P. v. Abdelfattah

Filed 6/25/07 P. v. Abdelfattah CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Mazen Mosiafa Abdelfattah appeals an order denying his motion to vacate his conviction for assault with a deadly weapon (Pen. Code,  245, subd. (a)(2))[1] following his guilty plea in 1995. In 2005 he filed a motion to vacate his conviction claiming that he had not been advised of the immigration consequences of his conviction when he pled guilty in 1995. We conclude that the trial court did not abuse its discretion by denying his motion. Abdelfattah signed a plea form which contained an advisement about the immigration consequences of his plea which he initialed. On that form he signed a statement under oath that he had discussed all the advisements on the form with his counsel. We affirm.

FACTS

A teacher walking with her students near a park heard gun shots and saw Albert Valencia running away. Three witnesses told police that they saw Abdelfattah fire multiple shots at Valencia and they positively identified him as the shooter in police photo lineups. The district attorney filed an information charging Abdelfattah with attempted premeditated murder and multiple counts of assault with a firearm.

Facing the potential for a life sentence if convicted, Abdelfattah entered into a plea agreement with the prosecutor. He signed a guilty plea form on December 6, 1995, specifying that he would be subject to a maximum nine-year prison term in exchange for pleading guilty to assault with a deadly weapon and admitting section 12022.5 enhancements.

On the guilty plea form which Abdelfattah signed, there is an advisement for nonresident immigrants. It states, "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.) Abdelfattah initialed the box next to that advisement.

The second page of that form contains a declaration which Abdelfattah signed. He stated, "I declare under penalty of perjury that I have read, understood, and personally initialed each item above and discussed them with my attorney . . . ." (Italics added.)

The guilty plea form also contains a certification signed by Abdelfattah's trial counsel stating, "I am attorney of record and I have explained each of the above rights to the defendant, and having explored the facts with him . . . I concur in his . . . decision to waive the above rights and to enter a plea of guilty. I further stipulate this document may be received by the court as evidence of defendant's intelligent waiver of these rights and that it shall be filed by the clerk as a permanent record of that waiver." (Italics added.)

There is no reporter's transcript of the December 6, 1995, hearing where Abdelfattah pled guilty. The minute order reflects that Abdelfattah appeared with his counsel; the court accepted his guilty plea and ordered his plea form to be filed. The court found that he had intelligently and voluntarily waived his legal rights. The court later sentenced Abdelfattah to an aggregate seven-year term, but suspended execution of sentence and placed him on probation.

Motion to Vacate Conviction

On March 24, 2005, Abdelfattah filed a "Motion to Vacate Conviction" under section 1016.5. In his attached declaration he stated, "I am currently appealing a Notice of Decision denying my application for temporary status pursuant to section 245A of the Immigration and Nationality Act." He also said, "I was never advised that a plea of guilty would cause me any immigration consequences." (Italics added.)

The trial court continued the hearing on the motion several times to allow Abdelfattah an opportunity to obtain evidence to corroborate his claims.

At a hearing on April 29, 2005, the court suggested that his counsel obtain a reporter's transcript of the proceedings involving his plea. At that hearing his counsel was also provided with court records relating to that guilty plea.

On June 9, 2006, Abdelfattah's counsel filed a "pre-hearing brief" acknowledging that he had received the guilty plea form. He said, "defendant concedesthe immigration advisement in the waiver form contains all components of an adequate warning of the immigration consequences for a noncitizen . . . pleading guilty to a felony offense . . . ." (Italics added.) But he raised a new ground for vacation of the conviction. He claimed there was no indication that Abdelfattah had "read and understood the contents of the form, and had discussed them with his attorney." He said he was unable to obtain a reporter's transcript of the proceedings involving the plea because the court reporter had retired and could not find her notes.

At the August 11, 2006, hearing on the motion to vacate Abdelfattah relied on the declaration which accompanied his motion. He did not testify or present any evidence. The trial court denied the motion finding that Abdelfattah did not meet his "burden of proof to set aside this plea."

DISCUSSION

I. TheMotion to Vacate

Abdelfattah contends the court erred by denying his motion to vacate his conviction under section 1016.5. We disagree.

Section 1016.5 requires that a defendant must be advised prior to pleading guilty that "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." (People v.Totari (2002) 28 Cal.4th 876, 881.)

"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." (People v. Totari, supra, 28 Cal.4th at p. 884.) "On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty . . . if properly advised." (Ibid.)

In his declaration in support of his motion Abdelfattah said that he was not advised about the immigration consequences of his plea. But the trial court found he did not meet his burden of proof and it rejected the assertions in his declaration. The trial court's ruling is supported by the record. Abdelfattah's guilty plea form has an immigration consequences advisement which contains all the warnings required by section 1016.5. (People v. Totari, supra, 28 Cal.4th at p. 881.) Moreover, his trial counsel conceded that the advisement on that form contained "all components of an adequate warning of immigration consequences . . . ."

In his motion Abdelfattah also claimed that there was nothing in the record showing that he had read the advisement on the form regarding immigration consequences or discussed it with counsel. But his claims are refuted by his initials on the immigration consequences advisement on the plea form, his declaration on that form and his trial counsel's certification.

