Filed 1/30/18 P. v. Torres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

John S. Dulcich, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Francisco Osmin Torres (appellant) contends the trial court abused its discretion in denying his motion to vacate his 1993 conviction as untimely because he was not advised of potential immigration consequences before entering his no contest plea, pursuant to Penal Code section 1016.5.[1] Considering appellant’s failure to justify the 24-year delay in filing his motion, we find no abuse of discretion.

FACTUAL AND PROCEDURAL SUMMARY

In September 1992, the Tulare County District Attorney charged then 17-year-old appellant with permitting another to shoot from a vehicle (§ 12034, subd. (b)), shooting from a motor vehicle (§ 12034, subd. (c)), assault with a firearm (§245, subd. (a)), and a firearm enhancement (§ 12022.5, subds. (a) & (d)). In November 1992, appellant entered into a negotiated plea agreement; he pled no contest to assault with a firearm and the firearm enhancement. Two counts of shooting from a vehicle were dismissed.

Just before entering plea, the trial court asked appellant: “Are you a citizen Mr. Torrez of this country?” Appellant responded, “Yes.” The trial court’s records include a change of plea form indicating appellant was advised and understood the maximum penalties, consequences of the plea, and possible defenses, but the clerk crossed out preprinted language on the form indicating appellant had been advised as to the consequences of “possible deportation if not a citizen of the United States.” It also does not appear appellant was so advised orally from the reporter’s transcript of the hearing.

Noting appellant had just been placed on probation 10 days prior to the offense, but that he was only 17 years old, the trial court committed appellant to the lower term of two years at the California Youth Authority[2] in January 1993.

In January 2017, appellant filed a motion to vacate the judgment pursuant to section 1016.5. The motion asserted appellant was never advised of his immigration consequences and that he was prejudiced because he would not have accepted the plea agreement had he been properly advised. Appellant repeated counsel’s claim in an attached declaration.

At a hearing in February 2017, appellant argued he was “concerned about immigration consequence,” but did not otherwise elaborate as to why he was currently raising the motion or whether he was undergoing deportation proceedings. The People opposed the motion as extremely untimely and prejudicial to the People. The trial court agreed with the People that “[t]oo much time has passed” and denied the motion as untimely.

DISCUSSION

Appellant contends that because the record lacks any evidence that the trial court advised him of the possible immigration consequences before entering his plea—and the court’s written minute order deliberately struck such preprinted language—it is clear he was not so advised and the trial court therefore abused its discretion in denying his motion to vacate the judgment.

Section 1016.5 provides, in relevant part:

“(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime 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.

“(b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If … the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement. [¶] … [¶]

“(d) The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, 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. Therefore, it is the intent of the Legislature in enacting this section 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.”

With respect to postjudgment motions to withdraw a plea under section 1016.5, the courts have required a showing essentially identical to preconviction motions under section 1018. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617 (Castaneda).) In such circumstances, “the court in which [the defendant] was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty.” (Ibid.) “Thus, the trial court may properly consider the defendant’s delay in making his application, and if ‘considerable time’ has elapsed between the guilty plea and the motion to withdraw the plea, the burden is on the defendant to explain and justify the delay.” (Id. at p. 1618.) Due diligence is necessary to avoid the obvious prejudice to the People that results if a case must proceed to trial after a long delay. (Ibid.)

To prevail on a motion to vacate under section 1016.5, a defendant must establish that he or she was prejudiced by the lack of advisement. (People v. Totari (2002) 28 Cal.4th 876, 884.) 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. (Ibid.)

“The decision to grant the motion to [vacate a judgment under section 1016.5] lies within the discretion of the trial court.” (Castaneda, supra, at p. 1617.) The appellate court in Castaneda found the trial court acted “well within the bounds of its discretion to deny relief” where the defendant offered no justification for seeking relief under section 1016.5 seven years after judgment. (Castaneda, supra, at p. 1618.)

Appellant here entered his plea in 1992 and was committed to the California Youth Authority in early 1993. He first raised the issue of not being advised of possible immigration consequences 25 years later in 2017. He never presented any justification to the trial court for the extensive delay, and he offers no demonstration of diligence to this court. Moreover, appellant represented to the court that he was a United States Citizen. Given the inherent prejudice to the People, appellant’s motion to withdraw his plea was not seasonably made and the trial court acted “well within the bounds of its discretion” in denying it as untimely.

Under the facts of this case, the superior court did not abuse its discretion in denying defendant’s section 1016.5 motion. (Castaneda, supra, at p. 1617.)

DISPOSITION

The order denying appellant’s section 1016.5 motion to vacate his conviction is affirmed.