Filed 6/8/22 Argot v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for writ of mandate from an order of the Appellate Division of the Superior Court of San Bernardino County. Lynn M. Poncin, Cheryl C. Kersey, and Corey G. Lee, Judges. Petition denied.

Immigrant Crime and Justice, Karl W. Krooth, and Julian Sanchez Mora for Petitioner.

Jason Anderson, District Attorney and John A. Slezak, Deputy District Attorney for Real Party in Interest.

This is a petition for writ of mandate by petitioner Jonatan Josue Navarro Argot after the Appellate Division of the Superior Court of San Bernardino County (Appellate Division) affirmed the trial judge’s order denying his motion to vacate his conviction on the ground that he pled guilty to misdemeanor soliciting prostitution without understanding the immigration consequences of his plea. (Pen. Code, § 1473.7, subd. (a)(1), unlabeled statutory citations refer to this code.) We conclude the trial judge’s decision was supported by substantial evidence but deny the petition for writ of mandate because Navarro Argot had an adequate legal remedy by way of his direct appeal to the Appellate Division.

I

FACTS

1. Navarro Argot’s Offense and Plea

On November 15, 2013, the City of Rialto Police Department issued Navarro Argot a notice to appear for soliciting prostitution, a misdemeanor disorderly conduct violation of section 647, subdivision (b). Navarro Argot appeared on January 23, 2014 before San Bernardino County Superior Court Judge Steven A. Mapes. He was not represented by counsel but received assistance from a certified Spanish language interpreter. Navarro Argot pled guilty to the misdemeanor offense.

As part of entering the plea, Navarro Argot signed a form setting out the rights he was waiving. Among other things, he initialed the box next to the statement, “I understand that if I am not a United States citizen my plea will result in my deportation, exclusion from future admission to the United States, or denial of naturalization under the laws of the United States.” Navarro Argot also signed the form next to the paragraphs waiving the right to have an attorney represent him.

The certified interpreter, Jetty Sagot, also signed the form and affirmed she had translated the entire form for Navarro Argot. “I declare under penalty of perjury under the laws of the State of California that I have read all of the above to the defendant in the Spanish language.”

The trial judge indicated in a minute order that he readvised Navarro Argot of his rights and found he “understands the charge(s), the possible penalties, right against self-incrimination, to confront and cross examine witnesses, to a public and speedy trial, to Jury trial, to have an attorney present at all stages of the proceedings and to the Public Defender if indigent and to the compulsory process of the court to subpoena witnesses.” He found Navarro Argot “freely, voluntarily, knowingly, intelligently, expressly waives these rights in open court.” The minute order doesn’t indicate that the trial judge readvised Navarro Argot of the immigration consequences of his plea.

The judge then imposed the agreed term of 30 days in jail (suspended), three years of probation, and $750 in fines and fees. Navarro Argot completed his probation without further incident.

2. Navarro Argot’s Motion to Vacate the Conviction

On August 3, 2018, Navarro Argot filed a motion to vacate his misdemeanor conviction under sections 1016.5 and 1473.7. He supported the motions with a declaration and exhibits, which included the January 23, 2014 minute order and plea form.

According to Navarro Argot’s declaration, he is a citizen of Mexico, born on March 13, 1985, and had lived in the United States since 2008. He said he had been legally married to Samantha Escajeda since August 2012 and they have twin boys who were five years old at the time. He acknowledged his arrest and said he didn’t understand the procedures or his rights. “I did not understand that I could get the services of a Public Defender who could have represented and defended me properly at no cost. I would have also obtained expert immigration advice instead I represented myself in court. [¶] When I was arrested I was only given a citation to go to court.”

He said he felt he had received mistaken information from the Spanish language interpreter who assisted him. “The court interpreter who talked to me about my plea told me that if I plead guilty to the charge I would not be going to jail. I specifically asked her if I was going to jail for my ticket and she said ‘no’. Based on this information I decided not to get an Attorney since I specifically asked the interpreter if I would have problems with my immigration case that was already in process and she said ‘no’.”

