PEOPLE v. ARRIAGA

Respondent’s Petition for Review

Cal.January 12, 2012

S199239 _ : Iu the Supreme Caurt of the State of Caliinenia THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. S. Plaintiff and Respondent, ee , JAN BQ oe v. VICTORD. ARRIAGA, thnk ae Defendant and Appellant. etl Second Appellate District, Division Two, Case No. B225443 Los Angeles CountySuperior Court, Case No. A537388 The Honorable Steven D. Blades, Judge PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General LAWRENCEM.DANIELS Supervising Deputy Attorney General STEVEN D. MATTHEWS Supervising Deputy Attorney General State Bar No. 137375 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2367 Fax: (213) 897-6496 | Email: DocketingLAAWT@doj.ca.goy Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented .........ccccccesseeseereeessavseeneeeeesaeeeeeeeeserseeeesereeeeeessueeeauesueeesneeses ] Statementof the Case..c.c.ccccccccssesssessessesssvssssstsessesscsscssssssasevsvsevsesnesnesneetseaess 1 Reasons for Granting the Petition ...........cccccccsssssssssessersssssesssesevesseseeserecens 3 The court should grant review to resolve the conflict over whether a defendant must securea certificate of probable causein order to appeal the denial of a motion to withdraw plea for failure to adequately advise of the immigration CONSEQUENCES.........ccceceseseseeeees 3 CONCLUSION .....seceeeeeeeeseeesenecsessesseseessssecsacsacaceaessenecsessusseesesssaeenrens peteeeteeees 7 TABLE OF AUTHORITIES Page CASES In re Chavez (2003) 30 Cal4th 643 oo. cccccsssescssescsssesscsssesenevscsssessecstsvscasnsesenseavas 6 People v, Buttram- . (2003) 30 Cal.4th 773 oo. ceccccsssessssesssscsescseescsssesevscecssseccsssesvevsetevaveceess 6 People v. Cuevas (2008) 44 Cal4th 374.0... ccccsccsssesssssssssssssesscscsssssevensssacseessscevacentecas 6 People v. Johnson (2009) 47 Cal4th 668 0... cecccsccccsesecenscsesecscsssessescsssssessesesvavseees 4,6 - People v. Kaanehe (1977) 19 Cal.3dLoeccesesessessesessssscscecsesesscsssssssscsuceucsesvsvsessncvasacens 6 People v. Pannizon (1996) 13 Cal4th 68 00. cccccsccccscsesscsescessecscsssssevscsesaeesesestsvecseraes 4,6 People v. Placencia (2011) 194 CalApp.4th 489 oo ccccccsecscesssscsssssssesserssaseeveess 2,3,4 People v. Ribero . (1971) 4 Cal.3d 55oecesecesssessssssesscscsesecscsesssssevsusecessstevsveceesarerens 6 People v, Totari | (2002) 28 Cal4th 876.0... cccccccssssessescssessseecsssessessscsrssessssesvssscaseatscees 4 STATUTES Gov. Code, § 6995S ocesescseneestessesenenecsesaessssesessesesevscssstessetaunssecssstseatersevecnnvers 2 Pen. Code, 8 LOLG.Seseceeeeeeeesseteeseesessessessssecsesecsessvansesseeeusvevaveeeverares 1,3,4 § 1202, SUD. (A) oo eeeccsessesecsseseessscsecsesscsssscsessecsevsesaesnsvecevausarraseaes 1 § 1237, SUDA. (D) oo secseeeersssesesersssssescsecscsssssevscsessevsvsvsvevavaeeaverees 4 8 QB7S ee iceeseececscsnetsctsesesesecsscaecsscsssnsessevsuvevsesavaseeseaveavevatenes passim il Court RULES Cal. Rules of Court, rule 8.500 vcescecssssssssssssevesvssesessecesceceesssssssssassesessssssssasiesssasssasssssssevesesee | rule 8.500(b)(1)...ssscscccesecssssecsecssesssssssssssssssssesessssssssssessassssssssssseeees 3, 6 Tle 8.504 ..ascescssssesnsssssseeseetnstinsetunstiisssesiunsseisssesesastssstesesetn 1 iil TO THE HONORABLETANI CANTIL-SAKAUYE,CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: _ The People of the State of California, plaintiff and respondentinthe above-entitled action, hereby petition this Honorable Court to grant review in this case, pursuant to California Rules of Court, rules 8.500 and 8.504, followinga published decision by the California Court of Appeal, Second Appellate District, Division Two, case number B225443,filed on December1, 2011, affirming the judgment of conviction. (Exh. A.) ISSUE PRESENTED Musta defendantsecurea certificate of probable cause pursuant to Penal Code section 1237.5 in order to appeal the denial of a motion to withdraw pleaforfailure to adequately advise of the immigration consequences pursuant to Penal Codesection 1016.5? STATEMENT OF THE CASE This petition for review seeksto resolve the published disagreement in the Court of Appeal concerning whether a defendant must secure a certificate of probable cause pursuant to Penal Codesection 1237.5 before he can appeal the denial of a motion to withdraw his plea for failing to adequately advise him of the immigration consequences. Here, on July 7, 1986, appellant waived his rights, entered a guilty plea to a charge of possession of a deadly weapon (Pen. Code, § 1202, subd. (a)) and wasthereafter sentencedto