PEOPLE v. ARRIAGA

Appellant’s Petition for Review

Cal.January 13, 2012

he eS199339 SO CRC No. (6586, C y JAN) 3 0. IN THE SUPREME COURT OF THESTATE OF CALIFORNIA’... PEOPLE OF THE ) Supreme Court STATE OF CALIFORNIA, ) * No. ) Plaintiff and Respondent, ) ) Court of Appeal V. ) No. B225443 ) VICTOR D. ARRIAGA, ) L.A. Sup. Ct. No. ) A537388 ) Defendant and Appellant. ) ) 2@ad PETITION FOR REVIEW Following decision of the Court of Appeal Second Appellate District; Division Two On Appeal from the Los Angeles Superior Court The Honorable Steven D. Blades, Judge JOANNA REHM State Bar No. 89868 12121 Wilshire Boulevard, Ste. 600 Los Angeles, CA 90025 Tel: 310-207-0059 Fax: 310-207-2780 ‘ Attorneyfor Appellant > Victor D. Arriaga By Appointment underthe California Appellate Project Independent Case System TABLE OF CONTENTS TABLE OF AUTHORITIES.00....eccccccssesseseeseeeeessesesscssesesssesssens PETITION FOR REVIEWoo...cccccccessesseeseessseesesessecssecaeesseeeseeaes ISSUE PRESENTED uo...ceeceesseseesenseescetessssesesesseseeeessneeseens Page li 1 1 Penal Code, section 1016.5 requires the court, before accepting a guilty plea, to advise the defendant of three specific immigration consequencesofhis plea. Thestatute also providesthat if the plea record does not show the court gave the required advisements, a presumptionarises that the advisements were not given. “Absent a record that the court provided the advisement required by this section, the defendant shall be presumednot to have received the required advisement.” (§1016.5, subd. (b).) Can the People overcomethe presumption that advisements were not given by a preponderanceofthe evidence? Or do the near certain consequences flowing from denial of the motion to vacate — removal, exclusion and/or de-naturalization — require the presumption be overcomeby a heightened standard of proof of “clear and convincing” evidence? STATEMENT OF THE CASE AND FACTS...cecseeeeeteeees REVIEW IS NECESSARY TO SETTLE AN IMPORTANT QUESTION OF LAW...eececcesenseseeseceeeetaeeseeseenseseeseaeeneceneeessstees CONCLUSIONoo.eccencecsecesseeeseeessecssecenessteeeseesteeeeesseeesseeeeeas WORD COUNT CERTIFICATEou.e ce eececesseeseeeneeeeeeseteceeteaeenaes PROOF OF SERVICE oo... eeccceseseceneeeneceeesseeseeneeenenaeeseesseeeeees 12 13 14 TABLE OF AUTHORITIES Cases Chaunt v. United States (1960) 364 U.S. 350 DRG/Beverly Hills Ltd v. Chopstix Dim Sum Café & Takeout (1994) 30 Cal.App.4th 54 Estate of Coffin (1937) 22 Cal.App.2d 469 In re Resendiz (2001) 25 Cal.4th 230 In re Smiley (1967) 66 Cal.2d 606 Lynchv. Lichtenhaler (1948) 85 Cal.App.2d 437 Padilla v. Kentucky (2010) 130 S.Ct. 1473 People v. Burnick (1975) 14 Cal.3d 306 People v. Cruz (1974) 12 Cal.3d 562 People v. Englebrecht (2001) 88 Cal.App.4th 1236 People v. Jimenez (1978) 21 Cal.3d 595 People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183 People v. Totari (2002) 28 Cal.4th 876 Schneidermanv. United States (1943) 320 U.S. 118 Weinerv. Fleischman (1991) 54 Cal.3d 476 Woodbyv. INS (1966) 385 U.S. 176 Statutes -ii- Page 12 8-9 5,7 Penal Code, section 1016.5 Passim Other Cody Harris, A Problem ofProof: How Routine Destruction of Court Records Routinely Destroys a Statutory Remedy 59 Stan. L. Rev. 1791 (2007) 10-11 -iii- PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF _ JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner, appellant and defendant Victor D. Arriagapetitions this Honorable Court for review following the published decision of the Court of Appeal, Second Appellate District, Division Two, which affirmed the denial of appellant’ s motion to vacate his guilty plea made pursuant to Penal Code, section 1016.5. (People v. Arriaga (2011) 201 Cal.App.4th 429.) The Court of Appeal opinion, filed December 1, 2011, is attached as Exhibit A. Appellant’s petition for rehearing was denied on January 3, 2012. ISSUE PRESENTED Penal Code, section 1016.5 requires the court, before accepting a guilty plea, to advise the defendantof three specific immigration consequencesofhis plea. Thestatute also providesthatif the plea record does not show the court gave the required advisements, a presumption arises that the advisements were not given. “Absent a record that the court provided the advisement required by this section, the defendantshall be presumednotto have received the required -|- advisement.” (§1016.5, subd. (b).) Can the People overcome the presumption that advisements were not given by a mere preponderance of the evidence? Ordo the nearcertain consequences flowing from denial of the motion to vacate — removal, exclusion and/or de- naturalization — require the presumption be overcome bya heightened standard of proof by “clear and convincing” evidence? STATEMENT OF THE CASE AND FACTS In 1986, appellant was charged jointly with Marcus Sandaval Aranda with one count of possessing a sawed-off shotgun, in violation of Penal Code, section 12020 (a). (CT 1.) He pled guilty prior to preliminary hearing and was granted probation. (CT 3-7.) At the time, he had been a lawful permanentalien for six years. (CT 23.) Two decadeslater, after raising a family, leading a productive life as a chef, and actively participating in his community, he applied for citizenship. (CT 23-24, 33; RT 14-16.) Butinstead of being grantedit, appellant was ordered to appear for deportation due to his old firearm conviction. (RT 15-16.) Appellant filed a motion to vacate his conviction undersection 1016.5, stating in his declaration that he was nevertold he could be separated from his -2- family and workif he pled guilty and, had he been told, he would have gone to trial because he wasnotguilty, or he would havepled to a non-deportable offense.’ (RT 15-16.) There was noreporter’s transcript of the proceedings, and the reporter’s notes had been destroyed pursuantto statute. (RT 80-81.) Thusthe only objective evidence to support appellant’s position was unavailable, through no fault of his own. The parties agreedthat the minute order of the proceedings wasalso insufficient to constitute a record that defendant was properly advised: it was a pre-printed form with the box checked next to “Defendantadvised ofpossible effects of plea on anyalien orcitizenship/probation or parole status.” (CT 4, 81 .) The parties agreed that the statutory presumption the advisements were not given arose. (RT 22, 25,34.) To rebut the presumption, the prosecutorcalled the former district attorney, Mr. Hofman, as a witness, whotestified to a “custom and habit” of always advising all defendants of the three immigration consequences whenhetook guilty pleas. (RT 2-10) Mr. Hofman had no 'Defendant’s firearm conviction subjects him to removal. (8 U.S.C. §1227, subd. (a) (2) (c).) Both currently andatthe time ofhis plea, Penal Code, section 12020 (a) included both firearm and non-firearm possession offenses within its prohibition. Thus appellant could have escaped deportation by negotiating his plea to a non-firearm possession conviction under that samestatute. -3- recollection of appellant, had no notesin his file, and never used a card to ensure all advisements were given and given correctly. (RT 3, 7, 11.) There was no evidence indicating that Mr. Hofman, the plea judgeortrial counsel even knew appellant was not a citizen. Though the clerk had modified the pre-printed minute order form extensively with handwritten changesto accurately reflect the proceedingsthat took place that day, the clerk did not mark the minute order in a way that would confirm what Mr. Hofmantestified to occurred. (CT 81.) Thetrial court found the presumption wasrebutted by a preponderance of the evidence and denied the motion. (CT 84-86.) The Court of Appeal affirmed, rejecting appellant’s claim that, given the importantinterests at stake, the statutory presumption could only be overcome by clear and convincing evidence. REVIEW IS NECESSARY TO SETTLE AN IMPORTANT QUESTION OF LAW (Cal. Rules of Court, Rule 5.800.) This Court has addressed a numberofinterpretive issues under Penal Code, Section 1016.5. (See People v. Totari (2002) 28 Cal.4th 876, 887 [denial of a section 1016.5 motion is appealable as a post-judgmentorder affecting the defendant’s substantial rights]; Jn re Resendez (2001) 25 Cal.4th 230 [ineffective -4- assistance claim based ontrial counsel’s failure to advise defendant of immigration consequencesnot cognizable in section 1016.5 proceeding]; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 [defendant must demonstrate prejudice from non-advisement].) This petition asks, what standard of proof is required to overcome the statutory presumption of non-advisementthat arises when there is no record showing the defendant wastold of the adverse immigration consequences he might suffer upon pleading guilty? Section 1016.5 defines when the presumption will be raised, but it does not state what standard of proof is required to rebutit. The choice of a standard of proof, wherea statuteis silent, is a judicial function to be resolved after evaluating the policy considerations applicable to the issue. (Woodbyv. Immigration Service (1966) 385 U.S. 176, 184 [17 L.Ed.2d 362, 368, 87 S.Ct. 483]; People v. Burnick (1975) 14 Cal.3d 306, 314.) It serves to allocate the risk of error betweenthe parties, and varies in proportion to the gravity of the consequencesof an erroneousresolution. (People v. Burnick, supra, at p. 310.) The Court of Appeal held that the People can overcomethestatutory presumption by a mere preponderance of the evidence- that quantum of evidence necessary to establish negligence in a civil tort action. In standard of proof parlance, this means the Court of Appeal placedthe risk of error in the factual -5- determination that advisements were given uponthe parties in roughly equal fashion. (Weinerv. Fleischman (1991) 54 Cal.3d 476, 488.) However, the stated purposeofthe statute is to protect one party — the non-citizen defendant — from entering into a plea without being informed of whatis to him probably the most important consequenceofall, his ability to remain in the United States. (Pen. Code, §1016.5, subd. (d).) Moreover, the Legislature has already manifested its intentthat the interest of the defendant in ensuring his guilty plea was fully informed outweighsthe State’s interest in the finality of pleas, since the absence of a record showing the defendant was fully advised gives rise to a presumption against the State, regardless of why the record doesnot exist, and no matter how long after the plea the motion to vacate is brought. The Court of Appeal rejected appellant’s claim that an elevated standard of proof was required, finding the interest of the State in the finality ofjudgments was equalto, if not outweighed, the defendant’s interests. It reasoned that due process requires an elevated standard of proof only when the governmentdeprives an individual of a liberty or property interest, and “the outcomeofthis proceeding would not and did not result in the deprivation of a liberty or property interest.” (Slip Opinion, p.8.) This turns a blind eye to what prompts a defendantto file a motion to vacate -6- in the first place. It is not because there is some theoretical possibility that his conviction might cause removal in the unknownfuture. It is because, as was the case with Mr. Arriaga, Mr. Totari, Mr. Resendiz, and Mr. Zamudio, and countless others, removal proceedings have already begun and denial of the motion is therefore relatively certain to result in banishment andthelossofall that is important to the defendant. That Mr. Arriaga’s situation is likely to recur as vigorous enforcement of immigration laws against aliens with criminal convictions continues, no matter howstale the conviction, is reflected in ICE’s ownstatistics. According