He also said “the interpreter was in a hurry to get me to sign the form as she quickly read over certain parts of the form with me. I felt very rushed and stressed because of that I did not understand the consequences of my plea.” He said the interpreter showed him the plea form and directed him to sign in the relevant place and boxes but said she didn’t read the entire form to him. As a result, he “did not understand that there was a part on the form that warned me that I could get deported if I plead guilty.” Navarro Argot claimed he would have asked for an attorney if he had understood what was at stake.

Navarro Argot said his wife was in the process of filing to change his immigration status at the time, so the issue was on his mind. He attached as support a Department of Homeland Security notice showing his wife had submitted an I-130 Petition for Alien Relative on his behalf. He said he would have taken a longer probationary period or paid a higher penalty to avoid problems with his immigration status.

The People opposed the motion to vacate Navarro Argot’s conviction. They argued the documentary record established Navarro Argot had been properly advised of the immigration consequences of his plea agreement. They also argued Navarro Argot hadn’t established prejudice because he wasn’t subject to a deportation order and his misdemeanor conviction for soliciting prostitution isn’t a crime of moral turpitude making him deportable. To trigger deportation, a conviction must occur within 5 years of admission to the United States and must expose the person to a sentence of one year or longer. (8 U.S.C. § 1227 (a)(2)(A)(i).) They argued Navarro Argot’s conviction doesn’t qualify because, as a misdemeanor, it didn’t expose him to a sentence of more than a year.

In response, Navarro Argot argued he was prejudiced because the conviction precludes him from obtaining permanent resident status. He pointed out his wife had applied for that status in November 2013 but represented the petition must be processed at the United States Consulate in Mexico. He argued his conviction for engaging in prostitution renders him inadmissible to the United States as an alien who “directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution.” (8 U.S.C. § 1182(a)(2)(D).) Thus, he argued, he could be denied readmission to the United States if he attempted to change his immigration status.

3. Hearing on the Motion to Vacate

San Bernardino Superior Court Judge Kyle Brodie held a hearing on Navarro Argot’s motion to vacate where he heard testimony from Navarro Argot and the interpreter, Jetty Sagot. The judge also took judicial notice of the advisement of rights, waiver, and plea form.

Navarro Argot reiterated and elaborated his statement in his declaration. He testified he was born in Mexico on March 13, 1985 and entered the United States in April 2008. He said in November 2013 he received a ticket for soliciting prostitution. He appeared before a judge, as directed, and an interpreter was assigned to translate for him.

Navarro Argot said he told the translator he had a case with immigration, and he asked her whether he could end up in jail if he was convicted or pled guilty and asked whether that could affect him in any way. He said the translator said no and pointed to where he was supposed to sign. He said he decided not to ask for an attorney based on this information.

Navarro Argot also testified the interpreter was explaining everything very quickly and said parts of her translation were not word-for-word. However, he acknowledged the signed plea form and acknowledged initialing the box next to the warning that “I understand that if I am not a United States citizen, my plea will result in my deportation, exclusion from future admission to the United States, or denial of naturalization under the laws of the United States.”

The court interpreter, Jetty Sagot, who assisted Navarro Argot at his plea hearing, testified as well. She said she had served as a Spanish interpreter in a 2014 case charging Navarro Argot. She acknowledged signing the advisement of rights, waiver, and plea form as the interpreter. She said she didn’t remember Navarro Argot’s case in particular, but said it was her practice to read the entire form to defendants in Spanish. She said she would have translated for Navarro Argot the paragraph which indicated his plea would result in deportation, exclusion, or denial of naturalization if he was not a United States citizen. Asked whether Navarro Argot had asked her if he would have problems with his immigration case, she responded, “I do not ever give immigration advice.” She also denied hurrying through any of her reading of the plea form.

After her direct testimony, the trial judge asked the interpreter two questions. First, he asked her whether it was her practice to read “parts of the plea form that are blocked out as not relevant to his particular charge.” She answered that she did not read those portions of the form. Second, the trial judge asked how she responded to defendants who asked her about the consequences of their pleas. She testified it was her practice to tell them she’s not an attorney and isn’t authorized to give legal advice.

