P. v. Cisneros
Filed 10/3/13 P. v. Cisneros CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
GILBERTO CISNEROS,
Defendant and Appellant.
B244950
(Los Angeles
County
Super. Ct.
No. BA027430)
APPEAL from
an order of the Superior Court of the County
of Los
Angeles, Barbara R. Johnson, Judge. Affirmed.
Rene A.
Ramos for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and David E.
Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In November
1990, defendant and appellant Gilbert Cisneros (defendant) pleaded nolo
contendere to one count of possession of
cocaine for sale and was placed on probation.
2012, defendant filed a motion to vacate his judgment of conviction and
withdraw his plea (motion to vacate) under Penal Code section 1016.5 (section
1016.5). The trial court denied the
motion. On appeal from the order denying
the motion to vacate, defendant contends that the immigration advisement
language in the minute order
memorializing his plea was insufficient to satisfy the requirements of section
1016.5.
Because the
record on appeal did not include the reporter’s transcript for the proceeding
at which defendant pleaded nolo contendere, following briefing on this appeal,
we obtained the reporter’s transcript from defendant’s earlier appeal from the
trial court’s order revoking his probation and, on our own motion, we took
judicial notice of that transcript. The
reporter’s transcript from the earlier appeal included the transcript from the
November 1990 proceeding at which defendant pleaded nolo contendere, which
transcript affirmatively demonstrates that defendant was adequately advised of
the immigration consequences of his plea.
We hold
that because the oral immigration advisement given at the proceeding at which
defendant pleaded nolo contendere adequately advised defendant of the
immigration consequences of his plea, as required under section 1016.5,
subdivision (a), the trial court did not abuse its discretion in denying the
motion to vacate on the grounds that defendant was adequately advised. We therefore affirm the order denying that
motion.
FACTUAL AND PROCEDURAL BACKGROUND
An October 18, 1990, minute order
reflects that defendant was charged with violating Health and Safety Code
sections 11352, subdivision (a) and 11351.
That minute order further reflects that at defendant’s arraignment
hearing, he was advised, inter alia, as follows: “If you are not a citizen, you are hereby
advised that a conviction of the offense for which you have been charged may
have the consequences of deportation, exclusion from admission into the United
States, or denial of naturalization pursuant to the laws of the United
States.â€
On November 27, 1990, defendant
waived his right to jury trial,
withdrew his plea of not guilty, and pleaded nolo contendere to a violation of
Health and Safety Code section 11352, subdivision (a). The minute order memorializing defendant’s
guilty plea provided the following
concerning the immigration consequences of his plea: “Defendant advised of possible effects of
plea on any alien/citizenship/probation/parole status.†But, the reporter’s transcript from the
November 27, 1990, proceeding at which defendant entered his plea reflects that
the district attorney orally advised defendant as follows: “Also I have to advise you if you are not a
citizen of the United States your plea could cause you to be deported, denied
re-entry, or the right to become a naturalized citizen.†In response to the oral immigration
advisement, defendant stated, “I am. I
have a green card.†After taking
defendant’s plea, the trial court made the following findings. “This Court finds that the defendant freely
and voluntarily, and with knowledge of the consequence, enters a guilty plea to
a violation of section 11352[A] of the Health and Safety Code, [and] that this
plea is knowingly and understandingly entered.â€
On August 7, 2012, defendant filed
his motion to vacate pursuant to section 1016.5. The motion was supported by defendant’s
declaration and several documentary exhibits.
In his declaration, defendant asserted, inter alia, that “[w]hen [he]
entered [his] plea, [
was not advised by [his trial]
immigration consequences of [his]
plea.
[He] did not know [his] plea could result in deportation, exclusion from
admission, and inability to become a naturalized citizen. [¶] Consequently,
[defendant] was surprised and distressed when [his immigration] attorney
informed [him] that there would be detrimental immigration consequences. [Defendant] had a consultation with
immigration attorney, Enrique Arevalo, who informed him that because of the
nature of [his] conviction, [he] would not be able to ever adjust [his]
immigration status or become a United States citizen. [¶] If
[defendant] had known of these dire consequences, [he] would never have accepted
the plea. Instead, [he] would have
consulted [his trial] attorney about the consequences and exercised [his] right
to a jury trial or negotiated a plea without adverse immigration
consequences.†Defendant further
explained that “[he did] not recall ever
receiving any sort of advisement regarding the immigration consequences that
would result from [his]
If [he] had known of such consequences, [he] would not have accepted
[the] plea [bargain]. Thus, [he] did not
knowingly and intelligently enter [his] plea.â€
(Italics added.)
At the hearing on defendant’s
motion to vacate, the prosecution argued that the immigration advisement
language in the minute order reflecting defendant’s plea was substantially
similar to the language required under section 1016.5, subdivision (a) and
therefore demonstrated that defendant had been advised of the immigration
consequences of his plea.
name="_ftnref2" title="">[2] Defendant’s counsel responded by contending
that the advisement language in the minute order was inadequate and did not
comply with the mandatory immigration advisements contained in that section. The trial court disagreed with defendant’s
counsel and denied the motion to vacate, thereby impliedly finding that the
immigration advisement language in the minute order was sufficient to satisfy
the requirements of section 1016.5, subdivision (a). Defendant timely appealed from the order
denying his motion to vacate.
