to him. Other than Sheahen’s declaration’s reference to Trinh’s general and unexplained speculation, there is nothing in the record showing that Schneier failed to do what he represented to the court he did and had advised defendant accordingly. We find no error.
II.
The Trial Court Did Not Err by Refusing to Vacate the Judgment of Conviction on the Ground Defendant Received Ineffective Assistance of Counsel.
Defendant also contends the trial court erred by failing to grant his motion to vacate the judgment of conviction on the ground he received ineffective assistance of counsel before he pleaded guilty to the charged offenses.
In In re Resendiz (2001) 25 Cal.4th 230, 239, the California Supreme Court stated: “Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] ‘It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.’ [Citations.] [¶] To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.]” (Fn. omitted.) The Supreme Court further stated: “[W]hether or not the court faithfully delivers section 1016.5’s mandated advisements, ‘[t]he defendant can be expected to rely on counsel’s independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial.’” (Id. at p. 240.)
In his opening brief, defendant contends the public defenders who represented him in 1998 failed to investigate the charged offenses, explain the case and possible immigration consequences of pleading guilty, and negotiate a more favorable plea agreement. But defendant’s contentions are not supported by the record. Neither defendant, nor anyone else who was involved in the 1998 case or otherwise had personal knowledge of the case, testified at the hearing on defendant’s motion or submitted a declaration.
As discussed ante, the motion to vacate the judgment of conviction was solely supported by Sheahen’s declaration in which Sheahen (who claims no personal knowledge of the 1998 proceedings) opines defendant did not receive effective assistance of counsel because (1) “[g]iven the time involved, it was impossible for the public defenders to have done any significant work on [defendant]’s case”; (2) “most lawyers in most similar cases would have done better for the accused” by filing a section 17, subdivision (b)(5) motion; (3) the charged offenses were relatively not serious and “would hardly justify a quick plea to two felonies and a 270 day jail sentence”; (4) Trinh did not remember defendant’s case but told Sheahen, “[m]ost likely, no one advised [defendant] of anything” as to the immigration consequences of pleading guilty; and (5) defendant told Sheahen that he had met with his public defenders “very briefly” in 1998, “neither one ever gave him accurate advice about the immigration consequences of his plea,” and he did not speak English and “had no idea what was going on.”
The asserted factual bases for Sheahen’s opinion are not supported by the record. Although Sheahen was of the opinion the public defenders could have negotiated a better plea agreement and failed to give “accurate advice” about the immigration consequences of defendant’s plea, the record is devoid of any evidence showing the public defenders mishandled defendant’s case or the nature of the advice they had provided him.
Again, what the record does contain is Schneier’s signature on the guilty plea form directly below the statement that as defendant’s attorney, he had explained each of the rights set forth in the guilty plea form to defendant, explored the facts with him, studied defendant’s possible defenses, and concurred in his decision to waive his rights and enter a plea of guilty.
Because defendant failed to show that his counsel’s representation fell below the standard of care, the trial court did not err by denying his motion to vacate the judgment of conviction on that ground.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.MOORE, J.
In People v. Villa (2009) 45 Cal.4th 1063, 1066, 1069, the California Supreme Court held that a person in the custody of federal immigration authorities is ineligible for relief by way of a writ of habeas corpus from a state court if his or her state sentence, probation, and parole have been completed. Defendant does not contend his sentence, probation, or parole from the 1998 charged offenses is incomplete or that he otherwise remains in state custody. Also, in People v. Kim (2009) 45 Cal.4th 1078, 1103 1104, the Supreme Court rejected relief pursuant to a petition for writ of error coram nobis based on the defendant’s arguments he did not understand the immigration consequences of an earlier guilty plea and that his counsel was ineffective by failing to investigate and negotiate a different plea.