Filed 12/20/18 P. v. Singh CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge.

Law Offices of Anthony P. Capozzi and Anthony P. Capozzi for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2008, as part of a plea agreement, appellant Gurmit Singh pleaded no contest to charges of arranging a meeting with a minor for the purpose of engaging in lewd or lascivious behavior and attempted lewd act upon a child. Seven years later, after he fulfilled his sentence and probationary period and was subject to deportation, Singh moved to vacate the judgment and withdraw his plea, pursuant to Penal Code sections 1016.5, 1018, and 1203.4, arguing that at the time of the plea hearing he did not understand the trial court’s advisement of the plea’s possible immigration consequences.[1] The motion was denied, and Singh timely appealed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As Singh pleaded no contest in this matter, we draw our summary of the facts from the transcript of the preliminary hearing. On December 27, 2006, an undercover police officer was posing online as a 13-year-old girl when Singh contacted him. Singh’s conversation with the officer, whom he believed to be a 13-year-old girl, turned sexual and Singh arranged to meet the following day at a mini-market. The following day, when Singh drove into the mini-market parking lot, the officer detained him. Singh had condoms and “blue stamina pills” on him; a small amount of marijuana was found in his car.

A May 22, 2007, information charged Singh with arranging to meet a minor for the purpose of engaging in lewd or lascivious behavior, attempting a lewd act upon a child, and possession of marijuana. At the plea hearing March 6, 2008, Singh, represented by counsel, pleaded no contest to the two lewd conduct allegations in exchange for dismissal of the marijuana charge and probation. The record reflects that Singh was assisted by an “interpreter in the Punjabi language.”

Prior to the hearing, Singh initialed and signed a “FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM,” which included, in part, a section that read:

“I understand: [¶] … [¶]

“2. If I am not a citizen, my change of plea can result in deportation, exclusion from admission to the United States, and/or a denial of naturalization. Deportation may be mandatory for the above offenses. I have fully discussed this matter with my attorney and understand the serious immigration consequences of my plea.”

Singh further signed and dated the following statement: “I declare under PENALTY OF PERJURY, under the laws of the State of California, that I have read, understood, and initialed each item above, and everything on this form is true and correct.” Singh’s counsel signed and dated the section that read:

“I am the attorney of record for the defendant and have reviewed this form with my client. I have explained to the defendant each of his/her rights and answered all of the defendant’s questions with regard to this plea. I have discussed the facts of the case with the defendant, and explained the consequences of this plea, the elements of the offense(s), and the possible defense(s). I concur with this plea and the defendant’s decision to waive his/her constitutional rights.”

An interpreter also signed a statement on the plea form that stated, “I … have truly translated this form to the defendant in the Punjabi language. The defendant indicated that (s)he understood the contents of the form, and (s)he initialed the form.”

At the hearing, before accepting the plea, the trial court examined Singh at length. The trial court asked Singh if his initials and signature were on the plea and waiver of rights form and if he had been over the form with the assistance of his Punjabi language interpreter. Singh replied “Yes, sir,” to both questions. He also replied “Yes, sir” to the question of whether he understood all of his rights he was giving up and all the possible consequences of the plea as explained on the form. The trial court inquired whether any other promises or threats had been made to get him to enter his plea, to which Singh responded, “No, sir.” When asked if he had had enough time to discuss his case with counsel, he stated, “Yes, sir.” Singh also answered in the affirmative questions of whether he understood and gave up his right to a speedy public trial. The trial court specifically asked:

“If you are not a citizen, your plea could result in your being deported, excluded from the United States, or denied naturalization. Do you have any questions or concerns about that?”

Singh replied, “No, sir.” The trial court further advised him that he would be required to register as a sex offender and that one of the charges he was pleading to was a “strike prior” and could enhance a crime in the future. Singh stated he understood. When asked if Singh had any questions before the trial court accepted his plea, Singh replied “No, sir.”

On May 16, 2008, Singh was sentenced to probation for three years on the condition that he spend 60 days at the adult offender work program and 58 days in custody.

On June 24, 2008, the United States Department of Homeland Security began removal proceedings against Singh, a citizen of India. The proceedings were later terminated without prejudice because Singh’s no-contest plea conviction was on direct appeal. Singh later abandoned the appeal and it was dismissed.

Almost four years later, on May 1, 2012, Singh successfully moved to dismiss his conviction under section 1203.4.

Over three years later, on November 30, 2015, through different counsel, Singh filed motions to vacate the judgment, to dismiss, and to withdraw his plea under sections 1016.5, 1018, and 1203.4, alleging in part that he did not adequately understand that he was subject to deportation at the time of his plea.