Following briefing, we
obtained the reporter’s transcript from
the file in defendant’s appeal from the trial court’s order revoking his
probation—which transcript included the November 27, 1990, transcript of
defendant’s plea—advised the parties that we were taking judicial notice of
that transcript, and requested letter briefs from the parties as to the effect,
if any, of that transcript on the disposition of this appeal. Thereafter, we also advised the parties of
their right to object to the propriety of taking judicial notice of the
November 27, 1990, reporter’s transcript.
In response to our letters, defendant objected to the propriety of our
taking judicial notice of the transcript, and each party filed letter briefs
addressing the effect of that transcript on this appeal, which objection and
letter briefs we have reviewed and considered.
As to
defendant’s objection to the propriety of this court taking judicial notice of
the November 27, 1990, reporter’s transcript because it was not before the
trial court on his motion to vacate, we reject that objection. “Evidence Code section 452 states in
pertinent part: ‘Judicial notice may be taken of the following matters . . . (d)
Records of . . . (2) any court of record of the United States.’
459, subdivision (a), permits but does not require a reviewing court to take judicial notice of matters specified
in Evidence Code section 452. Although judicial notice is thus permissible in
this case, several courts have cautioned against judicially noticing matters
that were not before the trial court. ‘[A]s a general rule the [appellate] court
should not take . . . [judicial] notice
if, upon examination of the entire record, it appears that the matter has not
been presented to and considered by the trial court in the first
instance.’ (People v. Preslie
(1977) 70 Cal.App.3d 486, 493 [138 Cal.Rptr. 828]; People v. Meza (1984)
162 Cal.App.3d 25, 33 [208 Cal.Rptr. 576] [following Preslie]; DeYoung
v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 863 [206 Cal.Rptr.
28] [same]; People v. Hamilton (1986) 191 Cal.App.3d Supp. 13, 21-22
[236 Cal.Rptr. 894] [following Preslie].) Such a rule prevents the unfairness that
would flow from permitting one side to press an issue or theory on appeal that was not raised below. (Hamilton, supra, at p. Supp.
22.) [¶] . . [¶] [However,] Evidence Code section 459,
subdivision (d), provides certain procedural safeguards when a reviewing court
takes judicial notice. (Footnote
omitted.) By providing for special rules
for situations in which a party seeks judicial notice of information ‘not
received in open court or not included in the record of the action’ (Evid.
Code, § 459, subd. (d)), the Evidence Code clearly contemplates that, at least
in some situations, a reviewing court will grant judicial notice even when the
information was not presented to the trial court. (See People v. Belcher (1974) 11
Cal.3d 91, 94, fn. 2 [113 Cal.Rptr. 1, 520 P.2d 385] [granting judicial notice
of matters not made part of the record at trial].)†(People
v. Hardy (1992) 2 Cal.4th 86, 134.)
In the
instant case, we deem it appropriate to take judicial notice of the
transcript. It is from the appellate
record in an earlier appeal in the same
case. Moreover, it is the transcript
of the proceeding which is the subject of
this appeal, i.e., the transcript of the proceeding during which defendant
initially claimed he was not given the required immigration advisement. Because the transcript is directly relevant
to the dispositive issue on this appeal—whether defendant was adequately
advised of the immigration consequences of his plea—and because we perceive
considering the true facts relating to the subject immigration advisement, we
take judicial notice of the transcript.
DISCUSSION
of Review
A trial court’s ruling on a motion
to vacate a plea under section 1016.5 is governed by an abuse of discretion
v. Superior Court (
will withstand appellate review unless the record shows a clear abuse of
discretion. ([Zamudio, supra], 23 Cal.4th [at p.] 192 [96 Cal.Rptr.2d 463, 999
P.2d 686], citing People v. Shaw
(1998) 64 Cal.App.4th 492, 495-496 [74 Cal.Rptr.2d 915]; see also § 1016.5,
subd. (c).) An exercise of a court’s
discretion in an arbitrary, capricious, or patently absurd manner that results
in a manifest miscarriage of justice constitutes an abuse of discretion. (Shaw,
supra, at p. 496.)†(
1514, 1517-1518.)
B. Legal Principles
In
Court summarized the requirements of section 1016.5.
whenever, ‘after January 1, 1978, the court fails to advise the defendant as
required’ and ‘the defendant shows that conviction of the offense . . . may
have the consequences’ specified therein.
