Perez v. Super.
Filed 9/5/13 Perez v. Super. Ct. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
JORGE
ARMANDO JUAREZ PEREZ,
Petitioner,
v.
THE SUPERIOR COURT
OF ORANGE COUNTY,
Respondent;
THE PEOPLE,
Real Party in
Interest.
G048401
(Super. Ct.
No. 12CF2471)
O P I N I O
N
Original proceedings;
petition for a writ of mandate to challenge an order of the Superior
Court of Orange
County, Daniel J. Didier,
Judge. (Retired judge of the Orange
Super. Ct. assigned by the Chief
Justice pursuant to art. VI § 6 of the Cal.
Const.)
Petition granted.
Monica V. Ramallo-Young , for Petitioner.
No appearance for
Respondent.
Kamala D. Harris,
Attorney General and Julie L. Garland, Assistant Attorney General, for Real
Party in Interest.
* * *
THE
COURT:
Citing Penal Code
section 1237.5
title="">[1]
the superior court denied the request by petitioner Jorge Armando Juarez Perez
for a certificate of probable cause.
Petitioner contends the request states
it was an abuse of discretion for the court to deny the request. The Attorney General has indicated it has no
objection to this court granting the relief requested in the instant petition.
petition.
In August 2012,
petitioner was charged in a felony complaint with one count of possession for
sale of a controlled substance and one count of possession of a firearm on
school grounds. Petitioner’s family was
concerned that petitioner’s legal issues would present immigration problems for
him based on his status as a permanent legal resident. They hired attorney Alex Perez to defend him
on his drug case based on Perez’s representations that he could handle
petitioner’s criminal matter and avoid petitioner’s deportation to Mexico.
Shortly thereafter,
Perez told petitioner that the People had offered him a plea deal and that if
he accepted the deal, he would be able to defend any immigration case brought
against him because the sentence he was being offered was less than one year. Perez further advised petitioner that if he
did not accept the deal, the immigration consequences could be much worse for
him. Perez never explained to petitioner
that by pleading guilty he would be deported, rendered ineligible for reentry
into the United States,
rendered permanently ineligible to return and precluded from
naturalization. Furthermore, if he
reentered illegally, he could face substantial time in federal prison.
Relying on Perez’s
advice, petitioner accepted the deal and pled guilty in November 2012. As a result of his guilty plea, the federal
immigration court ordered him removed from the United
States in January 2013.
Petitioner filed a
motion to withdraw his guilty plea on the basis that he was prejudiced by his
trial counsel’s failure to advise him of the immigration consequences of his
plea. As part of his motion to withdraw
his plea, he submitted a declaration from his immigration attorney, Mercedes
Castillo. In her declaration, Castillo
opined that petitioner’s trial counsel’s representation was below the objective
standards of reasonableness because if counsel had “researched the matter or
made a five-minute phone call to an immigration attorney or a criminal attorney
experienced in the immigration consequences of
that a final conviction of the charge [petitioner pled guilty to] would make
[petitioner] inadmissible for reentry to the United Sates, permanently
ineligible to return, and precluded from naturalization, and if he reentered
illegally, he would face 20 years in federal prison.â€
In sum, Castillo
concluded that Perez’s representation fell below the standard of reasonableness
because “(1) he [Perez] made no attempt to obtain a plea with less drastic
immigration consequences, and (2) he provided [petitioner] with misinformation
regarding the immigration consequences of his plea, thereby depriving
[petitioner] of his right to make an informed decision regarding the plea.†In
February 2013, the court summarily denied petitioner’s motion to withdraw his
plea. In March 2013, petitioner filed a
timely notice of appeal and request for certificate
of probable cause on the basis the trial court erroneously denied his
motion to withdraw his plea which was taken in violation of his right to
effective assistance of counsel.
In his certificate of
probable cause, petitioner advised that Perez was made aware that he was a
legal permanent resident of the United States and that he did not want to be
deported as a result of his legal matters.
This concern was of paramount importance to petitioner because he had
been living in the United States since he was a one-year-old child, his father
is a United States citizen and his mother is a lawful permanent resident. His three younger brothers were born in the
United States and are United States citizens.
All of his aunts and his uncles and their children live in the United
States. He has no close relatives or
friends left in Mexico. Moreover, he has
never returned to Mexico to visit since he was brought to the United States as
a one year-old child. And, while he
speaks Spanish, he has a minimal education and is not fully literate in the
Spanish language. He currently possesses
no skills which would allow him to support himself once in Mexico.
In March 2013, the
Appellate Division of the Orange County Superior Court notified petitioner that
his notice of appeal was received and filed, but the appeal was marked
inoperative because the court denied his certificate of probable cause.
Section 1237.5 states
that no appeal may be taken from a guilty plea without first filing a written
statement “showing reasonable constitutional, jurisdictional, or other grounds
going to the legality of the proceedings.â€
(§ 1237.5, subd. (a).) The
standard of review when the trial court denies a request for a certificate of
probable cause is abuse of discretion, and “the test . . . is whether the
appeal is clearly frivolous and vexatious or whether it involves an honest
difference of opinion.†(
fn. 4.) When reviewing a certificate of
probable cause, the court’s objective is to eliminate those appeals “having no
possible legal basis†by refusing to issue a certificate of probable
cause. (People v. Warburton (1970) 7 Cal.App.3d 815, 819.)
We conclude that based
on the facts set forth within, the petition demonstrates petitioner’s
entitlement to the issuance of a certificate of probable cause because the
appeal in this case is not “clearly frivolous and vexatious.†(People
v. Ribero, supra, 4 Cal.3d at p. 63, fn. 4.) Let a peremptory writ of mandate issue
ordering the superior court to vacate its order of March 13, 2013, denying
petitioner’s request for a certificate of probable cause, and to enter a new
and different order granting petitioner’s request for a certificate of probable
cause. The clerk of the superior court
is directed to accept the certificate of probable cause if presented within 30
days from the date of the finality of this opinion. Further proceedings, including preparation of
the record on appeal, are to be conducted according to the applicable rules of
court. In the interest of justice, this
opinion is final as to this court forthwith.
name="_ftn1" title="">* Before Moore, Acting P.J., Aronson, J., and
Thompson, J.
name="_ftn2" title="">
[1] All further references are to the Penal Code.