4. The Trial Judge’s Ruling

The judge found the interpreter’s testimony credible and, based on her testimony, found she had translated for Navarro Argot the warning that his plea would have the immigration consequences of denial of naturalization, deportation, or exclusion from admission to the United States. The judge noted Navarro Argot’s testimony that the process was fast, but said the obligation is for defendant to be advised of his rights, which the judge found had occurred.

The judge concluded Navarro Argot entered his plea with a full appreciation of the immigration consequences, leaving him with no legal basis to vacate the conviction. Accordingly, he denied the motion to vacate.

5. Proceedings Before the Appellate Division

On November 5, 2018, Navarro Argot filed a notice of appeal with the Appellate Division of the Superior Court. The same day, he also filed a petition for a writ of mandate from the order denying his motion to vacate. The Appellate Division denied the petition for writ of mandate two days later.

On December 7, 2018, Navarro Argot filed a petition for mandate with this court, regarding the order denying his motion to vacate his 2014 misdemeanor conviction and the Appellate Division’s denial of his mandate petition. On March 13, 2019, we denied Navarro Argot’s mandate petition “without prejudice to refiling once proceedings in the appellate department are completed.”

Meanwhile, the appeal proceeded in the Appellate Division. On January 17, 2019, Navarro Argot filed an application for preparation of settlement statement about his guilty plea. After a hearing, Judge Steven Mapes prepared a settled statement of facts regarding the January 23, 2014 hearing. “1. Court states there was no CSR used for official reporting on the date of arraignment/plea on this matter. [¶] 2. There was no AUDIO recording used for official recording used on the date of arraignment/plea on this matter. [¶] 3. No Public Defender was appointed to represent the defendant on this matter. [¶] 4. There is a sealed manila envelope file stamped 12/16/14 [sic] loose in the court file with red lettering ‘CONFIDENTIAL DEFENSE DISCOVERY PC1054.1 & PC 964.’”

On July 9, 2020, the Appellate Division issued a per curiam opinion. They disagreed with Navarro Argot’s argument that the trial judge erred in denying the motion to vacate the guilty plea. The court first analyzed the trial court’s ruling under section 1016.5 and concluded the trial court did not err by finding Navarro Argot was informed of and understood the immigration consequences of his plea. They also concluded Navarro Argot had failed to establish prejudice. The court analyzed separately whether Navarro Argot was entitled to relief under section 1473.7. They noted he had the burden of proving a “prejudicial error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or no contest.” They determined “the evidence presented shows [he] freely, voluntarily, knowingly, intelligently, and expressly waived his right to counsel in open court. The evidence further shows that the court certified Spanish interpreter properly translated the [plea] form English to Spanish for [Navarro Argot], and the trial court properly gave [him] a readvisement of his rights prior to accepting [his] guilty plea.” They concluded the trial court had properly denied Navarro Argot’s section 1473.7 motion.

Navarro Argot then tried to transfer the case to this court. On July 23, 2020, he applied to the Appellate Division to certify the case for transfer to this court. However, the Appellate Division found no good cause for the transfer and denied the request. Navarro Argot then filed a petition for transfer with this court. On September 1, 2020, we denied the transfer request, because transfer was not necessary to secure uniformity of decision or to settle an important question of law.

On September 9, 2020, the Appellate Division issued its remittitur, finding the July 9, 2020 decision had become final. On September 8, 2020, Navarro Argot filed a petition for mandate from the Appellate Division’s opinion. On March 8, 2021, we ordered the parties to show cause why the relief requested should not be granted.

II

ANALYSIS

1. Navarro Argot’s Petition is Barred

The People argue Code of Civil Procedure section 1086 bars Navarro Argot’s petition outright. That’s not quite right. What is true is we generally won’t issue a writ of mandate if another adequate legal remedy was available to the petitioner. (Irvine v Gibson (1941) 19 Cal.2d 14.)

