People v. Leung, H030877 (Cal. App. 3/28/2008)
| Decision Date | 28 March 2008 |
| Docket Number | H030877 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KA PUI LEUNG, Defendant and Appellant. |
Appeal from the Santa Clara County, Super. Ct. No. E9911109.
Under the authority of Penal Code section 1016.5, subdivision (b),1 defendant Ka Pui Leung sought in superior court to withdraw his no-contest plea because its consequences included eventual deportation. The superior court entered an order denying the motion, ruling that defendant understood the possible immigration consequences of his plea and was ineligible for relief. On appeal, defendant contends that he did not understand the superior court's admonition about the possible immigration consequences of his plea and that his counsel failed to explain them to him before he entered it.
Because we find that defendant suffered no prejudice as a result of the postjudgment order, we will affirm it.
Defendant is a Chinese citizen. Starting shortly after his arrival in the United States he began to accumulate a criminal record, including the felony conviction he seeks to overturn in the present case.
According to his declaration, defendant arrived in the United States and became a lawful permanent resident alien in 1990. He was convicted of theft in California in 1992 and again in 1993, at age 19. The first conviction was for petty theft (§§ 484, 488), and the second was for theft by fraudulent use of an access card (§ 484g).
In 1999 defendant, then about age 25, pleaded no contest to assault with a deadly weapon or by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) A second charged count, of false imprisonment (§§ 236, 237), was dropped. Defendant served 365 days in county jail.
An attack on defendant's girlfriend formed the basis for the aggravated assault conviction. According to the probation report, defendant told her he was going to kill her and attempted to choke her, struck her on the back and arm, and eventually "grabbed a hammer to strike the victim's torso, shoulder, and head." She tried to flee but initially defendant prevented her from doing so. As she was making another attempt, this one successful, defendant slashed her with a knife. She drove to a gasoline station and called the police.
When the probation officer interviewed the victim, she "related another incident which occurred the previous year when the defendant became angry upon learning the victim was pregnant and kicked her a few times in the stomach, causing her to miscarry."
The victim told the probation officer that "defendant has a gambling problem and his losses appear to coincide with his anger."
Defendant told the officers who arrested him that his girlfriend attacked him first and he acted in self-defense. He admitted striking her with a hammer but denied also using a knife.
Following his 1999 conviction, defendant, who remained a foreign citizen and not a United States citizen, made several visits to his native China. On returning from one of them in May of 2006, defendant arrived at the San Francisco airport and Bureau of Customs and Border Protection officials discovered his conviction. He was found deportable in later federal proceedings for having committed a crime of moral turpitude. While awaiting deportation, defendant filed his section 1016.5 motion in superior court.
In a declaration accompanying his motion, defendant averred that his English is poor and he did not understand the immigration advisement given during the court proceedings in which he entered his plea of no contest. He further averred that his attorney spoke to him for a total of 10 minutes and only in Cantonese, did not ask him about his citizenship status, and did not explain the immigration consequences of a no-contest plea to assault with a deadly weapon or by means of force likely to cause great bodily injury.
Defendant also declared that his mother, a United States citizen, is disabled and relies on him financially and physically. The same, he declared, is true of his maternal grandmother, who resides in the United States.
In response, the People submitted declarations from the arresting officer and the probation officer stating that although they did not remember defendant, they would have obtained professional interpreting services if they had been unable to speak with him in English instead of interviewing him themselves as they did. The People also submitted a letter, purportedly written by defendant as he awaited sentencing, and penned in good and somewhat legalistic English, in which defendant asked for leniency.
After hearing argument, the superior court pronounced its ruling, stating (as relevant here) that when defendant's plea was taken in 1999 2 The court also ruled that defendant had not diligently sought relief. As we will explain later, we need not address that portion of the ruling.
Counsel has informed us that defendant was deported while this appeal was pending.
Section 1016.5, subdivision (a), requires the court, prior to accepting a guilty or no-contest plea, to advise the defendant of the immigration consequences: "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:
For the waiver to be valid, the defendant must understand the immigration consequences of the plea. (People v. Ramirez (1999) 71 Cal.App.4th 519, 522; see also People v. Totari (2002) 28 Cal.4th 876, 884 [].) Section 1016.5's language implies such a requirement: (Id., subd. (d), italics added.)
A ruling on a motion under section 1016.5, subdivision (b), is reviewed for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).)
In making its ruling on defendant's section 1016.5 motion the superior court relied on a statement by defense counsel, made during a hearing some days before the taking of defendant's plea, that defendant did not need an interpreter. But, as we have noted, in his declaration defendant averred that his attorney spoke to him for a total of 10 minutes and only in Cantonese, did not ask him about his citizenship status, and did not explain the immigration consequences of the plea he would later enter. The gist of defendant's argument is that defense counsel was (whether or not constitutionally ineffective) lackluster in representing defendant's interests and an unreliable source to inform the trial court that defendant did not need an interpreter. Defendant was aided by an interpreter when he was formally sentenced, but was not similarly assisted during the crucial taking of his plea. Our reading of the record of the taking of the plea suggests to us that defendant's various acknowledgments and waivers were pro forma; they do not necessarily reflect that defendant understood the nature of the proceedings, but neither do they necessarily reflect that he did not understand them.
We conclude, however, that even if the superior court abused its discretion in denying defendant's motion to withdraw his no-contest plea, defendant was not prejudiced by it. Hence we need not decide whether an abuse of discretion occurred.
"To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement." (People v. Totari, supra, 28 Cal.4th at p. 88.)
Defendant concedes that because he was sentenced to a year in jail he is an aggravated felon for immigration-consequence purposes. Because ...
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