People v. Arriaga

• Citation: 58 Cal.4th 950,320 P.3d 1141,169 Cal.Rptr.3d 678
• Decision Date: 07 April 2014
• Docket Number: No. S199339.,S199339.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Victor D. ARRIAGA, Defendant and Appellant.
• Court: California Supreme Court

58 Cal.4th 950

320 P.3d 1141

169 Cal.Rptr.3d 678

The PEOPLE, Plaintiff and Respondent,

v.Victor D. ARRIAGA, Defendant and Appellant.

No. S199339.

Supreme Court of California

April 7, 2014.

Joanna Rehm, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant.

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

KENNARD, J.^*

Before accepting a plea of guilty or no contest, a trial court is statutorily required to advise a defendant that if the defendant is not a citizen of this country, the plea could result in deportation, exclusion from the United States, or denial of naturalization. ( Pen.Code, § 1016.5, subd. (a) (hereafter section 1016.5(a) ); all further statutory references are to the Penal Code unless otherwise noted.) Here, defendant Victor D. Arriaga pled guilty to possessing a sawed-off shotgun. (Former § 12020, subd. (a)(8), repealed by Stats.2010, ch. 711, § 4, operative Jan. 1, 2012, and reenacted as § 33215.) Twenty-four years later, he challenged the conviction, asserting that he had not been given the required immigration advisements. The trial court's denial of defendant's motion to vacate his conviction was upheld on appeal. In reaching its conclusion, the Court of Appeal held, contrary to the Court of Appeal in People v. Placencia (2011) 194 Cal.App.4th 489, 122 Cal.Rptr.3d 922 (Placencia ), that a defendant is not required to obtain a certificate of probable cause before appealing a trial court's denial of a motion to vacate a conviction under section 1016.5.

Both the Attorney General and defendant successfully petitioned this court for review, each raising a different issue. Is a certificate of probable cause required to appeal a trial court's order denying a motion to vacate a conviction under section 1016.5, as the Attorney General contends? Our answer is "No." When, as here, proof of the required immigration advisements is not adequately shown in the record, must the prosecution prove by clear and convincing evidence that the advisements were given, as defendant contends? Our answer: The requisite standard of proof is preponderance of the evidence. We affirm the Court of Appeal's judgment.

I

Defendant, a native of Mexico, came to this country in 1970 and 10 years later became a lawful permanent resident. In 1986, he pled guilty to possessing a sawed-off shotgun (§ 33215), an offense that carries the collateral consequence of possible deportation for noncitizens under federal immigration law ( 8 U.S.C. § 1227(a)(2)(C) ). Some two decades after defendant's conviction, and after the federal government's denial of his citizenship application, federal authorities initiated deportation proceedings against him. Seeking to avoid deportation, defendant in 2010 filed a motion in the state trial court to vacate the 1986 conviction. At the 2010 hearing on the motion, he testified that he did not recall being told of the immigration consequences of conviction and that he would not have pled guilty had he known it could result in his deportation.

The reporter's transcript of defendant's 1986 plea hearing had been destroyed under Government Code section 69955's subdivision (e), which permits the destruction of "[r]eporting notes" for noncapital criminal proceedings after 10 years from the time the notes were taken. Available, however, was the minute order from the 1986 plea hearing. The minute order showed a checked box next to this statement: "Defendant advised of possible effects of plea on any alien or citizenship/probation or parole status." But the minute order was silent on advisement of the three possible immigration consequences resulting from a plea of guilty or no contest: deportation, exclusion from the United States, and denial of naturalization. At the 2010 hearing, the prosecution conceded that the limited record of the 1986 plea hearing gave rise to a rebuttable presumption, imposed by statute, that the requisite advisements were not given. ( § 1016.5, subd. (b) (hereafter section 1016.5(b) ) ["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."].)

To rebut the statutory presumption of nonadvisement, the prosecution presented the testimony of former Los Angeles County Deputy District Attorney Harold W. Hofman, who was the prosecutor at defendant's 1986 plea proceeding. Hofman testified that in plea matters he, rather than the trial judge, would advise defendants of the immigration consequences of pleading guilty or no contest. Although Hofman did not remember this particular defendant, he said he always gave this advisement: "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."

The trial court denied defendant's 2010 motion to vacate his 1986 conviction, ruling that the prosecution had proved, by a preponderance of the evidence, that defendant was told of the immigration consequences of his guilty plea. Defendant, without first seeking a certificate of probable cause from the trial court, challenged the trial court's denial order in the Court of Appeal.

In a two-to-one decision, the Court of Appeal rejected the Attorney General's contention that defendant's appeal should be dismissed for lack of a probable cause certificate. In the majority's view, such a certificate is not required to challenge a trial court's denial of a motion to vacate a conviction under section 1016.5. On that issue, the dissenting justice would have followed the contrary holding of the Court of Appeal in Placencia, supra, 194 Cal.App.4th 489, 122 Cal.Rptr.3d 922 ; that justice concurred with the majority, however, in rejecting defendant's claim that he had not been advised of the immigration consequences of his 1986 guilty plea. In reaching the latter decision, the court rejected defendant's argument that the prosecution can rebut the statutory presumption of nonadvisement only by presenting clear and convincing proof that the requisite advisements were given. The court held that the applicable standard of proof is preponderance of the evidence.

The Attorney General and defendant both petitioned this court for review. The Attorney General sought review of the Court of Appeal's holding pertaining to the certificate of probable cause, while defendant sought review of the Court of Appeal's conclusion pertaining to the standard of proof. We granted review to resolve both issues.¹

II

Section 1016.5(a) requires a trial court, before accepting a plea of guilty or no contest, to explain to a defendant that if the defendant is not a citizen of this country, conviction of the charged offense "may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization...." Section 1016.5(b) provides a remedy for a noncitizen defendant who is not advised of these consequences: "If ... the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which [the] 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 ... the court, on [the] 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." To prevail on a section 1016.5 motion, a defendant must establish (1) that the advisements were not given; (2) that the conviction may result in adverse immigration consequences; and (3) that the defendant would not have pled guilty or no contest had proper advisements been given. ( People v. Martinez (2013) 57 Cal.4th 555, 558–559, 160 Cal.Rptr.3d 37, 304 P.3d 529 (Martinez ).)

We first consider the threshold inquiry whether obtaining a certificate of probable cause is a prerequisite to appealing a trial court's order denying a defendant's section 1016.5 motion to vacate a conviction.

A. Certificate of Probable Cause to Appeal

A judgment or order is not appealable unless expressly made so by statute. ( People v. Totari (2002) 28 Cal.4th 876, 881, 123 Cal.Rptr.2d 76, 50 P.3d 781 (Totari ).) In Totari, this court held that a trial court's order denying a section 1016.5 motion to vacate a conviction based on a plea of guilty or no contest is appealable: "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) )." ( Totari, supra, at pp. 881–882, 123 Cal.Rptr.2d 76, 50 P.3d 781.) Therefore, section 1237 provides the statutory authority for appealing from the denial of a section 1016.5 motion to vacate. As we explain below, whether a certificate of probable cause is required to perfect such an appeal depends upon whether section 1237's subdivision (a) or subdivision (b) provides the authority to appeal. We now turn to that issue.

The right to appeal from a final judgment of conviction based on a plea of guilty or no contest is subject to certain limitations, including first obtaining a certificate of probable cause from the trial court. ( §§ 1237, subd. (a), 1237.5.) Section 1237's subdivision (a) states that a defendant may appeal from a final judgment of conviction "except as...