P. v. Reel

Filed 7/19/07 P. v. Reel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In 1980, pursuant to a plea bargain, Reggie Leon Reel pled no contest to one count of transportation or sale of marijuana (Health & Saf. Code,  11360, subd. (a)). He was granted probation. In 2006, Reel moved to set aside the plea pursuant to Penal Code section 1016.5, on the ground that at the time of his plea the trial court failed to advise him it could result in the denial of naturalization.^[1] The trial court denied the motion. We affirm.

FACTS

In September and October of 1979, Reel sold marijuana and methamphetamine to a woman who was assisting the Ventura police. On January 1, 1980, Reel was charged with the transport or sale of marijuana and methamphetamine.

On May 29, 1980, pursuant to a plea bargain, Reel pled no contest to one count of transport or sale of marijuana. The court dismissed the count alleging sale or transport of methamphetamine, and Reel was placed on probation. On the felony plea agreement form Reel initialed and signed he acknowledged that his plea could result in deportation.

On August 26, 2005, Reel filed a petition for writ of coram nobis to withdraw his plea and vacate the judgment. The trial court denied the petition.

On April 18, 2006, Reel filed the instant motion to withdraw his plea pursuant to section 1016.5. The basis for the motion was that the trial court failed to advise him that his conviction could prevent him from becoming a naturalized United States citizen.

In support of his motion, Reel declared that he was born in Egypt and lived in Israel since he was three years old. He moved to the United States in 1976. In 1980, he was unaware that his conviction could bar him from reentering the United States or from becoming a citizen. He served in the Israeli army in 1972 and 1973. Almost everyone in his company was killed in combat. At the time of his plea, he never would have agreed to go back to Israel because he most certainly would have been conscripted back into the army. In 1980, he was engaged to be married to Susie Sweet, a United States citizen. He believed his marriage to Sweet would cure any risk of deportation. At the time of his plea, his attorney advised him his conviction could be expunged and not be used against him for immigration purposes. He would not have entered his plea, had he known he would never be allowed to return to the United States or become a citizen.

Reel's attorney at the time of the plea declared that he does not recall the specific advice he gave Reel in 1980, but that he "may have" advised Reel prior to the plea that an expungement would prevent the conviction from being used against him for immigration purposes.

The prosecution opposed Reel's motion on the ground that the motion was untimely. The prosecutor argued Reel was aware of the immigration consequences at the time of his plea or shortly thereafter. The prosecution included a letter dated June 13, 1983, from Reel to his probation officer. The letter requests that his probation be terminated because his family is planning a trip overseas, and the department of immigration is awaiting the outcome of his probation before proceeding with his case. No reporter's transcript for Reel's 1980 plea is available.

The trial court stated that in the absence of a reporter's transcript it must presume Reel was not advised his conviction could bar naturalization. The court found, however, that Reel lacked diligence in bringing his motion. It pointed out that Reel's 1983 letter to his probation officer showed the immigration consequences of his plea were important to him. The court stated Reel has a responsibility to inform himself and make a timely motion. The court found the prosecution was prejudicial by the delay of 26 years.

DISCUSSION

Section 1016.5, subdivision (a), requires the court to give a defendant prior to acceptance of a plea of guilty or no contest the following advice on the record: "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." Subdivision (b) requires the court to permit the defendant on the defendant's motion to withdraw his plea if no such advice is given. Absent a record of the advisement, the defendant shall be presumed not to have received it. (Ibid.)

Section 1018 requires that a motion to withdraw or vacate a plea must be made before judgment or within six months after an order granting probation if entry of judgment is suspended.

A defendant may make a motion to withdraw a plea pursuant to section 1016.5 after the period specified in section 1018, if he exercises due diligence in bringing the motion. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617-1618; People v. Superior Court (Zamudio)(2000) 23 Cal.4th 183, 199-200.) There is some disagreement over who has the burden of showing reasonable diligence. (See People v. Totari (2003) 111 Cal.App.4th 1202, 1207-1208 [defendant bears burden where a considerable amount of time has elapsed]; but see People v. Carty (2003) 110 Cal.App.4th 1518, 1529 [burden on prosecution where record is silent on defendant's knowledge of immigration consequences].) Even if the burden is on the prosecution to show due diligence, the prosecution has carried that burden here.

Reel was advised at the time of his plea in 1980 that the consequences of his plea might include deportation. His immigration status was obviously important to him from the beginning. He admits that when he pled he feared he might be returned to Israel and conscripted into the Israeli army. His letter to his probation officer shows that he knew his conviction was a concern to immigration authorities at least as early as 1983. The very fact that Reel was involved with immigration authorities as early as 1983 is telling. It is simply impossible to believe that Reel was not aware long before his motion in 2006, that his plea may result in the denial of naturalization application. Twenty-six years is too long a period in which to maintain a credible claim of ignorance.

In any event, the defendant has the burden of showing he was prejudiced by the failure to advise. (People v. Totari (2002) 28 Cal.4th 876, 884.) This requires the defendant to show it is reasonably probable he would not have pled guilty or no contest had he been property advised. (Ibid.) Here Reel escaped a possible prison term by pleading no contest. Moreover, he pled no contest despite a warning that his plea could result in deportation. The trial court was not required to accept as credible Reel's assertion that he would not have pled no contest had he known his plea would bar naturalization. Reel failed to carry his burden of showing prejudice.

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Anthony Pullara for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.

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