(§ 1016.5, subd. (b).) In such
circumstances, section 1016.5 provides that, ‘on defendant’s motion,’ the court
‘shall vacate the judgment and permit the defendant to withdraw the plea of
guilty or nolo contendere, and enter a plea of not guilty.’ (Id.,
subd. (b).) [¶] Section 1016.5 contains an express statement
of the legislative intent underlying the statute. (§ 1016.5, subd. (d).) The Legislature was concerned about the ‘many
instances involving an individual who is not a citizen of the United States
charged with an offense punishable as a crime’ in which ‘a plea of guilty or
nolo contendere is entered without the defendant knowing that a conviction of
such offense is grounds for deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the United
States.’ (Ibid.) ‘Therefore,’ the
Legislature declared, section 1016.5 was enacted ‘to promote fairness to such
accused individuals by requiring in such cases that acceptance of a guilty plea
or plea of nolo contendere be preceded by an appropriate warning of the special
consequences for such a defendant which may result from the plea.’ (Id.,
subd. (d).) (Footnote omitted.) Partly on the basis of section 1016.5,
subdivision (d), some Courts of Appeal have expressly or impliedly engrafted
onto section 1016.5 prejudice or diligence requirements—most commonly that the
defendant was, in fact, ignorant of potential adverse immigration consequences,
or that he would not have pleaded guilty had proper advisements been
given. (See, e.g., People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617-1622 [44
Cal.Rptr.2d 666]; People v. Murillo
(1995) 39 Cal.App.4th 1298, 1305 [46 Cal.Rptr.2d 403]; People v. Aguilera (1984) 162 Cal.App.3d 128, 130-132 [208
Cal.Rptr. 418].)†(Zamudio, supra, 23 Cal.4th at pp. 193-194.)
Section
1016.5 requires advisements as to three distinct immigration
consequences—deportation, exclusion from admission, and denial of
naturalization. The consequence which
defendant claims to have suffered is denial of naturalization.
As noted,
the record of the oral proceedings on
the entry of the plea was not available to the trial court at the hearing on
the motion to vacate. As also noted,
however, the reporter’s transcript for that proceeding on the plea is now part
of the record on appeal. Contrary to
defendant’s assertion that he did not receive an immigration advisement, it
appears that defendant was adequately advised about the immigration
consequences of his plea. Therefore, his
motion to vacate had no merit from the outset.
For the
first time on appeal, defendant argues in his letter brief that the transcript
of the November 27, 1990, proceeding at which he pleaded nolo contendere raises
a factual issue as to whether he understood that the oral advisement applied to
him and, therefore, whether he knowingly and voluntarily entered his plea. He bases this argument on his response to the
oral immigration advisement in which he informed the trial court that he was a
citizen and that he had a green card.
According to defendant, his response shows that he misunderstood the
legal significance of a green card and, based on that misunderstanding, considered
himself a citizen to whom the immigration advisement did not apply.
Because defendant did not raise
this issue in the trial court, and instead argued only that he was not advised
of the immigration consequences of his plea, we do not reach this newly raised
factual issue on this appeal. (See
598, 603 [“issues not raised in the trial court cannot be raised for the first
time on appealâ€].) We cannot resolve a
factual issue on appeal that must be raised in the first instance in the trial
court.
DISPOSITION
The order
denying the motion to vacate is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
MOSK,
J.
I concur
KUMAR,
J.
Turner,
P.J., Concurring
I concur in the judgment.
First, I
would judicially notice the entire record in the prior appeal of defendant,
Gilberto Cisneros, in this case. (
1993) [nonpub.opn.].) I believe that
should occur after providing notice to the parties as required by Evidence Code
sections 455, subdivision (a) and 459, subdivision (c) and an opportunity to
object. What has happened previously in
this case is relevant.
Second, in
my view, Judge Barbara R. Johnson denied defendant’s motion on delay and
reasonable probability of a different result grounds. Her implied findings in this regard were
reasonable and must be upheld. (
Cal.App.4th 169, 176; People v. Avila (1994)
24 Cal.App.4th 1455, 1460; People v.
Goodner (1990) 226 Cal.App.3d 609, 619.)
Thus, the uncontroverted documentary evidence is defendant was advised
twice prior to pleading no contest of the immigration consequences of his
plea. He was advised at his arraignment
and at the time of his plea. This is a
third basis for affirming Judge Johnson’s order. Those implied findings render moot
defendant’s new contention he do not knowingly and intelligently waive his
rights.
Third, it
is now clear defendant filed a misleading declaration concerning the advisement
of rights. Defendant’s July 12, 2012
declaration cleverly states no advice concerning immigration consequences was
given by defense counsel or the court when the plea was entered. As far as it goes, defendant is correct in
terms of what is set forth in the reporter’s transcript. What defendant’s misleading declaration omits
is the deputy district attorney is the one who provided the advice concerning
immigration consequences. And, as noted,
defendant fails to relate he was advised of the immigration consequences when
he was arraigned of October 18, 1990.
This
pattern of deceit is consistent with defendant’s conduct when he arrested on
the bench warrant issued December 20, 1991.
After remaining at large until November 2, 1992, he appeared in court
and had his attorney, Maureen Austin, claim he was not the person named in the
arrest warrant. A fingerprint check
revealed defendant was lying.
TURNER,
P.J.
defendant’s plea, the trial court found that defendant had violated the terms
of his probation and sentenced him to prison.
Defendant then appealed from the trial court’s order revoking his
probation.
oral proceeding on defendant’s plea had been destroyed, the reporter’s
transcript for that proceeding was not available at the hearing on defendant’s
motion to vacate.