serve three years of formal _ probation, plus one year in countyjail, with the execution of the term stayed for a year and then subsequently stayed permanently. (1CT 5-7.) The minute order for this proceeding contained a checked box that read: “Defendant advised and personally waiveshis right to confrontation of witnesses for the purpose of cross-examination, and waivesprivilege against self-incrimination. Defendant advised of possible effects of plea on any alien or citizenship/probation or parole status.” (1CT 4, 81.) Nearly 24 yearslater, in a letter dated October 5, 2009, appellant was ' notified that the reporter’s transcript ofthe July 7, 1986, proceeding could not be preparedas the reporter’s notes had been destroyed pursuant to Government Code section 69955, which permits destruction of notes for noncapital proceedings after more than ten years elapsed from the taking of the notes. (ICT 27-29.) | On January 11, 2010, appellantfiled a motion in thetrial court to vacate his plea on the ground that he was not adequately advised of the immigration consequencesofhis plea. (ICT 10-78.) A hearing was held on the motion. (1RT 4-17.) The People stipulated that the reporter’s transcript for appellant’s plea proceeding wasnot in the court’s file. (IRT 22.) The court issued a minute order denying appellant’s motion. (2CT 84- 86.) “ Petitioner filed anotice of appeal, but did not seek or obtain a certificate of probable cause. (ICT 87.) Respondent.arguedthe appeal — should be dismissed because appellant failed to comply with Penal Code section 1237.5, mandating a certificate of probable cause before he could raise the claim, relying upon People y. Placencia (2011) 194 Cal.App.4th 489, which addressed this precise issue. Respondent further arguedthatin any event, the trial court did not err‘as the People met their burden and rebutted the presumption that appellant had not been adequately advised of the immigration consequencesofhis plea. The Court of Appeal, Second Appellate District, Division One, in a published opinion rejected our argument concerning the dismissal of the appeal for failure to securea certificate of probable cause, expressly recognizing and rejecting the contrary opinion reached on the sameissue in People y. Placencia, supra, 194 Cal.App.4th 489. In the remainderofthe published opinion, the court affirmed the judgment on the merits. A separate concurring and dissenting opinion agreed with respondentthatthe appeal should be dismissed for failure to obtain a certificate of probable cause. The conflict between Placencia and the Court of Appeal’s published opinion in the instant case will cause uncertainty over whether a defendant mustfirst secure a certificate of probable cause when challenging the denial | of a motion to withdraw plea for failing to adequately advise of the immigration consequences. Asa result, review is necessaryto settle an important question of law and secure uniformity of decision. (Cal. Rules of Court, rule 8,500(b)(1). os REASONSFOR GRANTING THE PETITION THECOURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT OVER WHETHER A DEFENDANT MUST SECURE A CERTIFICATE OF PROBABLE CAUSE IN ORDER TO APPEAL THE DENIAL OF A MOTION TO WITHDRAW A PLEA FOR FAILURE TO ADEQUATELY ADVISE OF THE IMMIGRATION CONSEQUENCES | The Court of Appeal’s published decision that a defendant need not ‘secure a Certificate of probable cause to appeal the denial of a motion to withdraw a pleafor failing to adequately advise as to the immigration consequences expressly contradicts the conclusion reached in Placencia, supra, 194 Cal.App.4th 489, on this precise question. In Placencia, the appellate court recognized that an appeal from the denial of a Penal Code section 1016.5 motion was “technically from an ‘order madeafter judgment’ (§ 1237, subd. (b)) and not ‘from a judgment of conviction upon a plea’ of guilty or nolo contendere. (§ 1237.5.)” A motion nevertheless required a certificate of probable causebecause it followed “a claimedfailure bythetrial court to advise the defendantofthe - immigration consequencesofa plea of guilty or nolo contendere which necessarily predates the entry of the plea and affects the validity of the plea.” (Ud. at pp. 493-494.) The Placencia court cited this Court’s opinions in People v. Johnson (2009) 47 Cal.4th 668, and People v. Pannizon (1996) 13 Cal.4th 68, which noted that the “‘critical inquiry’” and “‘crucial issue’” | | in determining whethera certificate of probable cause was required - pursuantto Penal Codesection 1237.5 was “‘not the time and mannerin 999- which such