to its web site, the fiscal year ending July 2011 saw 216,698 non-citizens removed, with 55% of them having criminal convictions, “the largest numberof criminal aliens removed in agencyhistory.” (www.ice.gov/removal-statistics.) Almost 6,000 were from Los Angeles County, alone. (www.ice.gov/news/release/1009/100902losangeles.htm.) The U.S. Supreme Court has already determined that the higher standard of proof applies as a matter of due process where immigration consequencesare at issue because the consequencesto the defendantare drastic — deportation, expulsion andloss of citizenship. (See, e.g., Woodby v. INS, supra, 385 U.S.at p. 286 (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization): Schneiderman v. United States, 320 U.S. 118, 125, 159 -7- (denaturalization).) In Padilla v. Kentucky (2010) 130 S.Ct. 1473, the Court re- affirmed that, while removal proceedingsare civil in nature, deportationis “unique” becauseit is “intimately related to the criminal process,”is a “particularly severe penalty,” and is “most difficult” to “divorce the penalty from the conviction in the deportation context.” (Id. at p. 1482.) The clear and convincing standard of proofis also no strangerin the guilty plea context. Penal Code section 1018 requires a defendant whoseeksto challenge a pleavalid onits face on the ground it was not entered into knowingly and voluntarily to prove that by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) This Court should nothesitate to impose a corresponding standard of proof on the People whenit challenges a plea that, by operation of section 1016.5, is presumptively invalid. Eveninthe civil context, a clear and convincing standard of proof applies across a range of issues where constitutional rights are not involved, but due to generalpublic policy considerations that involve important interests. (See, e.g., DRG/Beverly Hills Ltd v. Chopstix Dim Sum Café & TakeoutIII, Ltd. (1994) 30 Cal.App.4th 54, 60 [waiver of known right under a commercial contract must be shownbyclear and convincing evidence]; Estate ofCoffin (1937) 22 Cal.App.2d 469 |waiverof right to a family allowance]; Lynch v. Lichtenhaler (1948) 85 -8- Cal.App.2d 437, 441 [oral agreement to make a will]; People v. Englebrecht (2001) 88 Cal.App.4th 1236 [issuance of injunction in gang case].) Theinterest of a criminal defendantasreflected in section 1016.5 deserves noless protection. The unique problem presented by the silent record case led this Court to apply a clear and convincing standard of proof in People v. Jiminez (1978) 21 Cal.3d 595. This Court was faced with establishing the standard of proof for determining the admissibility of a confession where doubtexisted astoits voluntariness. In determining whether a confession was voluntary,it stated that the trial court “will often have to decide which one oftwo self-serving accounts to believe, as the testimony normally presented . . . consists of conflicting versions by the defendant and law enforcementofficers as to what occurred during the interrogation of the defendant by those officers which led to the defendant’s confession.” (Id at p. 606) Because this presented a factual inquiry, “the degree of certainty as to which trial court must be convincedthat a confessionis voluntary will often be of controlling significance” and that under a preponderanceofthe evidencetest, the trial court “will more often resolve factual conflicts in the evidence in favor of admitting a challenged confession, and this will correspondingly increase the risk that some involuntary confessionswill thereby be admitted.” (Ibid.) This Court concluded that this weaker standard of -9- proof wasnotsufficient, since the consequencesresulting from an erroneous determination of the voluntariness issue “are especially severe.” (Ibid.) Once the court admits the confession findingit voluntary, the jury does not redetermine that issue. (Evid. Code, §405.) Further, a confession is ordinarily given overwhelming weightby the jury. (Id. at p. 607.) While Jimenez was subsequently abrogated by the “truth-in-evidence” provisions of Proposition 8 (People v. Markham (1989) 49 Cal.3d 63, 66), its discussion regarding the undesirability of a mere preponderance of the evidence standard to resolvea factual dispute whichpits the testimony of the defendant, which will probably be viewedas self-serving, against that of a government representative applies with equal force to the factual determination in a section 1016.5 hearing. As one commentatorhas observed,if the testimony of the plea judge(orhere, the district attorney) under a “preponderance of the evidence” standard ofproofis sufficient to overcomethe statutory presumption the defendant has not been advised dueto a destroyedorinsufficient record, the remedy envisioned by section 1016.5 is “illusory” becauseit is “unlikely that a defendant will ever prevail in a credibility contest that pits his word against thatof a trial Judge” even thoughthetrial judge’s recollection should be viewed with skepticism,for he has a “strong reputational and professional incentiveto testify -10- that he delivered the proper warnings as required by law.” (Cody Harris, A Problem ofProof: How Routine Destruction ofCourt Records Routinely Destroys A Statutory Remedy, 59 Stan. L. Rev. 1791, 1812 (2007).) These concernsare increased when, as here, the recollection testimonyis by the formerdistrict attorney, who additionally has an interest in having a plea he negotiated and secured upheld. “The endresult is thatit is difficult to imagine a scenario in which a defendant could ever prevail on a section 1016.5 motion without recourse to a plea hearing transcript, rendering the remedy provided underthe statute illusory for a significant number of defendants.” (Ibid.) In short, a preponderanceofthe evidence standard is too low to rebut the presumptionthat