P. v. Casas

Filed 10/17/06 P. v. Casas CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:^*

Luis Casas (appellant) appeals from the denial of his motion to vacate judgment pursuant to Penal Code section 1181, subdivision 9.^[1] We appointed counsel to represent appellant on this appeal.

After examination of the record, counsel filed an “Opening Brief“ which contained an acknowledgment that she had been unable to find any arguable issues.

On May 22, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.

On June 13, 2006, appellant filed an opening brief in which he contends: (1) the plea of guilty in his 1993 case should be vacated because the official court reporter’s notes were unavailable; (2) appellant’s counsel at his 1993 plea failed to appear on the final day of the plea for reasons unknown, and the court proceeded to accept appellant’s plea despite the absence of his legal counsel; (3) the court failed to comply with section 1016.5^[2] in that it did not advise him as required by law of the adverse immigration consequences of his guilty plea, and the lack of a record of the plea gives rise to the presumption appellant did not receive the advisement; (4) counsel at the taking of his plea were ineffective because they did not create additional documents regarding the specifics of his plea agreement and did not preserve the record; they convinced appellant to plead to a greater offense than the offense to which he had pleaded “not guilty” at the arraignment; and they misadvised him that he had a valid and binding “‘plea agreement with the Immigration and Naturalization Service (INS),’” disregarding appellant’s warnings on the consequences of his suffering a conviction; and (5) several international treaties argue against appellant’s deportation.

At the outset we note that on November 2, 2004, we affirmed the order that was the basis of appellant’s previous appeal.^[3] The procedural background of the prior plea shows that on January 22, 2003, appellant filed a petition “‘for Writ of Habeas Corpus or Writ of Error Coram Nobis or Audita Querela to Vacate the Judgment and withdraw Plea and Request for Evidentiary Hearing on Said Writs.’” In that petition, appellant did not claim a violation of section 1016.5, subdivision (a). Appellant’s counsel informed this court that she had filed a motion to request a ruling under that section, and the proceedings on that motion had been suspended pending the outcome of the appeal in case No. B166952. In his petition, appellant had claimed ineffective assistance of counsel because his retained counsel did not investigate or advise him of the immigration consequences of his plea or advocate for an alternate charge that would have precluded his eventual removal. Appellant claimed he did not become aware of the immigration consequences of his plea until he was taken into custody by the INS, and he asserted he was currently in the agency’s custody. The trial court denied appellant’s petition without a hearing and observed that there was no available transcript of the plea to review, since the reporter had passed away and her notes could not be located. The court found that the docket, however, showed that appellant was properly advised.^[4]

We affirmed the trial court’s denial of appellant’s petition without prejudice to the pursuit of appropriate proceedings in the superior court pursuant to section 1016.5.

The record shows that on January 21, 2005, and on August 16, 2005, motions by appellant to withdraw his guilty plea pursuant to sections 1203.3 and 1203.4^[5] were denied. On December 13, 2005, the court denied appellant’s motion for state-appointed counsel. At the same hearing, the court denied appellant’s motion to vacate the judgment pursuant to section 1181, subdivision 9, finding there was ample evidence in the file that appellant was properly advised, even though the transcripts of the taking of the plea were not available. The court found that where, as in appellant’s case, no prejudice was shown from the lack of stenographic notes of the proceeding the law did not require that the court set aside the judgment and order a new trial, citing In re Collins (1969) 271 Cal.App.2d 195.

With respect to the current appeal, we begin by observing that most of the issues appellant raises are not cognizable, since they were not part of the motion whose denial is the subject of this appeal. The motion from which appellant appeals was based on section 1181, subdivision 9 only and contained no mention of section 1016.5. There is no record before us of any motion filed pursuant to section 1016.5.

The granting of a motion for new trial lies in the discretion of the trial court, and its rule will not be disturbed on appeal absent an abuse of discretion. (People v. Williams (1988) 45 Cal.3d 1268, 1318.) We find no abuse of discretion in the trial court’s denial of appellant’s motion under section 1181, subdivision 9.

As in In re Collins, supra, 271 Cal.App.2d 195, cited by the trial court, appellant was not deprived of a transcript in an appeal from his conviction. The Collins court noted that “[w]hatever may be the rule on a direct appeal where through no fault of the defendant no transcript can be prepared [citation], this is not an appeal but two extremely late collateral attacks on the conviction. If we were to grant relief to Collins it would be tantamount to holding that whenever there has been a failure to comply with section 69955 of the Government Code, any defendant, whose conviction has long since become final, is automatically entitled to a new trial.”^[6] (Collins, supra, at p. 202) As stated in People v. Bills (1995) 38 Cal.App.4th 953, “[t]he loss, destruction, or absence of a portion of the reporter’s notes does not per se require a new trial. [Citation.] The burden is on the appellant to show that the omissions are ‘substantial‘ and ‘consequential’ [citations], and that the omissions prevent meaningful appellate review. [Citation.] The burden is on the appellant to show prejudicial error. [Citation.]” (People v. Bills, supra, at p. 959.)

In addition to omitting any mention of section 1016.5 in his motion under section 1181, subdivision 9, appellant described no prejudice. He merely asserted that “[u]nquestionably, a reviewing court has the statutory authority to set aside the judgment and order a new trial when the transcript notes have been lost or destroyed.” He then concluded the motion by requesting that the court grant the motion and vacate the judgment and sentence. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s motion.

We have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The order under review is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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^* BOREN, P. J., DOI TODD, J., ASHMANN-GERST, J.

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

Penal Code section 1181 provides in pertinent part: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: . . . 9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.”

^[2] Section 1016.5, subdivision (a), requires a trial court to advise the defendant, prior to accepting a plea of guilty or nolo contendere as follows: “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) of section 1016.5 provides, in pertinent part: “If, after January 1, 1978, 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.”

^[3] We take judicial notice of the opinion in appellant’s previous appeal, case No. B166952. (Evid. Code, § 452, subd. (d).)

^[4] In the opinion we noted that on January 26, 1993, the day of appellant’s plea, the minute order indicated that appellant was “‘advised of possible effects of plea on any alien/citizenship/probation/parole status.’”

^[5] Section 1203.3 governs the revocation, suspension, or modification of probation. Section 1203.4 describes the procedure whereby a probationer may withdraw his or her guilty plea after successful completion of probation.

^[6] Government Code section 69955, subdivision (e) requires preservation of reporters’ notes for 10 years in criminal proceedings, and destruction is carried out upon order of the court.