P. v. Gonzalez

Filed 3/15/07 P. v. Gonzalez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Fuentes Gerardo Gonzalez appeals from the trial courts denial of his motion to vacate judgment and allow withdrawal of a no contest plea pursuant to Penal Code section 1016.5 (hereafter section 1016.5). He argues the court abused its discretion in denying the motion. We affirm.

Background

On October 1, 1999, the Alameda County Narcotics Task Force executed a search warrant at appellants one bedroom apartment in Oakland. Officers found appellant sleeping in the bedroom and his two roommates, who became codefendants in the case, in the kitchen.^[1] Officers recovered one pound of methamphetamine underneath the bed where defendant was sleeping, two grams of methamphetamine and a large 30-pound capacity scale and packaging material in the living room, and indicia in the names of appellant and his codefendants inside the apartment.

On December 30, 1999, pursuant to a negotiated plea, appellant pleaded no contest to a violation of Health and Safety Code section 11378 (possession of controlled substance for sale) and it was agreed he would be placed on five years felony probation and serve up to nine months in county jail. Prior to changing his plea to no contest, the trial court judge informed appellant of his constitutional rights and verified that he understood he was giving up those rights. Specifically, the court stated: If you are not a citizen of the United States, a plea of no contest to a conviction for a violation of Section 11378 of the Health and Safety Code may result in your deportation, your refusal of admission or denial of naturalization; do you understand? Appellant replied, Yes, sir. The clerks minutes for the hearing list Sp Int^[2]as being present, but the reporters transcript does not reflect whether a Spanish interpreter was present or not.

On October 12, 2001, the Immigration and Naturalization Service issued an arrest warrant for appellant, stating he was subject to removal from the United States because of his conviction for possession for sale of methamphetamine. Appellant was served with the warrant on October 16, 2001.

On April 6, 2005, appellant filed a petition for writ of error coram nobis seeking to withdraw his plea. Pursuant to the courts request, the district attorney and appellant filed informal responses. In appellants response, he requested that the court treat his petition as a motion to vacate the judgment pursuant to section 1016.5,^[3]based on the courts alleged failure to properly advise him regarding the immigration consequences of his plea. The court treated the petition as a motion to vacate under section 1016.5, and denied the motion.

On December 16, 2005, appellant attempted to file an untimely notice of appeal. This court granted appellants motion to file a late notice of appeal, and the notice was ordered filed on March 1, 2006.

Discussion

To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement. [Citations.] On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. (People v. Totari (2002) 28 Cal.4th 876, 884.) Further, the term advisement in [section 1016.5,] subdivision (a) reasonably must be understood to mean not merely that the trial court recites the specified subdivision (a) language, but that the defendant understands that recitation (and the defendant is deemed to have understood the recitation if it was given in the defendants language). (People v. Carty (2003) 110 Cal.App.4th 1518, 1525-1526.) Finally, a defendant must prove reasonable diligence in bringing a motion to vacate his convictions under section 1016.5. (People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207.)

A trial courts ruling on a motion under section 1016.5 is reviewed for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) The appellate court adopts the trial courts factual findings if they are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

Here, the trial court denied appellants motion on three independent grounds. The court found that appellant (1) failed to exercise reasonable diligence in moving to vacate his conviction, (2) failed to demonstrate he was not properly advised of the immigration consequences as provided by statute, and (3) failed to show he was prejudiced. In finding appellant failed to show he was not properly advised of the immigration consequences, the court relied on the notation in the clerks minutes reflecting the presence of a Spanish interpreter.

Appellant argues that even though the trial court gave the required advisement regarding the immigration consequences of his plea in English, he was not properly advised of these consequences because he has a limited command of English and did not have a Spanish interpreter present. He supports his claim that no interpreter was present by noting that no mention is made of an interpreter in the reporters transcript. If the record is in conflict,  it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerks minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case.  (People v. Smith (1983) 33 Cal.3d 596, 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216.)

The clerks minutes list Sp Int as being present when appellant changed his plea to no contest. But, the reporters transcript from that hearing is silent as to whether an interpreter was present. Although appellant argues this demonstrates a conflict in the records, this is not necessarily so. The only persons named in the transcript are those who addressed the court, the defendant and both counsel. Nothing in the record suggests that the transcript would expressly note the presence of an interpreter who simply interpreted for the defendant and never addressed the court. Thus, the transcripts silence on the issue is not inconsistent with and should not be taken to refute the presumed accuracy of the clerks minutes. (See Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 112-115 [the clerks minute book presumptively contains only accurate, descriptive and nondiscretionary information].) In addition, though the minute order form contains some preprinted information, the notation regarding the presence of the Spanish interpreter is handwritten, buttressing the conclusion it is accurate.

Appellant also relies on the fact that the probation report noted that appellant requested an interpreter for the sentencing hearing and argues this request suggests he did not have an interpreter when he changed his plea. This seems entirely speculative, and the trial court could reasonably have given more weight to the clerks minutes that directly addressed the presence of the interpreter.

Finally, appellant relies on his own declaration asserting that an interpreter was not present when he changed his plea. However, the trial court was entitled to credit the clerks minutes over this declaration as well. We note that in his declaration appellant stated he has limited English skills, but the probation report categorized him as bilingual. Specifically, the probation report states that appellant graduated high school and attended college for two years in Mexico. He obtained permanent legal residency in Oakland in 1988. The probation report notes, [Appellant] is able to read and write in English. . . . [] . . . [] . . . He appears to be an articulate man who has advanced himself by enrolling in CETs office skills course, and obtaining employment as a data [entry clerk]. He is bilingual in Spanish and English. The trial court could have concluded the declaration was self-serving and this would have undermined appellants credibility regarding the absence of the interpreter.

It was reasonable for the court to rely on the clerks minutes to conclude an interpreter was present at the change-of-plea hearing, and appellant was provided with the information regarding the immigration consequences of his plea in Spanish. Because a defendant is deemed to have understood the recitation if it was given in the defendants language (People v. Carty, supra, 110 Cal.App.4th at pp. 1525-1526), the court did not abuse its discretion by denying appellants motion.

Disposition

The trial courts order denying appellants motion is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

MILLER, J.^*

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^[1] The codefendants are not parties to this appeal.

^[2] We assume this is an abbreviation of Spanish intrepreter.

^[3] Section 1016.5, subdivision (a) provides: Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

^* Judge of the San Francisco County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.