The People v. Dubon

• Decision Date: 19 July 2001
• Citation: 90 Cal.App.4th 944,108 Cal.Rptr.2d 914
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. JUAN RAMON DUBON, Defendant and Appellant. B142170 Filed

108 Cal.Rptr.2d 914 (Cal.App. 2 Dist. 2001)

THE PEOPLE, Plaintiff and Respondent, v. JUAN RAMON DUBON, Defendant and Appellant.

B142170

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION THREE

Filed 7/19/01

(Super. Ct. No. A796651)

APPEAL from an order of the Superior Court of Los Angeles County, Michael G. Price, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Vellanoweth & Gehart, Carlos Vellanoweth, John Wolfgang Gehart and Elena Yampolsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General and Karen Bissonnette, Deputy Attorney General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

ALDRICH, J.

Appellant Juan R. Dubon appeals from an order denying his petition for writ of error coram nobis, by which he sought to withdraw his plea of nolo contendere to allegations that he sold or transported marijuana in violation of Health and Safety Code section 11360, subdivision (a). Dubon contends the trial court failed to advise him of the immigration consequences of his nolo contendere plea as mandated by Penal Code section 1016.5. That statute requires that, before accepting a plea of guilty or nolo contendere to any offense punishable as a crime under California law, the trial court must advise the defendant that if he or she is not a United States citizen, conviction of the charged offense could result in deportation, exclusion from admission to the United States, or denial of naturalization. The statute further provides that absent a record that the required advisements were given, the defendant is presumed not to have received them. We affirm the trial court's denial of the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Dubon, a citizen of Honduras, had lived in the United States since 1978.¹ In April 1987, he was charged with violating Health and Safety Code section 11360, subdivision (a), sale or transportation of marijuana. At a preliminary hearing, a police officer testified to the following facts. On February 12, 1987, as part of an undercover drug buy, the officer stopped in front of a liquor store where he had previously purchased narcotics. Dubon and his co-defendant, Carlos Aguilar, were standing nearby. The officer said hello to Dubon. Dubon asked whether the officer was looking for marijuana, and how much he wished to purchase. After the officer stated he wished to purchase "a dime," or $10 worth of the drug, Dubon told the officer "his friend would get it" and that "they had good weed." Aguilar sold the marijuana to the officer while Dubon stood by. Dubon did not give the officer any drugs or take any money during the transaction.

In May 1987, in case No. A796651, Dubon pled nolo contendere to the charge. The trial court suspended imposition of sentence and placed Dubon on three years' probation, the first three days to be spent in jail. Dubon was given credit for three days already spent in custody.

Approximately 12 years later, in 1999, the Immigration and Naturalization Service (INS) arrested Dubon, held him in custody for six months, and, on August 31, 1999, ordered him deported, apparently as a result of the 1987 conviction.

On January 14, 2000, Dubon petitioned the trial court for a writ of error coram nobis. In the petition, Dubon contended the trial court in the 1987 case had not advised him of the immigration consequences of his nolo contendere plea. Dubon asserted that had he known of the immigration consequences of his plea, he would not have accepted a plea bargain but would instead have "exercised [his] right to a jury trial and fought for an acquittal rather than suffer permanent banishment from the United States."

The trial court conducted a hearing on Dubon's petition. The parties agreed that Dubon's case file contained no reporter's transcript for the hearing at which Dubon pled nolo contendere. Because the court reporter's notes were destroyed as a matter of course after 10 years, the transcript was no longer available.

Dubon testified to the following. He was never advised of the immigration consequences of the conviction. He would not have pleaded nolo contendere had he known of such consequences. He was not guilty of the 1987 charge, but pleaded guilty to obtain the benefits of the plea bargain. In 1982, Dubon had pleaded guilty to misdemeanor possession of marijuana. In 1983, he had been charged with felony possession of marijuana for sale, but the matter was dismissed.

The superior court file for case No. A796651 contains a minute order dated May 11, 1987, reflecting Dubon's nolo contendere plea. A box is checked on the order, indicating "Defendant advised and personally waives his right to confrontation of witnesses for the purpose of cross-examination, and waives privilege against self-incrimination. Defendant advised of possible effects of plea on any alien/citizenship/probation/parole status."

Retired Judge Robert Altman, the trial judge in Dubon's 1987 case, testified at the coram nobis hearing as follows. He "always" took defendants' pleas himself, rather than allowing the district attorneys to take them. His practice and habit was to advise defendants as required by Penal Code section 1016.5 in every case. He testified that he was "pretty careful about it. I did not do very quick pleas. I really did my best to make sure that the person understood. [] I didn't rush pleas. I know some people just buzz right through them. I didn't do that." He typically told defendants that, "[I]f you're not a citizen, entering a plea could result in your being deported, denied admission to the United States and denied citizenship." Judge Altman, who typically took over 75 pleas from defendants each month, had no independent recollection of Dubon and had no specific recollection of advising Dubon as required by section 1016.5. However, he had written notes on Dubon's probation report, as was his custom. Those notes indicated, inter alia, that Dubon had come to the United States from Honduras in 1978. On cross-examination, Judge Altman was asked whether the law required that, absent a record, the defendant was presumed not to have received the required advisement. He replied, "I do not know. I do not remember the specific language of the statute and I do not know."

The trial court denied Dubon's petition. It reasoned that whether the People had rebutted the presumption raised by Penal Code section 1016.5 was one of fact. The court opined, "I understand we have no record, so that shifts the presumption to the People to show that he was advised. [] The question is: which then over balances? The testimony of Judge Altman, in each and every case this is what he does? Or your client's testimony that 12 years after the event he's caused to recall this and he remembers that he wasn't?" The trial court expressed its doubt about Dubon's credibility, explaining, "[I]t's common sense. [] It's his third time through the system. He gets the advice, and 12 years later he realizes he's about to be deported and he doesn't have any memory of having got[ten] the advice. That makes sense to me." The court denied the petition on the ground that, "I believe Judge Altman's testimony over balances the defendant's credibility and I find that the defendant was advised under 1016.5."

CONTENTIONS

Dubon's primary contention on appeal is that the trial court erred by finding he was advised in compliance with Penal Code section 1016.5 without the reporter's transcript in case No. A796651. Dubon urges that the prosecution failed to rebut the statutory presumption that, absent a record advisements regarding immigration consequences of a plea were given, a defendant is presumed not to have received them ( 1016.5). The People, on the other hand, contend the minute order, alone or coupled with Judge Altman's testimony, was sufficient to meet the record requirement of section 1016.5.

DISCUSSION

1. Applicable legal principles.

A petition for writ of error coram nobis is equivalent to a motion to vacate the judgment, and the two terms are sometimes used interchangeably. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) A trial court's denial of a coram nobis petition is an appealable order, unless the coram nobis petition failed to state a prima facie case for relief, or the petition raised issues that were, or could have been, raised in other proceedings. (Ibid.) "A writ of coram nobis is generally used to bring factual errors or omissions to the court's attention. [Citation.] 'The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not represented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]' [Citations.]" (People v. Ibanez (1999) 76 Cal.App.4th 537, 544-545; People v. Gallardo, supra, at p. 987.) We review a trial court's denial of a petition for writ of error coram nobis for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).)

Penal Code section 1016.5, subdivision (a), requires that a trial court, prior to accepting a defendant's plea of guilty or nolo contendere to an offense punishable as a crime under California law, advise the defendant that: "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...