People v. Totari

• Decision Date: 08 August 2002
• Docket Number: No. S091459.,S091459.
• Citation: 28 Cal.4th 876,50 P.3d 781,123 Cal.Rptr.2d 76
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Zuheir Anis TOTARI, Defendant and Appellant.

123 Cal.Rptr.2d 76

28 Cal.4th 876

50 P.3d 781

The PEOPLE, Plaintiff and Respondent, v. Zuheir Anis TOTARI, Defendant and Appellant.

No. S091459.

Supreme Court of California.

August 8, 2002.

Norton Tooby, under appointment by the Supreme Court, Oakland, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman, Violet M. Lee and Sharon G. Birenbaum, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Penal Code section 1016.5¹ requires that, before accepting a plea of guilty or nolo contendere to any criminal offense, the trial court must advise the defendant that if he or she is not a United States citizen, conviction of the offense may result in deportation, exclusion from admission to the United States, or denial of naturalization. The statute allows the defendant to move to vacate the judgment if the trial court fails to give the required advisements. In People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 203-204, 96 Cal.Rptr.2d 463, 999 P.2d 686 (Zamudio), we recognized that a motion to vacate a judgment under section 1016.5 may be brought in the trial court after judgment has been imposed. In this case, defendant unsuccessfully moved to vacate the judgment against him 13 years after it was imposed. The narrow issue before us is whether the trial court's denial of defendant's statutory motion to vacate the judgment is an appealable order. As explained below, we conclude that defendant may appeal from the trial court's denial of his section 1016.5 motion to vacate.

BACKGROUND

Defendant is an Israeli citizen and immigrated to the United States in 1976. On May 28,1985, in Santa Clara County Superior Court case No. 100337, defendant was convicted of possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)) based on a guilty plea. On that same date, in Santa Clara County Superior Court case No. 100338, defendant also pleaded guilty and was convicted of check fraud (Pen.Code, § 476a, subd. (a)) and possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)). On July 18, 1985, in both cases, the trial court placed defendant on probation for three years.

On October 26, 1987, in both cases, the trial court granted defendant's requests for early termination of probation and limited expungement of record, pursuant to sections 1203.3 and 1203.4.

On August 10, 1998, defendant moved to vacate his 1985 convictions on several grounds, including an allegation that the trial court failed to inform him adequately of the potential immigration consequences of his plea, in violation of section 1016.5. In support of his motion, defendant submitted his own declaration and one by his wife. Defendant declared that, as a result of his criminal convictions, he had been deported by the Immigration and Naturalization Service (INS) on March 27, 1998, and that he was awaiting a decision from the INS to readmit him to the United States to rejoin his wife and three children. His wife declared that, "On October 26, 1987, we obtained an expungement of [these] conviction[s] under Penal Code § 1203.4, and believed that this order had eliminated any adverse immigration consequences of the conviction." Defendant documented that the reporter's transcript and court reporter's notes of the guilty plea hearing had been destroyed, as authorized under Government Code section 68152.

The prosecutor opposed the motion to vacate and argued, among other things, that defendant's section 1016.5 motion to vacate was not the appropriate motion because it could only be made before judgment is imposed. He further argued that, even if a section 1016.5 motion may be made postjudgment, the 13-year delay between defendant's pleas and his motions to vacate was unreasonable. Defendant knew, before the sentencing hearing in 1985, that an immigration hold had been placed on him by the INS as a result of the convictions. The probation reports, that had been prepared before sentencing on the 1985 convictions, reflected that a hold had been placed on defendant and that immigration officials represented that deportation proceedings would begin after completion of any period of incarceration served by defendant. In support of the motion to vacate, defendant denied that he knew he could be deported; he believed that the expungement of his record, under section 1203.4, protected him from deportation.

On September 15, 1998, the superior court denied defendant's motion to vacate, stating: "I'm concerned with the 13-year delay between time of plea or approximately 13 years and then a motion to vacate the judgment. And it's not your fault, counsel, obviously. But it is the responsibility of the defendant to exercise due diligence in bringing a motion of this type. So the motion to vacate will be denied."

After obtaining a certificate of probable cause (§ 1237.5), defendant purported to appeal the trial court's denial of his motion to vacate, pursuant to section 1237, subdivision (b). The Court of Appeal held that the trial court's denial order was a nonappealable order and dismissed the appeal. We granted defendant's petition for review to determine whether a trial court's denial of a postjudgment motion to vacate, pursuant to section 1016.5, is an appealable order.

DISCUSSION

Section 1016.5, subdivision (a), requires that: "Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:

"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."

The statute provides a remedy, in the form of a motion to vacate, for a trial court's failure to give the required admonishments: "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." (§ 1016.5, subd. (b).)

In Zamudio, the defendant moved to vacate a criminal judgment based on a no contest plea that he had made six years earlier. The trial court granted the defendant's section 1016.5 motion and the Court of Appeal denied the People's petition for writ relief. We determined that the trial court did not err in failing to deny the defendant's section 1016.5 motion on timeliness grounds because there was no evidence he delayed unreasonably in moving to vacate the judgment. We held that a defendant's failure to object to omitted or incomplete advisements of immigration consequences, at or before sentencing, does not necessarily waive the alleged error. (Zamudio, supra, 23 Cal.4th at p. 203, 96 Cal.Rptr.2d 463, 999 P.2d 686.) Our conclusion was consistent with the plain language of section 1016.5, which contains no provision indicating when a defendant must make a motion to vacate. (Zamudio, supra, at p. 204, 96 Cal.Rptr.2d 463, 999 P.2d 686.)

As noted, we must decide whether the trial court's denial of defendant's section 1016.5 motion to vacate, brought 13 years after imposition of judgment, can be appealed.² "`It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.'" (People v. Mazurette (2001) 24 Cal.4th 789, 792, 102 Cal. Rptr.2d 555, 14 P.3d 227.) Although section 1016.5 provides the remedy of a motion to vacate, it does not specifically authorize an appeal from the denial of such motion. However, section 1237 provides that a defendant may appeal from "a final judgment of conviction" (§ 1237, subd. (a)) or from "any order made after judgment, affecting the substantial rights of the party" (§ 1237, subd. (b)).

Although section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the "substantial rights" of the defendant, the right to appeal is limited by the qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. (People v. Thomas (1959) 52 Cal.2d 521, 527, 342 P.2d 889 (Thomas).) "In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limit[ ] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.] The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction, or whether such matters should have been but were not so presented." (Ibid.) In other words, "an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself." (People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981, 92 Cal.Rptr.2d 161 (Gallardo).)

Courts have made various exceptions to the above general rule of nonappealability, such as when the record on appeal would not have shown the error (see Gallardo, supra, 77...