People v. Superior Court (Zamudio)

• Citation: 999 P.2d 686,23 Cal.4th 183,96 Cal.Rptr.2d 463
• Decision Date: 05 June 2000
• Docket Number: No. S073031.,S073031.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent; Jose Francisco ZAMUDIO, Real Party in Interest.

96 Cal.Rptr.2d 463

23 Cal.4th 183

999 P.2d 686

The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent;

Jose Francisco ZAMUDIO, Real Party in Interest.

No. S073031.

Supreme Court of California.

June 5, 2000.

As Modified July 12, 2000.

John D. Phillips, District Attorney, Craig H. Holmes and David Wellenbrock, Chief Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Victor S. Haltom, under appointment by the Supreme Court, Sacramento, for Real Party in Interest.

WERDEGAR, J.

Defendant and real party in interest Jose Francisco Zamudio was advised, when pleading no contest in 1992 to the felony of unlawful driving or taking of a vehicle without the owner's consent (Veh. Code, § 10851), that conviction of that offense might have the consequences of his being deported or barred from naturalizing to United States citizenship, but he was not advised the conviction might also result in his being excluded from admission to this country (Pen.Code, § 1016.5, subd. (a)).¹ Upon defendant's motion, the trial court permitted him to withdraw his 1992 plea, vacated the judgment of conviction and reset the matter for trial. (Id., subd. (b).) We conclude that the Court of Appeal, which summarily denied the People's petition for writ relief, thereby contravened the legislative intent underlying section 1016.5. Accordingly, we reverse the decision of the Court of Appeal.

BACKGROUND

On or about August 5, 1992, defendant was arrested and charged with the felony of unlawfully taking or driving a vehicle (Veh.Code, § 10851) and with receiving stolen property (§ 496). Petitioner filed a complaint in the Municipal Court for the County of San Joaquin, Stockton Judicial District (hereafter the 1992 prosecution).

At defendant's arraignment the next day, the court advised him and others who were appearing: "If any of you are not United States citizens and you are convicted of a misdemeanor or a felony, it could be used to cause your deportation or to prevent your obtaining United States citizenship."² The court did not advise defendant that, in the event he were deported or left the country, a conviction might have the further consequence of excluding him from readmission to the United States.

Approximately two weeks later, at the time set for the preliminary hearing, defendant, pursuant to a negotiated settlement, entered a plea of no contest to the vehicle-taking charge, whereupon the court dismissed the charge of receiving stolen property. During the plea colloquy, defendant expressly gave up various constitutional rights, including his right to trial by jury. As to immigration consequences, the court advised defendant: "If you're not a citizen of the United States, a plea of no contest can result in your deportation or in a refusal of naturalization, citizenship or amnesty at a later point in time." The court again failed to advise defendant that a conviction resulting from his plea might also result in his exclusion from admission to the United States. Defendant was sentenced to serve eight months in county jail and placed on five years' probation.

Just under five years later, in May 1997, defendant was arrested and charged in the same court with taking a vehicle (Veh. Code, § 10851), driving under the influence of alcohol or drugs (Veh.Code, § 23152), and unlawful possession and transportation or sale of a controlled substance (Health & Saf.Code, §§ 11377, 11379) (hereafter the 1997 prosecution). An order to show cause alleging defendant's violation of probation also was filed.

A settlement was negotiated encompassing both files, with defendant admitting a probation violation in the 1992 prosecution and pleading no contest to possession of a controlled substance and driving under the influence (with a prior) in the 1997 prosecution. The court gave defendant various advisements, including some relating to immigration.³ The court sentenced him to two years in state prison on the probation violation, reducing the sentence with various credits to 90 days' actual time and granting defendant permission to remain in county jail pending his pregnant wife's giving birth. In consideration of defendant's pleading no contest to possession and driving under the influence (for which he was sentenced to no additional time and placed on informal probation) the remaining counts were dismissed.

In March 1998, defendant filed a section 1016.5 motion seeking to vacate his plea in the 1992 prosecution, alleging that he had been improperly advised about the possible immigration consequences. In support, defendant submitted his immigration attorney's sworn declaration (hereafter the Yun Declaration) that defendant's cumulative criminal convictions, including his convictions under Vehicle Code section 10851,⁴ created the possibility he would suffer adverse immigration consequences.⁵ At the hearing on the motion, the trial court denied petitioner's request to make an offer of proof and for an evidentiary hearing on the questions whether defendant would have pleaded no contest to vehicle taking in 1992 had he been properly advised, and when defendant acquired actual knowledge of the adverse immigration consequences of his plea.

The court also ruled on the validity of a subpoena duces tecum petitioner had served on the public defender for the contents of certain files relating to defendant. Determining that petitioner had a right to receive only that information in the public defender's files relating to the immigration issues raised by defendant's section 1016.5 motion, the court conducted an in camera review of the files to determine if they contained any such information. After conducting its review, the court ruled the files contained "absolutely nothing" relating to this case other than a showing that federal authorities had placed an immigration hold on defendant in connection with the 1997 prosecution, a fact with which, apparently, all present (including counsel for petitioner and defendant) were already familiar.

The trial court granted defendant's section 1016.5 motion, reinstating the original complaint in the 1992 prosecution. Defendant was held to answer, and an information charging him with taking a vehicle and receiving stolen property was filed. Defendant's pleas of not guilty to both charges were taken and the matter set for trial.

We granted review when the Court of Appeal summarily denied petitioner's application for writ relief.⁶

DISCUSSION

Section 1016.5 provides that "[p]rior to acceptance of a plea of guilty or nolo contendere [no contest] 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." (§ 1016.5, subd. (a).)

The statute also specifies a remedy for a trial court's failure to administer the mandated advisements. "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." (§ 1016.5, subd. (b).)

"Absent a record that the court provided the advisement required" by section 1016.5, subdivision (a), the defendant is "presumed not to have received" it. (Id., subd. (b).) In this case, however, no presumption is necessary. Defendant and petitioner agree that, both at the arraignment and at the time of plea in the 1992 prosecution, the trial court expressly advised defendant about possible consequences leading to deportation or affecting naturalization to citizenship, but did not advise him about the possible consequence of "exclusion from admission to the United States" (§ 1016.5, subd. (a)), as also required by the statute.

A. The Trial Court's Section 1016.5 Ruling

As noted, the trial court granted defendant's section 1016.5 motion, vacating his 1992 conviction for taking a vehicle. Quoting People v. Gontiz (1997) 58 Cal.App.4th 1309, 1316, 68 Cal.Rptr.2d 786, the court observed: "`The statute requires the court to warn the defendant expressly of each of the three distinct possible immigration consequences of his conviction[ ] prior to his plea.' I only advised him of two."

According to petitioner, the trial court committed several errors in granting defendant's section 1016.5 motion. . We consider each of petitioner's contentions in turn, reviewing the trial court's ruling for abuse of discretion. (People v. Shaw (1998) 64 Cal.App.4th 492, 495-96, 74 Cal. Rptr.2d 915; see also § 1016.5, subd. (c).)

1. Prejudice requirement

Petitioner first contends the trial court erred in granting defendant relief under section 1016.5 without requiring him to demonstrate he was prejudiced by the incomplete advisement he received at the time of his 1992 plea. Petitioner contends that, in order to prevail on his section 1016.5 motion, defendant must show not only that the trial court failed, at the time of that plea, to advise him as provided by the statute and that there exists, at the time of the motion, more than a remote possibility that his conviction will have one or more of the specified adverse immigration consequences (§ 1016.5, subd. (b)), but also that, properly advised, he would not have pleaded no contest in the first place. For the following reasons, we agree.

a....