As the Supreme Court long ago explained, “Section 1086 of the Code of Civil Procedure provides that the writ of mandate ‘must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner. [Citation.] The burden, of course, is on the petitioner to show that he did not have such a remedy.” (Phelan v. Superior Ct. (1950) 35 Cal.2d 363, 366, italics added.) “An appeal is the usual course open to a litigant who believes that the trial court has committed error.” (Ibid.)

Generally speaking, where a criminal prosecution has begun, the superior court is set to proceed with trial, and the defendant has the right to appeal an adverse judgment, the defendant has a “plain, speedy and adequate remedy at law,” and defendant is not entitled to a writ of mandate. (Jordan v Superior Court (1939) 30 Cal.App.2d 436, 437.)

This principle continues to apply after the appeal has been heard and determined. Section 1086 was intended to supply a remedy where none existed in the first place. It wasn’t intended to substitute for an appeal. Here Navarro Argot had an adequate legal remedy—a direct appeal of the trial court’s order denying his motion to vacate to the Appellate Division. The Appellate Division’s opinion denying Navarro Argot’s appeal of his motion to vacate was itself subject to review by this court by way of a motion to transfer, which we denied. It follows that Navarro Argot not only had access to an adequate legal remedy, he actually availed himself of it.

We conclude Navarro Argot has no grounds to petition for a writ of mandate and for that reason alone we deny the petition.

2. The Trial Judge’s Determination Was Supported by Substantial Evidence

Navarro Argot argues the Spanish language interpreter misled him so that he didn’t meaningfully understand the adverse immigration consequences of his guilty plea and conviction and that he wouldn’t have taken the guilty plea absent that misapprehension.

It was Navarro Argot’s initial burden in the trial court to “establish[] by a preponderance of the evidence” his conviction was “legally invalid due to prejudicial error damaging [his] ability to meaningfully understand . . . the . . . adverse immigration consequences of [his guilty plea]. (1473.7, subds. (a)(1), (e)(1).)

Against his position, which he supported with his own testimony, the court certified interpreter who translated for Navarro Argot testified she had properly instructed him. She said she translated all the relevant portions of the form setting out Navarro Argot’s rights and the consequences of his plea, including the paragraph concerning immigration consequences. She said she had Navarro Argot initial the box next to that paragraph to show he had been advised. Against Navarro Argot’s testimony that she told him there would be no immigration consequences of his plea, she testified she never gives immigration advice to people she translates for and instead tells them she’s not authorized to give legal advice. She also denied hurrying through the reading and translation of the form, contrary to Navarro Argot’s testimony.

The trial court credited the interpreter’s testimony. He commented that “solemn declarations in open court carry a strong presumption of [veracity] . . . defendant . . . was told that immigration consequences of his plea would include the denial of naturalization . . . [and] the deportation or exclusion from future admission to the United States.” The judge said, “I think the interpreter’s testimony that that was translated to defendant is credible . . . the obligation under the law is for defendant to be advised of his rights. The Court finds that he was. He entered the plea with a full appreciation of the immigration consequences. I don’t have a legal basis to vacate under the law, so the motion to vacate that plea is denied.”

Were we reviewing the trial judge’s decision, we would be limited to deciding whether substantial evidence supported the finding that Navarro Argot had been properly instructed in his native language and understood the immigration consequences of his plea. The trial judge based his decision on his determination about the witnesses’ relative credibility, and we would be unable to reach a different conclusion on appeal. (People v. Tapia (2018) 26 Cal.App.5th 942, 951 [when reviewing an order denying a section 1473.7 motion, appellate courts “defer to the trial court’s factual findings if supported by substantial evidence” and “do not reweigh the evidence or reevaluate witness credibility”].)

Navarro Argot objects, however, that his hearing in the trial court “was neither full nor fair . . . due to the trial court’s actions and interference with [his] opportunity for cross-examination and impeachment,” thereby damaging his ability to impeach “the credibility of a court interpreter.” Specifically, he argues the trial judge overstepped by interjecting questions and by cutting off one line of questioning on cross-examination.