arises under section 1016.5 from a silent or inadequate record, because the consequencesto a defendant of an erroneousfactual determination that advisements were given is too severe — the defendant will be removed — when weighed against the State’s interest in the finality of pleas. A clear and convincing standard protects the very strong interests the individual has in the determination. Society has a considerable interestin the finality of plea convictions, but it has no interest in upholding uninformed and involuntary please. Moreover, requiring proof by clear and convincing evidence also serves society’s interest in having its judicial system comply with rules designed to serve -l1- the judicial system and therebysociety as well. For, over 20 years before this plea wasentered, this Court madeit crystal clear that when statutory guaranteesare at issue, “it does not appear to be too great a burden on thetrial judges or clerks under their direction to require minute or docket entries specifically listing the rights of which the defendantis actually advised.” (Jn re Smiley (1967) 66 Cal.2d 606, 617.) CONCLUSION For the foregoing reasons, appellant requests review be granted. Respectfully submitted, Date: January 10, 2012 JOANNA REHM Attorney for appellant Victor D. Arriaga -12- CERTIFICATE OF WORD COUNT I, Joanna Rehm,certify that the Petition for Review is prepared in Times New Romanfont, 14-point, and contains 2534 words, exclusive of tables. In makingthis certification, I am relying on the word count of the computer program usedto prepare the brief. I declare under penalty of perjury that the foregoing is true and correct. Executed at Los Angeles, California on January 10, 2012. JOANNA REHM CERTIFIED FOR PUBLICATION IN THE COURTOF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, . B225443 Plaintiff and Respondent, _ (Los Angeles County | . Super. Ct. No. A537388) V. a ado COURT — VICTOR D. ARRIAGA, a eT-em Defendant and Appellant. DEC 01 2011 YOSEPH A LAN Clerk - Deputy Clerk APPEAL from an order of the Superior Court of Los Angeles County. Steven D. Blades, Judge. Affirmed. | Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, ChiefAssistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Victoria B. Wilson and Steven: D. Matthews, Deputy Attorneys General for Plaintiff and Respondent. ~ Defendantand appellant Victor Diaz Arriaga (defendant) appeals from an order denying his motion to vacate a judgment entered in 1986 upon.a guilty plea. He contends that the trial court erred in finding that he was adequatelyadvised of the potential immigration consequencesofhis guilty plea. Respondent contends that defendant was required to obtain a certificate ofprobable cause to bring this appeal, and as he did not do so, the appeal should be dismissed. We concludethat no certificate of probable cause was required, and upon reaching the merits of the appeal, we reject defendant’s contentions. Finding that the trial court did not abuseitsdiscretion in denying the motion, we affirmthe order. | | | a ‘BACKGROUND . On:January1, 2010, defendant filed a motion tovacate his 1986 conviction in Los5 Angeles Superior Court case No. A537388,in which he had pledguilty to a violation of Penal Codesection 12020, subdivision (a)(8).! In support of the motion, defendant submitted his: declarationdescribing the circumstancesofhis convictionas well as facts regarding himself and his family.2 Defendant does “notrecall being properly advised by the court of the immigration consequences that could result from this conviction when [he] entered [his] plea.” He did not knowthat the plea could result in a permanent separation from his family and work. The preprinted minute orderofthe 1986 plea hearing states: “Defendant advised ofpossible effects of plea on any alien or citizenship/probation status.” Noreporter’s transcript was available, and the reporter’s notes had been destroyed. The prosecution presented the testimony of Los Angeles County Deputy District Attorney Harold W. Hofman,Jr. (Hofman), whowasthe calendar deputy assigned to taking pleas in July 1986 in the department where defendant entered his plea. 1 All furtherstatutory references are to the Penal Code, unless otherwise indicated. 2 Defendantis a legal resident alien who haslived in the United States for 39 years. His two children, nine grandchildren,and other family members are United States citizens. Defendant is now disabled and lives with his son and daughter-in-law, providing day care for their children. Hofman did not remember defendant, but testified that when taking pleas,it was his habit to inform the defendants of their-rights and consequencesoftheirpleas. Hofman, rather than the judge sitting in that department, would take the waivers himself 99.9 percent ofthe time. Hetestified that in addition to explaining the charges and the defendant’s constitutionalrights, he “always” advised defendants of the immigration consequences of their pleas. He rememberedthe language heused, andrecitedit: “There are a number of consequences to your plea. One of those consequences is you may be deported from the country, that is, required to leave the country, after you are convicted of this offense. You may be denied readmission to the UnitedStates after you ‘enter your plea. Andifyou apply for citizenship, that application maybe denied.” | _ Defendanttestified that he did not recall being made awarethat his plea could result in deportation, exclusion, or denial of naturalization, but that if he had been, he would have rejected the plea. Defendant did notremember whether anyone explained the charges to him,and denied that anyone explained his constitutional rights. He | subsequently applied for naturalization, but the application was denied due to his conviction, and he receiveda letter telling him to report to immigration court in April 2011 for deportation