challenge was made’” but was whether the defendant challenge - was “‘in substance a challengeto the validity of the plea.’”” (/bid.) The ~ court noted that Penal Code section 1237.5 only concerned “the procedure » for perfecting an appeal from a judgment based on a plea ofguilty or nolo contendere” andthatit did not “limit the grounds upon whichan appeal may be taken.” Thus, requiring a defendantin such circumstancesto obtain a certificate of probable cause would not impedehis right to appeal any non-frivolous cognizable issue, (/bid.) | . However, the Court of Appeal in the instant case addressedthis precise question and came to a contrary conclusion. The court instead cited People v. Totari (2002) 28 Cal.4th 876, 886-887, where this Court held the denial of a section 1016.5 motion was an order madeafter judgment and was appealable under Penal Code section 1237, subdivision (b). From this _the court below concludedno certificate of probable cause was required to perfect the appeal becauseit followed “from Totari’s reasoning that section 1237, subdivision (b) literally applies to the denial of a section 1016.5 motion, thus permitting an appealthat is not limited by section 1237.5.” (Id. at p. 6.) | A separate concurring and dissenting opinion disagreed with the majority and concluded the appeal should have been dismissed pursuant to Placencia. The concurring and dissenting opinion specifically recognized, as did the Placencia court, that this Court in Totari did not consider whethera certificate of probable cause was required because the defendant there in fact obtained a certificate of probable cause. This is an important question of law which now needsto besettled. ._ Indeed, the importanceofthis issueis underscored by this Court’s recent opinion in People v. Maultsby (S182042, Jan.5,2012) _Cal.4th_—_‘([2012 WL 193 70], where the Court determined that a defendant need not secure a certificate of probable cause when,after pleading not guilty and being convicted of the underlying substantive charge, he files an appeal raising only his admission of a prior conviction. The Court determined the defendantdid not need to secure a certificate of probable cause because he pleaded not guilty to the substantive charge. In doing so, the Court specifically noted that when a defendant-- like appellant in theinstant case -- pleads guilty or nolo contendere to the substantive charge:“This factual circumstance alonetriggers section 1237.5’s requirementthat a defendant obtain a certificate of probable cause.” (/d. atp. _ [2012 WL 19370, *4].) The Court emphasized that “section 1237.5 byits termsis triggered only by a defendant’s plea of guilty or nolo contendere to the substantive charge,” and noted that section 1237.5 “focuses on whether a defendant has pled _ guilty or nolo contendere to the substantive charges in the first place.” (Jd. at p. *6, fn. 4) “In other words, whether ornot a defendant’s appellate claim challenges thevalidity of his plea -- or in this case, his admission of an enhancementallegation -- matters only if the appeal implicates section 1237.5 in the first place.” (dd. at p. *4) This Court in Maultsby also noted that the policy considerations -- “promoting economy”by “screening out wholly frivolous appeals” and preventing “the unnecessary expenditure of time and moneyspent on preparing the record on appeal, appointing appellate counsel, and considering and rendering the decision ofthe appealitself’ -- were advanced by extending Penal Codesection 1237.5 only to convictions after pleas of guilty and nolo contendere. (/d. at p. *5, citing People v. Mendez (1999) 19 Cal.4th 1084, 1095; see also People v. Buttram (2003) 30 Cal.4th 773, 781: In re Chavez (2003) 30 Cal.4th 643, 650-651.) Such policy considerations apply in the instant case. This published opinion tests the most basic proposition ofcertificate of probable cause law from People vy, Ribero (1971) 4 Cal.3d 55, 64: that the “determinative _ factor” under Penal Codesection 1237.5 is not whenthe hearing on the motion occurs, but the fact that the motion in substance amounts to a challenge to the plea. (See People v. Johnson (2009) 47 Cal.4th 668, 679; People v. Cuevas (2008) 44 Cal.4th 374, 381; People v. Panizzon (1996) 13 Cal.4th 68, 76; People v. Kaanehe (1977) 19 Cal.3d 1, 8.) It makeslittle sense to encourage defendants to withhold a motion to withdraw the plea until after judgment andthen the appeal from a denial of the motion to | ~ vacate as a meansof evadingthe certificate of probable cause requirement. | Manyappeals,like this one, involve old cases with