On December 28, 2015, the trial court ruled on Singh’s motion to vacate the judgment without holding a hearing.[2] In a thorough written order denying the motion, the trial court explained:

“[Singh’s] motion rests primarily on the premise he was rushed through his change of plea and was not accurately advised of the possible immigration consequences which could result from his plea. Defendant further claims he was unable to fully understand the consequences of his plea due to linguistic problems. The change of plea form, initialed and signed by [Singh], defense counsel, the court certified interpreter in the Punjabi language, and the court, as well as the change of plea transcript demonstrate otherwise.”

The trial court found the requested relief pursuant to section 1203.4 moot, as it had already been granted. As for the requested relief pursuant to section 1016.5, the trial court denied the motion, again reiterating the details of the change of plea form, including the language of possible deportation; the fact that Singh was assisted by a court certified interpreter in the Punjabi language throughout the proceedings; that Singh was represented by counsel, who also attested he had explained the consequences of the plea to Singh; and finally, that the trial court also signed the change of plea form and specifically found Singh had entered the plea with an understanding of the consequences of the plea. The trial court noted that the transcript of the plea further demonstrated Singh was advised on the potential immigration consequences. The trial court denied Singh’s motion to vacate pursuant to section 1016.5, finding that the plea form and transcript together “establish a record [Singh] was advised of potential immigration consequences sufficient to satisfy the requirement of Penal Code section 1016.5,” and that he entered the plea “freely and voluntarily and with an understanding of the nature of the charge he was pleading to and the possible consequences that could result from his plea.”

The written order also denied the requested relief pursuant to section 1018 as untimely, and therefore stated it was treating Singh’s request for relief instead as a petition for writ of error coram nobis, which the trial court described as “generally used to bring factual errors or omissions to the court’s attention.” The trial court denied the motion, noting Singh’s only arguable ground for granting relief pursuant to a writ of error coram nobis was his inference that he was not competent to enter his plea—which in this case would require the court to “suspend logic and equate [Singh’s] inability to understand English to a finding of incompetence pursuant to Penal Code § 1368.”

This appeal followed.

DISCUSSION

As discussed above, Singh presented alternative forms of relief to the trial court. He presented a motion to vacate the judgment pursuant to section 1016.5, which is a statutory motion. The trial court also treated his statutory motion pursuant to section 1018 as a writ of error corum nobis, which seeks a common law remedy and is a nonstatutory motion to vacate the judgment. (People v. Carty (2003) 110 Cal.App.4th 1518, 1523, 1526; People v. Kim (2009) 45 Cal.4th 1078, 1096.) We address separately the statutory and nonstatutory bases for Singh’s motion and his claim of error.

1. SECTION 1016.5

Legal Principles

Section 1016.5, subdivision (a) requires trial courts to give an admonition regarding immigration consequences to defendants before accepting a guilty or nolo contendere plea. The court must advise: “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.” (§ 1016.5, subd. (a).) A defendant so warned may then wish to reconsider the proposed plea or engage in further negotiations. (People v. Martinez (2013) 57 Cal.4th 555, 562.)

The statute does not require the trial court to orally advise the defendant of the warning required by section 1016.5. Written admonition of the required information can suffice in the absence of an oral admonition. It is the information which must be given, not whether it is conveyed orally or in writing. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521–523; People v. Quesada (1991) 230 Cal.App.3d 525, 536.) Such information may also be given by counsel, as long as it is established that the defendant was properly informed of the immigration consequences prior to entering the plea. (Quesada, supra, at pp. 535–536.)

Where a defendant establishes he was not informed of the consequences or could not understand those consequences the defendant may seek to vacate the guilty plea. (People v. Martinez, supra, 57 Cal.4th at pp. 562–565.) In bringing a motion to vacate the plea under section 1016.5, the defendant has the burden to establish prejudice. He must show he would not have entered the guilty plea if he had been properly advised. (People v. Martinez, supra, at pp. 564, 567.)

We review the trial court’s ruling on a motion to vacate under section 1016.5 under the abuse of discretion standard. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192; People v. Arendtsz (2016) 247 Cal.App.4th 613, 617.)

Analysis

Singh’s principal argument on appeal is that, while he was advised of the immigration consequences of his plea, he did not understand those consequences and the trial court, in considering his motion, erred when it failed to hold an evidentiary hearing on that issue. As evidence of his failure to understand the immigration consequences, Singh points to a 2015 psychological report from Baljit Atwal, Ph.D., stating he had “limited English skills” and a “deficit in understanding English.”

While the trial court did not hold an evidentiary hearing or discuss Dr. Atwal’s post hoc evaluation in its ruling on Singh’s section 1016.5 motion, it is without doubt that Singh was fully informed of the immigration consequences in his criminal proceedings in 2008. As Singh acknowledges, he was advised both orally and in writing.