proceedings. | _ Thetrial court denied defendant’s motion upon finding that the required advisements were given when defendantentered his plea, and that the language used by Hofmansubstantially complied with the language required by section 1016.5. Defendant filed a timely notice of appeal from the order denying his motion, but did not obtain a certificate of probable cause. | DISCUSSION I. Requirements of section 1016.5 Prior to acceptance ofa plea of guilty or nolo contendere, the trial court must give the defendantthe following advisementon the record: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequencesof deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (§ 1016.5, subd. (a).) A 3 defendant who was not so advised may moveto vacate the judgment and his plea. (§ 1016.5, subd. (b).) | | “To prevail on a motion to vacate undersection 1016.5, a defendant must establish - that (1) he or she wasnotproperly advised of the immigration consequencesas provided : by the statute; (2) there exists, at the time of the motion, more than a remote possibility thatthe conviction will have one or more ofthe specified adverse immigration . consequences;and (3) he or she was prejudiced by the nonadvisement. [Citations.]” (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari); see also Peoplev. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200 (Zamudio).) | . Citing the recent decision in People v. Placencia (2011) 194 Cal.App.4th489 II. Nocertificate of probable cause required (Placencia), respondent contendsthat the appeal must be dismissed because defendant failed to obtain a certificate of probable cause, as required by section 1237.5. Section 1237.5 provides that a defendant may not appeal from ajudgmentof conviction upon a plea of guilty or nolo contendere unless the trial court has executed and filed .a certificate of probable cause for the appeal. The court in Placencia held as a matter offirst impression that section 1237.5 applies to an appeal based on the denial of a section 1016.5 motion to vacate. (Placencia, supra, 194 Cal.App.4that pp. 494-495; see Cal. Rules of Court, rule 8.304(b).)> The court’s reasoning began with the established exception to section 1237.5, applied to appeals based upon grounds which aroseafter entry of the plea and do not challenge the validity the plea. (Placencia,at p. 493, citing People v. Johnson (2009) 47 Cal.4th 668, 678 (Johnson); People v. Mendez (1999) 19 Cal.4th 1084, 1096.) The court held that the exception did not apply to a section 1016.5 3 Prior to Placencia, appellate courts have heard appeals from orders denying section 1016.5 motions without commenton the requirements of section 1237.5 or the issue of appealability. (E.g., People v. Gutierrez (2003) 106 Cal.App.4th 169, 172 [no certificate] (Gutierrez); People v. Suon (1999) 76 Cal.App.4th 1, 4 [certificate obtained]; People v. Ramirez (1999) 71 Cal.App.4th 519, 521 [no certificate] (Ramirez); People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312 [no certificate], disapproved on other grounds in Zamudio, supra, 23 CalAth at p. 200,fn. 8.) 4 motion, because such a motion “follows a claimed failure by thetrial court to advise the defendantofthe immigration consequences of a plea of guilty or nolo contendere which necessarily precedesthe entry of the plea and affects the validity of the plea. | [Citations.]” (Placencia, supra, at pp. 493-494.) The Placencia court concluded that because the exception did not apply, a certificate of probable cause was required. (/d.at pp. 494-495.) As none wasfiled in that case, the court dismissed the appeal. (/d. atp. 495.) Defendant contendsthat the Placencia decision begs the question whether an exception to section 1237.5 was requiredin thefirst instance. We agree. Asthe Placencia court recognized, the California Supreme Court held in Totarithat the denial _ of a section 1016:5 motion is an order made after judgment which affects the substantial rights of the defendant, and thus appealable under section 1237, subdivision (b).4 | (Totari, supra, 28 Cal.4th at p. 887.) Under subdivision (a) of section 1237, appeals taken from a final judgmentof conviction are made expressly subject to section 1237.5. There is no such condition in subdivision (b) of section 1237, for appeal from orders entered after the final judgment of conviction whichaffect the substantial rights of the defendant. Nevertheless, the Placencia holding assumesthat the denial of any motion to - . withdraw a guilty plea is subject to the certificate requirementof section 1237.5, if the motion was based upontheinvalidity of the plea. The court relied in part upon the California Supreme Court’s following language in Johnson: “A defendant mustobtain a’ certificate of probable causein order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occursafter the guilty plea. [Citation.]” (Johnson, supra, 47 Cal.4th at p. 679.) In support ofits holding in Johnson, the California Supreme Court cited its earlier decision in People vy. Ribero (1971) 4 Cal.3d 55 (Ribero), wherethe court had held that “the determinative factor[is] 4 Wenote that the defendant in Totari had obtained a certificate of probable cause. (See Totari, supra, 28 Cal.4th at p. 880.) However, nothing in Totari suggests compliance with section 1237.5 was a prerequisite to the appeal. 