fragmentary or | destroyed records and evidentiary hearings involving hazy memories of the surviving participants in ancient plea hearings. Theseare precisely the kinds of cases susceptible to findings of frivolousness by thetrial judge undersection 1237.5. | Respondent acknowledges that appellant’s conviction was affirmed, . and recognizes that the ultimateresult sought here is that the appeal be dismissed, Nevertheless, respondent seeks review because this threshold appellate issue is of statewide importance and the Court of Appeal decisions are at odds overit. This Court should thereforesettle this important question of law and secure uniformity of decision. (Cal. Rules of Court, rule 8.500(b)(1).- CONCLUSION For the foregoing reasons, respondent respectfully requests that review be granted. Dated: January 10, 2012 Respectfully submitted, KAMALA D, HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General LAWRENCEM. DANIELS Supervising Deputy Attorney General KK(> - STEVEN D. MATTHEWS Supervising Deputy Attorney General Attorneysfor Respondent SDM:mol LA2010503475 51067482.doc CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point _ Times New Romanfont and contains 1,836 words. "Dated: January 10, 2012 KAMALAD. HARRIS “ Attorney General of California STEVEN D. MATTHEWS _ | Supervising Deputy Attorney General Attorneysfor Respondent EXHIBIT A Filed 12/1/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION TWO THE PEOPLE, B225443 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A537388) Vv. VICTOR D, ARRIAGA, Defendant and Appellant. APPEALfrom an order of the Superior Court ofLos 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, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys Generalfor Plaintiff and Respondent. Defendant and 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 adequately advised ofthe potential immigration consequencesofhis guilty plea. Respondent contends that defendant was required to obtain a certificate of probable causeto 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 abuse its discretion in denying the motion, we affirm the order. | _ BACKGROUND On January 11, 2010, defendantfiled a motion to vacate his 1986 convictionin Los Angeles Superior Court case No. A537388, in which he had pled guilty to a violation of Penal Code section 12020, subdivision (a)(8).! In support of the motion, defendant submitted his declaration describing the circumstancesof his conviction as well as facts regarding himself and his family. Defendant does “notrecall being properly advised by the court of the immigration consequencesthat could result from this conviction when [he] entered [his] plea.” He did not know that the plea could result in a permanent separation from his family and work. The preprinted minute order of the 1986 plea hearing states: “Defendant advised of possible effects of plea on any alien or citizenship/probation status.” No reporter’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), who was the calendar deputy assigned to taking pleas in July 1986 in the department where defendant entered his. plea. 1 All further statutory 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 consequencesoftheir pleas. Hofman,rather than the judgesitting in that department, would take the waivers himself 99.9 percent of the time. Hetestified that in addition to explaining the charges and the defendant’s constitutional rights, he “always” advised defendants of the immigration consequencesof their pleas. He remembered the language he used, andrecitedit: “There are a number of consequencesto yourplea. One of those consequencesis 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 United States after you enter your plea. And if you apply for citizenship, that application may be denied.” Defendanttestified that he did not recall being made aware that 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 not remember 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 dueto 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 defendant entered his plea, and that the language used by Hofman substantially 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 of a plea of guilty or nolo contendere, the trial court must give the defendant the following advisement on 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 judgmentandhis plea. (§ 1016.5, subd. (b).) © _ “To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she wasnot properly advised of the immigration consequencesas provided by thestatute; (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 adverse immigration