II. Record of Advisements in Court and the Section 1016.5 Presumption

Abdelfattah contends there is no reporter's transcript and therefore no showing that prior to accepting his plea the court orally advised him about the immigration consequences. He claims that consequently under section 1016.5 it is presumed he was not properly advised and vacation of the conviction is mandatory. We disagree. Moreover, the minute order does not show that Abdelfattah was orally advised that his plea could affect his immigration status.

Subdivision (b) of section 1016.5 provides, in relevant part, "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." Appellate courts which have interpreted this section have concluded "there is no language in the statute requiring verbal advisements by the court." (People v. Ramirez (1999) 71 Cal.App.4th 519, 522.) "[A] validly executed waiver form is a proper substitute for verbal admonishment by the trial court." (Id., at p. 521; see also People v. Panizzon (1996) 13 Cal.4th 68, 83 [courts may rely on defendant's executed waiver form].) Here Abdelfattah's plea form, with his initials on the immigration advisement, his declaration on the form and his counsel's certification constituted a trial court record showing that he received the proper immigration advisements. (People v. Dubon (2001) 90 Cal.App.4th 944, 953-955; Ramirez, supra, at p. 521.)

Abdelfattah claims the record is not complete without a reporter's transcript to document what the trial judge did in accepting the plea and that omission requires a reversal because of the presumption mentioned in section 1016.5. We disagree. Where there is no reporter's transcript a defendant may utilize a settled statement. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1423.) Abdelfattah did not do this even though there was a 16-month period between the filing of his motion and the hearing. Nor did he present evidence at the hearing to produce a more complete record. "Having failed to obtain a more complete record . . .  defendant must rely on the record at hand . . . ." (Id., at p. 1425.)

Moreover, even if the presumption in section 1016.5 is triggered by the absence of a reporter's transcript the result does not change. "The Legislature did not specify that the presumption created by Penal Code section 1016.5 is conclusive, thus, the presumption is rebuttable . . . ." (People v. Dubon (2001) 90 Cal.App.4th 944, 952.) It may be overcome by other evidence including court minutes and plea advisement forms which document that the defendant was "told of the immigration consequences." (Id., at p. 955; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175; People v. Ramirez, supra, 71 Cal.App.4th at p. 521; People v. Panizzon, supra, 13 Cal.4th at p. 83.) It is true the minutes do not show a mark in the box that Abdelfattah was advised of the consequences of his plea if not a citizen. But the minutes do show that the trial court accepted his plea, filed his plea form containing the proper immigration advisements and was satisfied that in pleading guilty he intelligently and voluntarily waived his rights. This evidence overcame the presumption of non-advisement. (People v. Gutierrez, supra, 106 Cal.App.4th at p. 175 [lack of proof of correct oral advisement of  1016.5 rights "cured by the written waiver of rights form" containing proper advisements].)

In addition, we have granted the Attorney General's request to take judicial notice of a reporter's transcript of Abdelfattah's sentencing hearing. There the trial court asked Abdelfattah's counsel, "I believe, if I'm correct, correct me if I am wrong, that we had previously accepted your plea and the court had made the necessary findings. The plea had been accepted." (Italics added.) His counsel responded, "that's correct, Your Honor."

III. Abdelfattah's Proof of Prejudice

Even if the advisement was improper, Abdelfattah must show that it was reasonably probable that he would not have pled guilty had he been properly advised. (People v. Totari, supra, 28 Cal.4th at p. 884.) He has not done so. He was charged with attempted premeditated murder and 12 counts of assault with a firearm. The prosecution's case against him on the charged offenses was strong. It had three eyewitnesses who positively identified him as the shooter. Abdelfattah could have faced a potential life sentence if convicted as charged. But his plea agreement was very beneficial for him. By pleading guilty to one count of assault, with section 12022.5 enhancements, his maximum sentence was limited to nine years with the potential that the court would grant probation. The court ultimately placed him on probation.

Here the trial court could reasonably infer that Abdelfattah elected to plead guilty to a less serious offense, despite the immigration consequences, to avoid the potential of a very long prison term. Abdelfattah has not shown how his choice would have been different given the severity of the charges, his knowledge of the immigration consequences as shown by his initials on his plea form and the benefits he received from the plea agreement. Moreover, the trial court found that Abdelfattah's conclusory declaration in support of his motion to vacate was inadequate and it implicitly decided that he was not credible. (People v. Gutierrez, supra, 106 Cal.App.4th at p. 176.) He neither introduced other evidence on this issue at the hearing nor did he meet the showing of prejudice required for a motion to vacate. (People v. Murillo (1995) 39 Cal.App.4th 1298, 1306; People v.Aguilera (1984) 162 Cal.App.3d 128, 132.)

The order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Michael L. Schuur, Temporary Judge*

Superior Court County of Los Angeles

______________________________

Peter D. De Bruyn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Linda C. Johnson , Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

* (Pursuant to Cal. Const., art. VI,  21.)