5 the substance ofthe error being challenged, not the time at which the hearing was conducted. ... [The defendant] cannot avoid the requirements of section 1237.5 by labelling the denial of the motionas an errorin a proceeding subsequentto the plea. To hold otherwise would beto invite such motions as a matterof:course, and would be wholly contrary to the purpose ofsection 1237.5.” (Ribero, supra, at pp. 63-64,fn. omitted; Johnson, supra, at p. 679.) . The conclusion drawn by the Placencia court from the holdings in Johnson and Ribero was that the defendant’s labeling ofthe appeal as one froman order after judgmentcould not be allowed to circumvent the requirements of section 1237.5 and thus undermineits purpose ofpreventing frivolous appeals following guilty and nolo contendere pleas. (Placencia, supra, 194 Cal.App.4th at pp. 493-494.) It was not the defendant, however, wholabeled the appeal fromthe denialofa section 1016.5 motionas an order after judgment, appealable under subdivision (b) of section 1237. It was our Supreme Court. (Totari, supra, 28 Cal.4th at pp. 886-887.) In doing so, the court unambiguously held that an order denying a section 1016.5 motion to vacate was an “appealable order under section 1237, subdivision (b).” (Totari, supra, at p. 887.) As we have heretofore noted, section1237, subdivision (a), is expressly subject to section 1237.5, whereas subdivision (b) is not. . ‘In Totari, the court recognized that “section 1237, subdivision (b),literally permits | an appeal from any postjudgment orderthat affects the ‘substantial rights’ of the defendant,” subject only to the limitation that “ordinarily, no appeallies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment.” (Totari, supra, 28 Cal.4th at p. 882,citing People v. Thomas (1959) 52 Cal.2d 521, 527.) The court held, however, that the limitation does not apply to an appeal from an order denying a statutory motion to vacate, such as a section 1016.5 motion. (Totari, at pp. 886-887.) It follows from Totari’s reasoning that section 1237, subdivision (b)literally applies to the denial of a section 1016.5 motion, thus permitting an appeal that is not limited by section 1237.5. We concludethat nocertificate of probable cause was required to perfect this appeal. 6 ILI. Standardof review _ We review the trial court’s ruling for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 191.) To establish an abuseof discretion, defendant must showthat it was exercised in an arbitrary, capricious, or patently absurd mannerthat resulted ina manifest ~ miscarriage ofjustice. (People v. Limon (2009).179 Cal.App.4th 1514, 1518.) We 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 weaccept the court’s credibility determinations. (People v. Quesada (1991) 230 ~ Cal_App.3d 525, 533 (Quesada).) IV. Preponderanceof the evidence | Because there was no reporter’s transcript and the minutes of the 1986 plea hearing did not set forth the actual advisement given regarding the immigration | consequences, defendant was “presumed notto have received the required advisement.” (§ 1016.5, subd. (b).) The presumption wasrebuttable, and the prosecution bore the burden to prove by a preponderance of the evidencethat the required advisements were given. (People v. Dubon (2001) 90 Cal.App.4th 944, 953-954 (Dubon).) Defendant contends that a preponderanceof the evidence is the wrong standard of proof, and urges this court to reject the contrary holding in Dubon byarticulating a clear and convincing - standard. | Defendant acknowledges that Evidence Code section 115 provides: “Except as otherwise provided by law,the burden ofproof requires proof by a preponderanceofthe evidence.” However, he points out that where the Legislature has not established a standard ofproof, the issue becomesajudicial function to be exercised by considering all aspects of the law. (People v. Burnick (1975) 14 Cal.3d 306, 314.) No standard of proof is specified in section 1016.5, and defendantsuggeststhat the heightened burden of proof — - applied in deportation and denaturalization proceedings would be appropriate here, ~ although a ruling on the motion doesnot directly result in either consequence. (See . Woodby v. INS (1966) 385 U.S. 276, 285 [deportation]; Schneiderman v. UnitedStates (1943)320 U.S. 118, 125 [denaturalization].) 7 Weneednotreach defendant’s contention regarding the standard of proof, because defense counsel expressly agreed, when askedto do so bythetrial court, that the standard » of proof to be applied to the prosecution’s burden was a preponderanceofthe evidence. (See People v. Davis (2005) 36 Cal.4th 510, 539 [invited error].) | Moreover, we agree with Dubonthat the appropriate standard of proofis a preponderance ofthe evidence. Due process requires a higher standard of proof whenthe government deprives an individual of a liberty or property interest. (Santosky v. Kramer (1982) 455 U.S. 745, 754; People v. Jason K. (2010) 188 Cal.App.4th 1545, 1556; see People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1255-1256.) However, the determination of the standard should be based upon a consideration not onlyof the individual’s interests, but also of the countervailing governmentalinterest. (Santosky, supra, at p. 754; Jason K., supra, at p. 1556.) The standard of proof should reflect the relative importance ofthe ultimate decision. (Addington v. Texas (1979) 441 U.S. 418, 423-425.) The outcomeofthis proceeding would not and did notresult in the deprivation of a liberty or property interest. On the other hand,the finality ofjudgments is an importantpublic interest. (SeeIn re Crow (1971) 4 Cal.3d 613, 622-623.) This is - particularly so with regard to judgments entered upon guilty pleas. (See Custis v. United States (1994) 511 U.S. 485, 497.) Thus, balancing the relative importanceofthe ultimate decision upon a section 1016.5 motion, we concludethatthe court correctly applied a preponderance standard. V. Substantial evidence supports finding that advisements were given Defendant also contends that even underthe lower, preponderance of the evidence standard of proof, substantial evidence did not support a finding that the three required immigration advisements were given. Absenta reporter’s transcript, a minute order can sometimes amountto an adequate recordofthe required advisement. (Dubon, supra, 90 Cal.App.4th at p. 954.) In Dubon, there wasno reporter’s transcript, and