consequences;and (3) heor she was prejudiced by the nonadvisement. [Citations.]” (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari); see also People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200 (Zamudio).) II. No certificate of probable cause required Citing the recent decision in People v. Placencia (2011) 194 Cal.App.4th 489 (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 a judgment of conviction upona plea of guilty or nolo contendere unlessthe trial court has executed and filed a certificate of probable cause for the appeal. The court in Placencia held as a matter of first 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.4th at 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 whicharoseafter entry ofthe 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 comment on the requirements of section 1237.5 or the issue of appealability. (E.g., People v. Gutierrez (2003) 106 Cal.App.4th169, 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 [nocertificate] (Ramirez), People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312 [no certificate], disapproved on other grounds in Zamudio, supra, 23 Cal.4th at p. 200,fn. 8.) 4 motion, because such a motion “follows a claimedfailure by the trial court to advise the defendant of the immigration consequencesof a plea of guilty or nolo contendere which necessarily precedes the entry of the plea and affects the validity of the plea. [Citations.]” (Placencia, supra, at pp. 493-494.) The Placencia court concludedthat because the exception did not apply, a certificate of probable cause was required. (/d. at pp. 494-495.) As nonewasfiled in that case, the court dismissed the appeal. (Jd. at p. 495.) Defendant contendsthat the Placencia decision begs the question whether an exception to section 1237.5 was required in thefirst instance. We agree. As the Placencia court recognized, the California Supreme Court held in Totari that the denial of a section 1016.5 motion is an order made after judgment whichaffects the substantial tights 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 judgment of conviction are made expressly subject to section 1237.5. There is no such condition in subdivision (b) of section 1237, for appeal from orders exitered after the final judgment of conviction which affect 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 requirement of section 1237.5,if the motion was based uponthe invalidity of the plea. The court relied in part upon the California Supreme Court’s following language in Johnson: “A defendant must obtain a certificate of probable cause in order to appeal fromthe 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 supportof its holding in Johnson, the California Supreme Courtcited its earlier decision in People y. Ribero (1971) 4 Cal.3d 55 (Ribero), where the 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 7otari suggests compliance with section 1237.5 was a prerequisite to the appeal. . 5 the substanceofthe error being challenged, not the time at which the hearing was conducted. ... [The defendant] cannot avoid the requirementsof section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea. To hold otherwise would beto invite such motions as a matter of course, and would be wholly contrary to the purpose of section 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 wasthat the defendant’s labeling of the appeal as one from an orderafter judgmentcould not be allowed to circumvent the requirements of section 1237.5 and thus undermineits purpose of preventing frivolous appeals following guilty and nolo contendere pleas. (Placencia, supra, 194 Cal.App.4th at pp. 493-494.) It was not the defendant, however, who labeled the appeal from the denial of a section 1016.5 motion as 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).” (TYotari, supra, at p. 887.) As we have heretofore noted, section 1237, 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 postjudgmentorder that 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 no certificate of probable cause was required to perfect this appeal. 