The trial judge asked after direct examination and before cross-examination whether it was the interpreter’s practice to read portions of a plea form that are blocked out as not relevant. She answered no, saying she didn’t translate portions that had been blocked out. Then the trial judge asked what her practice was when defendants ask about the consequences of their pleas. She said she tells them she’s not an attorney and isn’t authorized to give legal advice.

On cross-examination, Navarro Argot’s attorney asked who crossed-out boxes on the plea form, and she responded, “I would have to speculate.” The trial judge said, “She doesn’t know so there is a lack of foundation,” and questioned the relevance of the issue. Counsel objected that the interpreter had claimed to read every word of the form but then changed her testimony. The court directed counsel to ask her next question.

There’s nothing objectionable about the trial judge’s conduct. Trial judges are permitted to ask questions of witnesses, and in this case the questioning occurred after the close of direct examination and before cross-examination, so it didn’t interfere with the prosecutor’s line of questioning and allowed defendant’s counsel to probe further. (See People v. Raviart (2001) 93 Cal.App.4th 258, 272 [the role the trial judge “is more than that of an umpire; and though his power to examine the witnesses should be exercised with discretion and in such a way as not to prejudice the rights of the prosecution or the accused, still he is not compelled to sit quietly by and see one wrongfully acquitted or unjustly punished when a few questions asked from the bench might elicit the truth”].) As for the decision to cut off a line of questioning on cross-examination, counsel obtained an answer to her question about who modified Navarro Argot’s plea form, which was that the interpreter didn’t know. There’s no basis here for concluding Navarro Argot didn’t receive a full and fair hearing.

Navarro Argot also argues the Appellate Division failed to make the factual findings required by section 1473.7 subdivision (e)(4), specifically whether there was prejudicial error damaging Navarro Argot’s ability to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of his plea. He argues the Appellate Division failed to make that finding, and rested its opinion on the fact that Navarro Argot was properly advised of his rights. This objection is misplaced. In general, it’s not the place of appellate bodies to make factual findings. Section 1473.7 establishes the findings which trial judges must make in ruling on motions under section 1473.7. As we’ve discussed, the trial judge made the appropriate findings, which were supported by substantial evidence.

Navarro Argot argues he “petitioned this Court of Appeal for a writ of mandate to examine whether the so-called affirmance of Respondent court is an extra-jurisdictional nullity.” He argues it is because the Appellate Division “stray[ed] outside the exclusive factors” in subdivision (e)(4) of section 1473.7 and “had no jurisdiction to affirm the denial of a motion under Penal Code § 1016.5 that [Navarro Argot] had not appealed.”

Though neither party mentions it, this argument suggests Navarro Argot should have filed a petition for a writ of review under Code of Civil Procedure section 1068, rather than a petition for a writ of mandate under section 1086. That provision allows us to intervene “when an inferior tribunal . . . has exceeded the jurisdiction of such tribunal . . . and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.” (Code of Civ. Proc., § 1068, subd. (a), italics added.)

Even if we were to construe Navarro Argot’s petition as seeking a writ of review, we would deny relief. His objection that the Appellate Division decided the case on the wrong grounds amounts to a challenge to its correctness, not the court’s jurisdiction. “Where a court has basic jurisdiction over the parties and the controversy, it has the power to decide the issues before it. The power of the court should not be confused with the duty of the court. While the court has the duty in any case before it to decide correctly, implied in that duty is the possibility the court may decide wrongly. Its jurisdiction, or power to decide, is not in any way defeated or limited by a wrong decision.” (Brown Co. v. Appellate Department (1983) 148 Cal.App.3d 891, 904.) In any event, even if we were to quibble with the Appellate Division’s analysis under section 1016.5, they upheld the decision under the appropriate factors set out in section 1473.7 subdivision (e)(4) based on the trial judge’s credibility determinations and factual findings, to which they owed deference.

III

DISPOSITION

We deny the petition for writ of mandate.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.