the only evidence ofthe advisement was a minute order, nearly identical to the minute order in this case, stating that the defenda nt - “was advised ofthe possible effects of his plea on any ‘alien/citizenship/probation/parole 8 status.’” (Ibid.) The Dubon court held that while such a minute order provides some evidencethat the required advisements were given,it is insufficient, without more, to establish a complete advisementofthe three possible consequences: deportation, exclusion, and denial ofnaturalization. (/d. at p. 955.) Additional evidence in this case provided substantial evidence to support the ruling. Hofmantestified that he always advised defendants that a guilty plea could result in deportation, denial of readmission to the United States, and denial of naturalization. Evidence of habit or custom “is admissible to prove conducton a specified occasionin conformity with the habit or custom.” (Evid. Code, § 1105.) | Defendant argues that Hofman’s testimony was insufficient because it was contradicted by inferences that may-be drawn from the absenceofclerk’s notes explaining the preprinted language of the minute order. Defendant Also argues that Hofman’s testimony wasinsufficient because it was based only uponhis memory, uncorroboratedby notes ofthe plea hearing, a checklist, or a preprinted plea form. Any inference from the terse language of the minute order that the advisement was inadequate was dispelled by Hofman’stestimony where he gave a detailed recitation of. his oft-given advisementof immigration consequences. Further, the authorities cited by defendant do not hold orsuggest that such testimony of custom and habit must be corroborated with a written plea form containing the required advisement or other evidence. (See Gutierrez, supra, 106 Cal.App.4th at pp. 171-173; Ramirez, supra, 7\ Cal.App.4th at pp. 522-523; Quesada, supra, 230 Cal.App.3d at pp. 533-535.) Either verbal or written advisements may be given. (Ramirez, at pp. 521-522.) VI. Spanish interpreter Defendantcontendsthat the advisement was inadequate because evidence suggested that he mayhave needed a Spanishinterpreter. Defendant points out that the record does not reflect that he was afforded an interpreter whenheenteredhisplea in 1986, although one wasappointed in later court proceedings. Healso points to evidence that he studied English in 2008 and 2009. Defendant concludes that the advisement was not shown to have been given in a language he understood, and was thus inadequate. 9 Defendant’s sole authority for his contention is articleI, section 14 of the California Constitution: “A person unable to understand English whois charged with a crime has a right to an interpreter throughout the proceedings.” Hecites no authority supporting his suggestion that this issue may be raised for the first time on appeal or that itwas the prosecution’s burden to prove defendant’s English proficiency. In any event, defendant did nottestify that he did not understand what he wastold; he testified that he could not recall what he was told. Moreover, it was unlikely that: defendant understood no English at the time he enteredhis plea in 1986,as he hadlived in this country for more than 15 years. The record does not indicate any detail concerning the English classes taken in 2008 and 2009. It is unknown whether they were courses in basic comprehension rather than grammar or writing for the English speaker.. Further, simply because an interpreter was appointed in other proceedings did not create a presumption that defendant did not understand English. (See In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453.) We conclude that defendant’s contention has nomerit. VII. Advisements were properlygiven by the prosecutor | Defendantnotes that section 1016.5 requires “the court” to administer the advisement. He contends that “court” is synonymouswith “judge” and excludes anyone to whom the judge might delegate the duty. He concludes that by permitting the prosecutor to advise defendant, the court that took his plea violated not only the statute, but also his right to due process. | | As defendant acknowledges, the court heldiin Quesada that “court” refers to the tribunal and thesection 1016.5 advisements “may be given through any ofthe numerous individuals acting on behalfofthat tribunal, including the judge, counsel, the court . reporter, or the clerk. So long asthe legislative purpose is advanced by having some person acting on behalf ofthe tribunal actually advise defendant of the immigration consequencesofhis plea and that advice is reflected ‘on the record,” the actual advise ris _ immaterial. Indeed, it is common practice for the prosecutor or defense counsel, rather than the judge, to advise the defendantofhis rights and the consequences of a guilty pl ea, including the immigration consequences, andto elicit the necessary waivers of those - 10 rights. [Citations.]” (Quesada, supra, 230 Cal.App.3dat pp. 535-536; see also Ramirez, supra, 71 Cal-App.4th at pp. 522-523.) | Defendant contends that the plain meaning of “court” is “judge” not “tribunal,” and asks that we reject Quesada’s reasoning because it was dictum. Healso suggests that~ when someoneother than the judge gives the advisements, the judge necessarily -abdicates his responsibility to accept aplea, vacate the plea, allow defendantthe opportunity to discuss the consequencesofhis plea, and determine whetherthe plea was voluntary. Defendant argues that such a procedure can create an atmosphereofsubtle -eoercion. . Wedo not agree with defendant’s characterization of the proceedings, or his restrictive definition of “court.” Hadthe Legislature intended so narrow definition,it would have used the word“judge.” The Legislature enacted section 1016.5 to promote fairness by ensuring the defendant’s awarenessofthe possibility of deportation and exclusionfrom admission to the United States. (Zamudio, supra, 23 Cal.4th at pp. 193- 194 & fn. 7.) We do notagree with defendantthat amore inclusive reading of “court” defeats this purpose. (Quesada, supra, 230 Cal.App.3d at pp. 535-536; Ramirez, supra, 71 Cal.App.4th at pp. 522-523.) We agree with Quesada’s reasoning, and adoptit here. VHI. No abuseof discretion - In sum,thetrial court applied the correct standard of proof, and substantial - evidence supportedthe prosecution’s showingthat the statutorily required advisements were properly given in this case. Defendant did not establish that he needed a Spanish interpreter, or that section 1016.5 required advisement from a judgerather than from the prosecutor. Weconcludethat the trial court did not abuse its discretion in denying the motion. 