6 II, Standard of review Wereview thetrial court’s ruling for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 191.) To establish an abuse of discretion, defendant must show that it was exercised in an arbitrary, capricious, or patently absurd mannerthatresulted in a 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 we accept the court’s credibility determinations. (People v. Quesada (1991) 230 Cal.App.3d 525, 533 (Quesada).) IV. Preponderance of 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 not to have received the required advisement.” (§ 1016.5, subd. (b).) The presumption was rebuttable, and the prosecution bore the burden to prove by a preponderanceofthe evidence that the required advisements were given. (People v. Dubon (2001) 90 Cal.App.4th 944, 953-954 (Dubon).) Defendant contends that a preponderance of the evidenceis the wrong standard of proof, and urges this court to reject the contrary holding in Dubonbyarticulating a clear and convincing standard. | Defendant acknowledges that Evidence Code section 115 provides: “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” However, he points out that where the Legislature has not established a standard of proof, the issue becomesa judicial function to be exercised by consideringall aspects of the law. (People v. Burnick (1975) 14 Cal.3d 306, 314.) No standard of proof is specified in section 1016.5, and defendant suggests that the heightened burden of proof applied in deportation and denaturalization proceedings would be appropriate here, although a ruling on the motion does notdirectly result in either consequence. (See Woodby v. INS (1966) 385 U.S. 276, 285 [deportation]; Schneiderman v. United States (1943) 320 U.S. 118, 125 [denaturalization].) 7 Weneed not reach defendant’s contention regarding the standard of proof, because defense counsel expressly agreed, when asked to 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 Dubon that the appropriate standard of proof is a preponderance of the evidence. Due process requires a higher standard of proof when the government deprives an individualof 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 upona consideration not only of the individual’s interests, but also of the countervailing governmental interest. (Santosky, Supra, at p. 754; Jason K., supra, at p. 1556.) The standard of proof should reflect the relative importance of the 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 ofjudgmentsis an important public interest. (See In re Crow (1971) 4 Cal.3d 613, 622-623.). Thisis ‘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 importance ofthe ultimate decision upon a section 1016.5 motion, we concludethat the court correctly applied a preponderance standard. V. Substantial evidence supports finding that advisements were given Defendant also contends that even under the lower, preponderanceofthe 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 amount to an adequate record of the required advisement. (Dubon, supra, 90 Cal.App.4th at p. 954.) In Dubon, there was no reporter’s transcript, and the only evidence of the advisement was a minute order, nearly identical to the minute orderin this case, stating that the defendant ‘““was advised of the possible effects of his plea on any ‘alien/citizenship/probation/parole 8 232 status.’” ([bid.) The Dubon court held that while such a minute order provides some evidence that the required advisements were given, it is insufficient, without more, to establish a complete advisement of the three possible consequences: deportation, exclusion, and denial of naturalization. (/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 conduct on a specified occasion in conformity with the habit or custom.” (Evid. Code, § 1105.) Defendant argues that Hofman’s testimony wasinsufficient because it was contradicted by inferences that may be drawn from the absenceofclerk’s notes explaining the preprinted language of the minute order. Defendantalso argues that Hofman’s testimony wasinsufficient because it was based only upon his memory, uncorroborated by notes of the plea hearing, a checklist, or a preprinted plea form. Anyinference from theterse languageofthe minute order that the advisement was inadequate was dispeiled by Hofman’s testimony where he gavea detailed recitation of his oft-given advisement of immigration consequences. Further, the authorities cited by defendant do not hold or suggest that such testimony of custom and habit must be corroborated with a written plea form containing the required advisementor other evidence. (See Gutierrez, supra, 106 Cal.App.4th at pp. 171-173; Ramirez, supra, 71 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 Defendant contends that the advisement was inadequate because evidence suggested that he may have needed a Spanish interpreter. Defendant points out that the record does not reflect that he was afforded an interpreter when he entered his plea in 1986, although one was appointedin later court proceedings. He also points to evidence that he studied English in 2008 and 2009. Defendant concludes that