Filed 8/24/17 P. v. Martines CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed.

Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jaime Tranquilino Martines appeals from the trial court’s ruling denying his motion to vacate his 1999 conviction for possessing methamphetamine. Defendant moved to vacate the 16-year-old conviction on the ground he was not properly advised in Spanish of the potential immigration consequences of a guilty plea. We affirm, based on the change of plea form.

Statement of the Case

On March 30, 1999, the People filed a felony complaint charging then 19-year-old defendant with one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), one count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and one count of possessing drug paraphernalia (Health & Saf. Code, § 11364). Defendant was arraigned on April 19, 1999, and pled not guilty. The minute order for that hearing indicates defendant was “advised if not a citizen conviction may result in deportation, exclusion from admission to this country or denial of naturalization.” The minute order also indicates that a translator, Sarita Bensadoun, was present and sworn to interpret between Spanish and English for defendant.

On April 21, 1999, the minute order shows the same translator was sworn to interpret between Spanish and English for defendant. The defense made an oral motion asking for diversion, which the court granted. Defendant withdrew his not guilty plea and was re-arraigned. Defendant pled guilty to possessing methamphetamine, specifying that the charge would be dismissed upon successful completion of a drug treatment program. The court accepted the plea, with the police report providing the factual basis. The court found that defendant entered his plea knowingly, intelligently, and voluntarily.

Also on that date, defendant signed a change of plea form. He initialed the “consequences of plea” part of the form that read, in English: “If I am not a citizen of the United States, I understand that this conviction 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.” Defense counsel signed the “attorney statement” portion of the form, which included that “the defendant understands the consequences of his/her guilty plea.” The translator signed the “interpreter’s statement” portion of the form, which provided: “Having been duly sworn, I have truly translated this form to the defendant in the __________________ language. The defendant has stated that he/she fully understood the contents of the form prior to signing.” The translator did not fill in the blank portion of the statement with “Spanish,” as would be expected of a Spanish/English interpreter, and also left blank the space where she was supposed to print her name.

On July 27, 1999, the court terminated defendant’s diversion and resumed criminal proceedings. On June 14, 2000, the court entered judgment and placed defendant on felony probation for 36 months.

Nearly 16 years later, on February 1, 2016, defendant filed a motion to withdraw his guilty plea pursuant to Penal Code section 1016.5, on the ground he was not advised that his plea could carry immigration consequences. The reporter’s notes of the hearing were destroyed after 10 years, and so a transcript of the plea hearing was not available. In his accompanying declaration, defendant stated his current attorney showed him a copy of the change of plea form “but the whole thing with the form happened so fast that I do not believe that it was properly translated into Spanish for me, which is the only language that I understand, before I signed. The severe consequence of being unable to be admitted to the United States as a resident, I am sure I would have remembered had I been told about that. [¶] Had I known that a guilty plea in this case would inevitably result in exclusion and permanent banishment from this country, I never would have pled guilty but would instead I would have taken my case to trial or at a minimum I would have sought some other disposition that would not make me removable and permanently inadmissible to the United States.” The People filed its opposition on February 16, 2016. The hearing on the motion took place on March 7, 2016. Defendant’s counsel argued, “we don’t believe that it [the plea agreement] was properly translated for him into Spanish before he signed it.” The trial court reviewed defendant’s affidavit and told the defendant: “Well, in your affidavit, you say you can’t remember that one way or the other. You didn’t say it definitively.” The court denied the motion.

This appeal followed.

Discussion

Defendant argues the trial court erred when it denied his motion to withdraw his guilty plea because he established that he was not properly advised in Spanish of the potential immigration consequences of a guilty plea. We disagree.

Under Penal Code section 1016.5, a defendant can obtain relief if he or she “demonstrate[s] that (1) the court taking the plea failed to advise the defendant of the immigration consequences as provided by section 1016.5, (2) as a consequence of conviction, the defendant actually faces one or more of the statutorily specified immigration consequences, and (3) the defendant was prejudiced by the court’s failure to provide complete advisements.” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287, citing People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 (Zamudio) and People v. Totari (2002) 28 Cal.4th 876, 884.)

Penal Code section 1016.5, subdivision (a), requires the following admonishment be given to any defendant entering a guilty plea: “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.”

A trial court’s denial of a motion to vacate under section 1016.5 is reviewed for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192.) The court deciding whether the defendant has made a sufficient showing under section 1016.5 “is the trier of fact and . . . the judge of the credibility of the witnesses or affiants. Consequently, it must resolve conflicting factual questions and draw the resulting inferences. [Citation.]” (People v. Quesada (1991) 230 Cal.App.3d 525, 533 (Quesada), superseded by statute on other grounds as stated in People v. Totari, supra, 111 Cal.App.4th at pp. 1206-1207, fn. 5.)

“Before accepting a plea of guilty or no contest, a trial court is statutorily required to advise a defendant that if the defendant is not a citizen of this country, the plea could result in deportation, exclusion from the United States, or denial of naturalization. (Pen. Code, § 1016.5, subd. (a).)” (People v. Arriaga (2014) 58 Cal.4th 950, 955 (Arriaga).) It is not necessary, however, that the trial court advise the defendant orally; a written advisement, if understood by the defendant, is sufficient. (People v. Ramirez (1999) 71 Cal.App.4th 519, 523 (Ramirez); Quesada, supra, 230 Cal.App.3d at p. 536.) Nor is it necessary for the trial court, personally, to give the advisement. It may be given by counsel, the court reporter, or the clerk. As long as “some person acting on behalf of the tribunal” actually advises the defendant of the immigration consequences, the adviser’s identity is immaterial. (Quesada, at pp. 535-536.)

Here, the advisement required by section 1016.5 is included in the “consequences of plea” part of the plea form, as quoted ante. In addition, defendant’s trial counsel signed the attorney statement, including that “the defendant understands the consequences of his/her guilty plea.” Further, the English/Spanish interpreter signed the “interpreter’s statement” that stated under penalty of perjury that, “I have truly translated this form to the defendant in the ______________ language. The defendant has stated that he/she fully understood the contents of the form prior to signing.” Finally, although we lack the record transcript of the plea hearing, and the minute order of that day does not report that the court re-advised defendant of the immigration consequences specifically, the minute order does state that the “court finds plea knowingly, intelligently & voluntarily entered.”

Under the case law cited ante, we cannot conclude from this record that the trial court abused its discretion when it denied defendant’s motion to vacate, or that it based its ruling on less than substantial evidence. Absent a record transcript of the plea hearing, we must rely on the face of the plea agreement. Defendant argues that “nothing in the record showed that he ever received or was read the appropriate advisement in Spanish, his only language.” This is not true. We understand that the Spanish language interpreter merely placed her signature on the interpreter statement, without filling in the space provided for the language into which she translated the English plea form, and likewise without printing her name in the space provided for that. Defendant would have us believe that the interpreter’s neglect to fill in the blank with “Spanish” could possibly signify that the interpreter “refused to” state that she had interpreted the plea form from English to Spanish. Defendant’s alternate theory, as set forth in his reply brief, is that the translator translated the plea form from English into the “____________ language,” rather than into Spanish. This is a ridiculous argument. As the People point out, both the minute order and the plea form state the interpreter was sworn to translate between Spanish and English and she affirmed that she “truly translated” the form to defendant. The plea form, signed by defendant, his counsel, and the translator, is sufficient proof that defendant received the required advisement regarding immigration consequences.

Disposition

The court’s order denying the motion to vacate is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

FIELDS

J.