11 DISPOSITION Thetrial court’s order denying the motion to vacate defendant’s 1986 co nviction is _ affirmed. CERTIFIED FOR PUBLICATION CHAVEZ I concur: »P.J.. BOREN 12 People v. Arriaga, B225443 ASHMANN-GERST, J.—Concurring and Dissenting Although I agree that the trial court did not abuse its discretion when it denied defendant’s motion to vacate judgmentandset aside his guilty plea under Penal Code. section 1016.5,1 I would not reachtheissue. Rather, I would follow People v. Placencia (2011) 194 Cal.App.4th 489,494 [holding that before a defendant may appeal the denial ofa section 1016.5 motion, he mustfirst obtain the certificate ofprobable cause required by section 1237.5]. Because defendantdid not obtaina certificate ofprobable cause,I would.dismiss his appeal. Prior to section 1237.5,“‘the mere filing of a notice of appeal requiredpreparation of a record and,in many cases, appointmentof counsel; only after expenditure of those resources would an appellate court determine whetherthe appeal raised nonfrivolous issues that fell within the narrow bounds of cognizability.”” (People v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson).) The statute wasdesignedto “remedythe unnecessary expenditure ofjudicial resources by preventing the prosecution of frivolous appeals challenging convictions on a plea of guilty.” [Citation.]” (bid.) Applying section 1237.5 does not create “‘undue hardship on defendants with potentially meritorious appeals. The showing required to obtain a certificate is not stringent. Rather, thetest applied bythetrial court is simply “whetherthe appealis clearly frivolous and vexatious or whetherit involves an honest difference of opinion.” [Citation.] Moreover, a defendant whofiles a sworn statement of appealable grounds as required by section 1237.5, but fails to persuadethetrial court to issue a probable causecertificate, has the remedy offiling a timely petition for a writ of mandate [seeking review of the refusal to _ issue the certificate], [Citations.] Thus, if he complies with section 1237.5, a defendant has ample opportunity to perfect his appeal.’ [Citation.] Moreover,ifall else fails, the most fundamental kinds of attack remain available on habeas corpus.” (People v. 1 All furtherstatutory referencesare to the Penal Code unless otherwise indicated. Buttram (2003) 30 Cal.4th 773, 793.) To implement section 1237.5, the Judicial Council promulgated California Rules of Court, rule 8.304(b). (Johnson, su pra, 47 Cal.4th at p. 677, fn. 3.) The rule provides that to appeal after a no contestor guilty plea, the “defendantmustfilein . _. superiorcourt—with the notice of appeal . . .—the statement ‘required by [section 1237.5] foriissuance ofa certificate ofprobable ca use.” (Cal. Rules - ofCourt, tule 8.304(b)(1).) But “(t]he defendant need not comply with (i) if the notice of appeal states that the appealiis based on: [{] (A) The denial of a mot ion to suppress evidence under[section 1538.5]; or [{] (B) Groundsthat aroseafter entry |of the plea and do notaffect the plea’s validity.” (Cal.Rules of Court, rule 8.3 04(b)(4).) Thereiis no basis for implying an exception into section 1237.5 f or an appeal following the denial of a section 1016.5 motion. An immigration advisementis no more important than any other advisement necessaryfor a defendantto un derstand the consequences ofentering a no contestor guilty plea. And the need for a trial court to perform a gatekeeping function exists any time a defendant secks t o challenge the validity ofa plea on appeal. The exception to section 1237.5 propo sed by the majority conflicts with legislative intent and public policy, andit also conflic ts with California Rules of Court, rule 8.304(b). Regardless, the majority opines that an exceptionis dictated by People v. Totari (2002) 28 Cal.Ath 876 (Totari). But T otari did not discuss the applicability of section 1237.5 to an appeal from the denial of a section 1016.5 motion. A case is not authority for a proposition not considered. (P eople v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.) ASHMANN-GERST PROOF OF SERVICE STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) I am the attorney for appellant Victor Arriaga. My business address is 12121 Wilshire Boulevard, Suite 600, Los Angeles, CA 90025. On January 10, 2012 I served the within PETITION FOR REVIEWonthe interested parties by depositing a true copy thereof, enclosed in a sealed envelope addressed as follows: Clerk, Court of Appeal, Second Appellate District, 300 S. Spring Street, Los Angeles, CA 90013 Office of the State Attorney General, 300 S. Spring Street, Ste 1700, Los Angeles, CA 90013 Clerk to the Hon. Steven Blades, Los Angeles Superior Court, 111 N. Hill Street, Los Angeles, CA 90012 California Appellate Project, 520 S. Grand Avenue, 4" Floor, Los Angeles, CA 90071-2608 Victor D. Arriaga [address omitted] X_ BY MAIL Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. Executed on January 10, 2012. I declare under penalty of perjury underthe lawsof the State of California the foregoing is true and correct. 5 JOANNA REHM