We turn then to the remaining issue of whether the record demonstrates that Singh understood the advisements given him at the time of his 2009 plea, which he asserts on appeal he did not. However, while Singh has shown English is not his native language and has difficulty understanding English, he was at all times during the proceedings in question assisted by a Punjabi interpreter. Each time Singh was asked if he understood, he stated he did. During the proceedings, Singh’s counsel never expressed any doubt concerning Singh’s comprehension.

In these circumstances, the trial court did not abuse its discretion in concluding Singh had not shown he did not understand the advisement provided him as required by section 1016.5.

2. CORUM NOBIS

Legal Principles

To prevail on a coram nobis petition, the petitioner must establish that: (1) some fact existed which, without his fault or negligence, was not presented to the trial court, and which would have prevented the rendition of the judgment; (2) the newly discovered evidence does not go to the merits of the issues of fact determined at trial; and (3) petitioner did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. (People v. Kim, supra, 45 Cal.4th at p. 1093; People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1146–1147.) The writ is “‘“not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment,”’” (Kim, supra, at p. 1092, italics omitted) such as a party’s death, infancy, or insanity, or that his plea was procured by means of fraud or threat of violence (id. at p. 1094). The grounds on which relief may be granted via a petition for writ of error coram nobis are narrower than on a petition for writ of habeas corpus; the purpose of a writ of error coram nobis “‘is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court’ [citation].” (Id. at p. 1091.)

Analysis

Here, the trial court properly denied Singh’s petition for writ of error coram nobis. As stated by the trial court in its written ruling, “The only arguable ground for granting relief pursuant to a writ of error coram nobis is [Singh’s] inference he was not competent to enter his plea,” as an incompetent person may not be convicted or punished. However, as noted by the trial court, “To reach that conclusion in this case would require the court to suspend logic and equate [Singh’s] inability to understand English to a finding of incompetence pursuant to Penal Code § 1368.” And while Singh was not explicitly claiming he was incompetent at the time he entered his plea, he was “making a similar argument” based on Dr. Atwal’s post hoc psychological evaluation done in 2015. The trial court considered this a “remarkable assertion” given the fact that Singh was at all times provided with and utilized a certified court interpreter in the Punjabi language. Dr. Atwal’s evaluation is based solely upon Singh’s lack of English language skills and makes no mention of the fact that the proceedings were conducted with the assistance of a certified Punjabi interpreter.

Even assuming Singh’s assertion was true, the trial court found Singh failed to establish due diligence in pursuing this remedy. There was nothing in the record to establish that Singh was diligent in pursuing the claim that in 2008 he lacked the intellectual ability of making a knowing, intelligent and voluntary waiver of his rights. As stated by the trial court, “There is nothing in the court’s file that occurred prior to the change of plea, or at the change of plea, which remotely suggests [Singh] lacked the competency, or intellectual ability to enter a knowing, intellectual and voluntary waiver of his rights.” All of the proceedings were translated into his primary language and “more importantly, this fact was known to [Singh] at the time of his change of plea, and thus cannot be the basis of a petition for writ of error corum nobis.” (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618–1619.)

The trial court noted that the only justification offered for Singh’s delay was his claim that he “‘reasonably believed’” his conviction had not affected his immigration status “‘in light of the termination of removal proceedings shortly after his conviction in 2008.’” However, the trial court took judicial notice of an order from an immigration judge dated July 28, 2008, terminating “removal proceedings” on Singh “without prejudice,” not because Singh’s conviction did not subject him to removal, but because it was not yet final while an appeal was pending. Singh later abandoned the appeal. The trial court was correct in finding that the writ of error corum nobis was not applicable, as it was not meant to correct errors of law or to redress irregularities that could have been timely corrected by motion for new trial, appeal or habeas corpus. (People v. Hayman (1956) 145 Cal.App.2d 620, 623.) Because Singh had other remedies, his claim was not a proper basis for a petition for writ of error corum nobis. (People v. Kim, supra, 45 Cal.4th at pp. 1093, 1099.)

In summary, the trial court found Singh’s declaration not credible, noting there was no factual support for Singh’s claim in his declaration that he was rushed or did not fully understand all of the possible consequences, including immigration consequences of his plea, or that his plea was impacted by his lack of ability to understand English. In addition, Singh waited until November of 2015 to file his motion to vacate his 2008 conviction based on statutory and nonstatutory grounds. The record fails to show due diligence.

DISPOSITION

The trial court’s order dated December 28, 2015, denying the statutory and nonstatutory motions to vacate the judgment and to withdraw his plea, is affirmed.

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FRANSON, J.

WE CONCUR:

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LEVY, Acting P.J.

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DESANTOS, J.