Opinion
D071532
08-25-2017
THE PEOPLE, Plaintiff and Respondent, v. ABEL ANGEL GARCIA, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14678) APPEAL from an order of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
In1991 Abel Angel Garcia pleaded guilty to one count of conspiracy to possess marijuana for sale as a misdemeanor (Health & Saf. Code, § 11359; Pen. Code, § 182). He was granted probation.
All further statutory references are to the Penal Code unless otherwise specified. --------
In September 2015, Garcia filed the first of three motions to vacate his guilty plea pursuant to section 1016.5. Following two hearings, the trial court denied the motions.
The 24-year delay between his guilty plea and his motion under section 1016.5, resulted in the loss of records and transcripts. The reporter's notes were unavailable and the prosecutor's files had been purged. Garcia contends, and the People agree that the absence of a record showing he was advised of possible immigration consequences creates a rebuttable presumption he was not advised. Garcia contends on appeal he had made an adequate showing of prejudice, the extraordinary delay is not an impediment and the People did not rebut the presumption.
We will conclude the lengthy delay, under the circumstances of this case, does not work in Garcia's favor. Further, the court was not required to accept his self-serving assertion that he would not have pled guilty, but would have sought "another alternative." Garcia's intervening deportation in 2005, his unlawful return to this country since then, his refusal to attend the court proceeding for cross-examination and his failure to provide the court with requested information about his latest immigration problems, justified the court's exercise of discretion to deny the motion to vacate the guilty plea.
STATEMENT OF FACTS
The only record of the facts of the underlying offense is the original probation officer's report. The report indicates that Garcia participated in a conspiracy to buy 20 pounds of marijuana. At times Garcia dealt directly with undercover narcotics officers in person and by telephone. At one point Garcia offered to sell the undercover officer a semiautomatic rifle.
DISCUSSION
A. Background
As we have stated above, in 1991, Garcia was facing several felony counts arising from a planned drug deal involving undercover officers. Garcia was allowed to plead guilty to conspiracy as a misdemeanor. In his declaration Garcia stated he pled guilty because he "did not want to face further jail time, since I had a family to raise and support."
In 1997 his work permit expired. By 2002, U.S. immigration authorities were in contact with Garcia, indicating his permanent resident status might be denied and that he needed to submit information. By 2003, immigration officials notified Garcia his request was denied. Garcia was deported in 2005.
The trial court sought information about Garcia's current immigration issues. Counsel advised that Garcia would not make himself available for cross-examination. He was in Nevada and did not want to travel for fear of being picked up by immigration authorities. Although Garcia had retained counsel in two deportation problems, his current counsel was not "sure" if other counsel advised Garcia that his 1991 plea presented immigration problems. Counsel did not ask prior counsel for information, because it might embarrass those attorneys. Counsel indicated Garcia might have been deported once before 2005.
As a consequence of the delay in bringing the motion, the self-serving nature of Garcia's explanations of the plea, his refusal to provide information about his current immigration problems and his refusal to answer questions about his declarations, the trial court found Garcia had not shown a basis for relief.
B. Legal Principles
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.
"(c) With respect to pleas accepted prior to January 1, 1978, it is not the intent of the Legislature that a court's failure to provide the
advisement required by subdivision (a) of Section 1016.5 should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid. Nothing in this section, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.
"(d) The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant's counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction. It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court."
In People v. Totari (2002) 28 Cal.4th 878, the court discussed the standard a defendant must meet in order to prevail on a motion to vacate under section 1016.5. The court said: "To prevail on a motion to vacate under section 1016.5, a defendant must establish that (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 immigration consequences; and (3) he or she was prejudiced by the nonadvisement." (Totari, supra, at p. 884.)
When we review the trial court's decision on a motion to vacate we apply the abuse of discretion standard. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Limon (2009) 179 Cal.App.4th 1514, 1518.)
Where, as in this case, the record has been destroyed due to the passage of many years, we are required to presume that the defendant was not advised of immigration consequences as mandated by statute. (§ 1016.5, subd. (b); People v. Arriaga (2014) 58 Cal.4th 950, 956.) The presumption created by the statue is rebuttable, subject to proof.
Where a defendant has delayed for a considerable period of time the burden is on the defendant to demonstrate due diligence in pursuing his or her remedies. "The reason for requiring due diligence is obvious. Substantial prejudice to the People may result if the case must proceed to trial after a long delay." (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.)
In order to justify relief under section 1016.5, a defendant must establish prejudice. That is, the defendant must show the person would not have pleaded guilty had there been proper advisement of immigration consequences. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).) In the determination of what impact the failure to advise may have had, the trial court may, where appropriate, reject the defendant's assertion he or she would not have pled guilty had the person been properly advised. (People v. Martinez (2013) 57 Cal.4th 555, 565.)
C. Analysis
Garcia's declaration said he pled guilty to get out of jail, although he did not "recall" if he had been advised of immigration consequences. It states he would have pursued "another alternative," whatever that might mean. We think the trial court could clearly question whether an advisement of immigration consequences would have been likely to produce a different result. (Zamudio, supra, 23 Cal.4th at p. 210.)
First, Garcia's statement he would have pursued another alternative, is vague and problematic. The only information here is he was charged with several felonies. He had dealt directly with undercover officers in person and by phone. He was offered a plea to a misdemeanor with credit for time served. It was important to him to get out of jail as soon as possible. Thus, the trial court could wonder: What alternative?
Further, there was no justification offered for the delay. Garcia had been involved with immigration authorities since 1997. From 2002 through 2005 he was on notice of likely deportation and had counsel. Garcia was deported in 2005, and may have been deported before that. It is apparent from the record that Garcia has re-entered this country since his deportation. Hence, his refusal to testify and his stated fear that immigration authorities might find him. While there is no statutory time limit on motions to vacate under this section, a delay of 24 years requires credible explanation. Unjustified delay, however, should not be rewarded by the unjustified elimination of an otherwise valid conviction.
Garcia's counsel deliberately did not ask immigration counsel if they had discussed the 1991 plea with Garcia. Counsel did not inform the court, as requested, of the nature of Garcia's current immigration circumstances.
We think a trial court, in its discretion could easily find Garcia's declaration unpersuasive. Garcia certainly has not shown any relevance of his 1991 misdemeanor conviction to his current problems, since he is obviously in the country after being deported, thus facing immigration issues unrelated to the then 25-year-old misdemeanor plea.
In any event, the court could easily disregard the self-serving assertions of prejudice in light of the record before us. We find no abuse of discretion in denying the motion to vacate Garcia's guilty plea.
DISPOSITION
The order denying Garcia's motion under section 1016.5 to vacate his guilty plea is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.