P. v. Arriaga 12/1/11 CA2/2

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2012 » P. v. Arriaga 12/1/11 CA2/2

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B225443

Case Date: 02/22/2012

Preview:Filed 12/1/11

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. VICTOR D. ARRIAGA, Defendant and Appellant.

B225443 (Los Angeles County Super. Ct. No. A537388)

APPEAL from an order of the Superior Court of Los Angeles County. Steven D. Blades, Judge. Affirmed.

Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General for Plaintiff and Respondent.

Defendant and appellant Victor Diaz Arriaga (defendant) appeals from an order denying his motion to vacate a judgment entered in 1986 upon a guilty plea. He contends that the trial court erred in finding that he was adequately advised of the potential immigration consequences of his guilty plea. Respondent contends that defendant was required to obtain a certificate of probable cause to bring this appeal, and as he did not do so, the appeal should be dismissed. We conclude that no certificate of probable cause was required, and upon reaching the merits of the appeal, we reject defendants contentions. Finding that the trial court did not abuse its discretion in denying the motion, we affirm the order. BACKGROUND On January 11, 2010, defendant filed a motion to vacate his 1986 conviction in Los Angeles Superior Court case No. A537388, in which he had pled guilty to a violation of Penal Code section 12020, subdivision (a)(8).1 In support of the motion, defendant submitted his declaration describing the circumstances of his conviction as well as facts regarding himself and his family.2 Defendant does "not recall being properly advised by the court of the immigration consequences that could result from this conviction when [he] entered [his] plea." He did not know that the plea could result in a permanent separation from his family and work. The preprinted minute order of the 1986 plea hearing states: "Defendant advised of possible effects of plea on any alien or citizenship/probation status." No reporters transcript was available, and the reporters notes had been destroyed. The prosecution presented the testimony of Los Angeles County Deputy District Attorney Harold W. Hofman, Jr. (Hofman), who was the calendar deputy assigned to taking pleas in July 1986 in the department where defendant entered his plea.
1 2

All further statutory references are to the Penal Code, unless otherwise indicated.

Defendant is a legal resident alien who has lived in the United States for 39 years. His two children, nine grandchildren, and other family members are United States citizens. Defendant is now disabled and lives with his son and daughter-in-law, providing day care for their children. 2

Hofman did not remember defendant, but testified that when taking pleas, it was his habit to inform the defendants of their rights and consequences of their pleas. Hofman, rather than the judge sitting in that department, would take the waivers himself 99.9 percent of the time. He testified that in addition to explaining the charges and the defendants constitutional rights, he "always" advised defendants of the immigration consequences of their pleas. He remembered the language he used, and recited it: "There are a number of consequences to your plea. One of those consequences is you may be deported from the country, that is, required to leave the country, after you are convicted of this offense. You may be denied readmission to the United States after you enter your plea. And if you apply for citizenship, that application may be denied." Defendant testified that he did not recall being made aware that his plea could result in deportation, exclusion, or denial of naturalization, but that if he had been, he would have rejected the plea. Defendant did not remember whether anyone explained the charges to him, and denied that anyone explained his constitutional rights. He subsequently applied for naturalization, but the application was denied due to his conviction, and he received a letter telling him to report to immigration court in April 2011 for deportation proceedings. The trial court denied defendants motion upon finding that the required advisements were given when defendant entered his plea, and that the language used by Hofman substantially complied with the language required by section 1016.5. Defendant filed a timely notice of appeal from the order denying his motion, but did not obtain a certificate of probable cause. DISCUSSION I. Requirements of section 1016.5 Prior to acceptance of a plea of guilty or nolo contendere, the trial court must give the defendant the following advisement 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." (

Download P. v. Arriaga 12/1/11 CA2/2.pdf