the advisement was not shownto have been given in a language he understood, and was thus inadequate. Defendant’s sole authority for his contentionis article I, section 14 of the California Constitution: “A person unable to understand English who is charged with a crime hasa right to an interpreter throughout the proceedings.” He cites no authority supporting his suggestion that this issue may beraised for the first time on appealor that it was the prosecution’s burden to prove defendant’s English proficiency. In any event, defendant did not testify 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 entered his plea in 1986, as he had lived in this country for more than 15 years. The record does notindicate any detail concerning the English classes taken in 2008 and 2009. It is unknown whether they were courses in basic comprehension rather than grammaror 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 /n re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453.) We conclude that defendant’s contention has no merit. VII. Advisements were properly given by the prosecutor Defendantnotesthat section 1016.5 requires “the court” to administer the advisement. He contendsthat “court” is synonymous with “judge” and excludes anyone to whom the judge might delegate the duty. He concludesthat by permitting the prosecutor to advise defendant, the court that took his plea violated not only thestatute, but also his right to due process. As defendant acknowledges, the court held in Quesadathat “court” refers to the tribunal and the section 1016.5 advisements “may be given through any of the numerous individuals acting on behalf of that tribunal, including the judge, counsel, the court reporter, or the clerk. So long as the legislative purpose is advanced by having some person acting on behalf of the tribunal actually advise defendant of the immigration consequencesofhis plea and that advice is reflected ‘on the record,’ the actual adviseris immaterial. Indeed, it is commonpractice for the prosecutor or defense counsel, rather than the judge, to advise the defendant of his rights and the consequencesofa guilty plea, including the immigration consequences, andto elicit the necessary waivers of those 10 rights. [Citations.]” (Quesada, supra, 230 Cal.App.3d at pp. 535-536; see also Ramirez, supra, 7\ Cal.App.4th at pp. 522-523.) Defendant contendsthat the plain meaning of “court” is “judge”not “tribunal,” and asks that we reject Quesada’s reasoning because it was dictum. He also suggests that when someoneother than the judge gives the advisements, the judge necessarily abdicates his responsibility to accept a plea, vacate the plea, allow defendantthe opportunity to discuss the consequencesof his plea, and determine whether the plea was voluntary. Defendant argues that such a procedure can create an atmosphere of subtle coercion, Wedo not agree with defendant’s characterization of the proceedings, or his restrictive definition of “court.” Had the Legislature intended so narrow a 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 exclusion from admission to the United States. (Zamudio, supra, 23 Cal.4th at pp. 193- 194 & fn. 7.) We do not agree with defendant that a more 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. VIII. No abuse of discretion In sum,the trial court applied the correct standard ofproof, and substantial evidence supported the prosecution’s showingthat the statutorily required advisements were properly given in this case. Defendantdid not establish that he needed a Spanish interpreter, or that section 1016.5 required advisement from a judge rather than from the | prosecutor. We concludethat the trial court did not abuseits discretion in denying the motion. 11 DISPOSITION The trial court’s order denying the motion to vacate defendant’s 1986 conviction is affirmed. CERTIFIED FOR PUBLICATION CHAVEZ T 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,! I would not reachthe issue. Rather, I would follow People v. Placencia (2011) 194 Cal.App.4th 489, 494 [holding that before a defendant may appeal the denial of a section 1016.5 motion, he must first obtain the certificate of probable cause required by section 1237.5]. Because defendantdid not obtain a certificate of probable cause,I would dismiss his appeal. Prior to section 1237.5, “‘the mere filing of a notice of appeal required preparation of a record and, in many cases, appointmentof counsel; only after expenditure of those resources would an appellate court determine whether the appeal raised nonfrivolous issues that fell within the narrow boundsof cognizability.’” (People v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson).) The statute was designedto “‘remedy the unnecessary expenditure ofjudicial resources by preventing the prosecution of frivolous appeals challenging convictions on a plea of guilty.’ [Citation.]” (Ubid.) Applying section 661237.5 does not create “‘undue hardship on defendants with potentially meritorious appeals. The showing required to obtain a certificate is not stringent. Rather, the test applied by the trial court is simply “whether the appeal is clearly frivolous and vexatious or whetherit involves an honest difference of opinion.” [Citation.] Moreover, a | defendant who files a sworn statement of appealable groundsas required by section 1237.5, but fails to persuade the trial court to issue a probable causecertificate, has the remedyoffiling a timely petition for a writ of mandate [seeking review ofthe 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, if all else fails, the most fundamental kinds of attack remain available on habeas corpus.” (Peoplev. 1 All further statutory references are to the Penal Code unless otherwise indicated. Buttram (2003) 30 Cal.4th 773, 793.) To implementsection 1237.5, the Judicial Council promulgated California Rules of Court, rule 8.304(b). (Johnson, supra, 47 Cal.4th at p. 677, fn. 3.) The rule provides that to appeal after a no contest or guilty plea, the “defendant mustfile in... superior court—with the notice of appeal. . . —the statement required by [section 1237.5] for issuance of a certificate of probable cause.” (Cal. Rules of Court, rule 8.304(b)(1).) But “[t]he defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [§] (A) The denial of a motion to suppress evidence under [section 1538.5]; or [|] (B) Groundsthat arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4).) Thereis no basis for implyingan exception into section 1237.5 for an appeal - following the denial of a section 1016.5 motion. An immigration advisement is no more important than any other advisement necessary for a defendant to understand the consequences of entering a no contest or guilty plea. And the need for trial court to perform a gatekeeping function exists any time a defendant seeks to challenge the validity of a plea on appeal. The exception to section 1237.5 proposed by the majority conflicts with legislative intent and public policy, andit also conflicts with California Rules of Court, rule 8.304(b). Regardless, the majority opines that an exception is dictated by People v. Totari (2002) 28 Cal.4th 876 (Totari). But Totari did not discuss the applicability of section 1237.5 to an appeal from the denial of a section 1016.5 motion. A caseis not authority for a proposition not considered. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.) ASHMANN-GERST DECLARATION OF SERVICE - Case Name: People v. Victor Diaz Arriaga No.; B225443 I declare: I am employedin the Office of the Attorney General,whichis the office of a memberofthe ‘California State Bar, at which member’s direction this service is made. I am 18 years of age or older and nota partyto this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On January 10, 2012, I served the attached Petition for Review by placing a true copy thereof enclosed in a sealed envelopein the internal mail system of the Office of the Attorney Generalat 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Joanna Rehm Attorney at Law 12121 Wilshire Boulevard, Suite 600 Los Angeles, CA 90025 (Attorney for Appellant Arriaga) Hon. Steve Cooley, District Attorney Los Angeles District Attorney's Office Attn.: DDA Bobby Zoumberakis 210 West Temple Street, Suite 18000 Los Angeles, CA 90012-3210 California Court of Appeal Second Appellate District 300 S. Spring Street, 2nd Floor Los Angeles, CA 90012 (hand-delivered) ’ John A. Clarke Clerk of the Court Los Angeles County Superior Court 111 N. Hill Street Los Angeles, CA 90012 To be delivered to Hon. Steven D. Blades, Judge CAP-LA California Appellate Project (LA) 520 S. Grand Ave., 4th Floor Los Angeles, CA 90071-2600 On January 10, 2012, I caused 13 copies of the Petition for Review in this case to be delivered to the California Supreme Court at 350 McAllister Street, First Floor, San Francisco, CA 94102- 4797 by FedEx Priority Overnight, tracking number 87561348 5967. . I declare under penalty ofperjury underthe lawsofthe State of Californiathe foregoing is true and correct and that this declaration was executed on January 10, 2012, at Los Angeles, California. M.O. Legaspi Declarant SDM:mol LA2010503475 §$1073128.doc [ Signatur, c |