Filed 4/15/15 P. v. Grewal CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F068210

                   v.                                                   (Super. Ct. No. CF99200011)

KARMJIT SINGH GREWAL                                                                 OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell, III, Judge.
         Law Office of Sam Salhab and Samer A. Salhab, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



        Before Levy, Acting P.J., Cornell, J., and Gomes, J.
       Appellant, Karmjit Singh Grewal, appeals from the denial of his motion to set
aside his guilty pleas in a 1999 case. He contends the trial judge did not adequately
explain to him the immigration consequences of his plea as required by Penal Code
section 1016.5,1 and, therefore, the plea must be set aside under that statute. We affirm.
                                         FACTS
       On November 28, 1998, Grewal was driving under the influence of alcohol when
he was involved in an accident in which he killed an adult and endangered a child. Three
hours after the accident Grewal’s blood alcohol content was measured at .07 percent.
       On January 28, 1999, the district attorney filed a complaint charging Grewal with
vehicular manslaughter (count 1/§ 192, subd. (c)(3)), driving with a blood alcohol content
of .08 percent or more and causing bodily injury (count 2/Veh. Code, § 23153, subd. (b)),
driving under the influence of alcohol and causing bodily injury (count 3/Veh. Code,
§ 23153, subd. (a)), and child endangerment (count 4/§ 273a, subd. (a)).
       On May 6, 1999, following a preliminary hearing the court reduced the charges to
misdemeanors. Grewal then filled out a Misdemeanor Advisement, Waiver of Rights,
and Plea Form and pled guilty to all four counts. After taking Grewal’s plea, the court
placed Grewal on probation and ordered him to serve 180 days in custody. Grewal was
represented by Attorney Frank Gash during these proceedings.
       On February 2, 2005, the court granted Grewal’s motion to dismiss the 1999 case.
       On July 7, 2011, Grewal was arrested by United States Citizenship and
Immigration Services and released later that day on a GPS monitor pending the outcome
of removal proceedings.




1      All further statutory references are to the Penal Code, unless otherwise indicated.

                                             2
          Grewal was subsequently subject to a removal order and filed an application for
cancelation of removal proceedings. His petition, however, was denied because of his
convictions in the 1999 case.
          On August 27, 2013, Grewal filed a petition to vacate his guilty pleas in the 1999
case alleging it could not be demonstrated that he was administered the immigration
advisement and that his plea was not made knowingly, intelligently or voluntarily.
Exhibit A of the petition was a minute order of the May 6, 1999, hearing which indicated
that Grewal had executed a change of plea form and Exhibit B was the change of plea
form Grewal executed on that date.
          On September 19, 2013, the prosecutor filed a response to Grewal’s motion to
vacate. In addition to citing to portions of Grewal’s change of plea form, the opposition
included records from the County of Fresno Automated Court System (COFACS)2 for
Grewal’s 1999 case. An entry dated May 6, 1999, that related to Grewal’s change of plea
stated:

                 “Court informs defendant of his constitutional rights and indicate[s]
          on attached change of plea form; or pursuant to the following: Trial by
          Jury, To face and cross-examine accusers, Does not have to incriminate
          himself, assistance of the Court in calling witness, Consequences of plea,
          e.g., maximum-minimum fine or, imprisonment and consequences of
          subsequent conviction, Consequences of plea, e.g., deportation, exclusion,
          or, denial of naturalization if not a U.S. Citizen, PC1015.5.” (Italics
          added.)
          On October 3, 2013, the court initially granted Grewal’s motion. However, after
the prosecutor pointed out that an entry in the COFACS indicated that Grewal had been
advised of the immigration consequences of his plea the court reversed its ruling and took
the matter under submission. It also allowed the parties the opportunity to file anything

2      The COFACS was described in the People’s response to Grewal’s motion as the
computerized archives of the Fresno County Superior Court. The response also asked the
court to take judicial notice of its own file in Grewal’s case.

                                                3
they wanted the court to consider. During the hearing defense counsel did not object to
the court considering the COFACS. However, in a response to the People’s opposition
filed on October 8, 2013, defense counsel objected to the COFACS’s admission into
evidence “based on foundation” because it was not part of the court file.3
       On October 11, 2013, the court denied the motion. In so ruling the court stated,
“The fact that [defense counsel] Gash failed to sign the change of plea form, the Court is
not convinced that that is sufficient to show that … Grewal was not advised of the
immigration consequences as required by … section 1016.5.”4
                                      DISCUSSION
       Grewal contends the minute order for the May 6, 1999, change of plea hearing and
the change of plea form he executed on that date are insufficient to prove he was advised
of the immigration consequences of his plea during the change of plea proceeding on
May 6, 1999. He further contends that the COFACS document is also insufficient to
prove he was advised of these immigration consequences because it was not certified and
the prosecutor did not authenticate it or provide any foundation for it to be considered by
the court. Thus, according to Grewal, the court abused its discretion when it denied his
motion to vacate his 1999 convictions. We reject these contentions.

              “A motion to vacate the judgment is the equivalent of a petition for a
       writ of error coram nobis. [Citation.] As such, it is an appealable order.
       [Citation.] We review a motion to vacate under [Penal Code]
       section 1016.5 for abuse of discretion. [Citation.]” (People v. Gutierrez
       (2003) 106 Cal.App.4th 169, 172.)

3       Grewal contends that at the October 3, 2013, hearing he “objected to the COFACS
document on lack of foundation.” The record, however, shows that he only complained
that the COFACS document was not part of the court file and never made a formal
objection to the court considering that document.
4     After the court denied the motion, defense counsel received the court’s permission
to make a statement on the record. During his comments counsel objected on
foundational grounds to the court considering the COFACS.

                                             4
               “[Penal Code s]ection 1016.5, subdivision (a), provides that ‘[p]rior
       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.’ A defendant is ‘presumed not to have received’
       the advisement unless it appears in the record. [Citations.]

              “The statute specifies a remedy for a trial court’s failure to
       administer the advisement: ‘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.’ ([Pen. Code,]
       § 1016.5, subd. (b).)

               “‘To prevail on a motion to vacate under [Penal Code] 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.’ [Citations.]” (People v. Akhile (2008) 167 Cal.App.4th
       558, 562.)
       At the May 6, 1999, hearing Grewal executed a change of plea form that has four
different, dated signatures including Grewal’s signature. It also has Grewal’s initials in
boxes located next to many of the statements on the form. In a section with the heading
“Right to a Lawyer” Grewal’s initials appear in a box next to the following statement, “I
have had enough time to discuss my case and all possible defenses with my lawyer.” In a
section with the heading “Consequences of Plea of Guilty or No Contest” his initials
appear in a box next to the following statement, “If I am not a citizen my change of plea
could result in my deportation, exclusion from admission to the United Stated, and/or a
                                             5
denial of naturalization.” (Italics added.) Towards the end of the section Grewal signed
and dated the following statement: “I declare under PENALTY OF PERJURY … that I
have read, understood, and initialed each item above, and everything on the form is true
and correct.” (Italics added.)
          Below that signature line, in the same section, are two statements. One statement
allows the defendant to authorize his attorney in the defendant’s absence to enter a plea
for the defendant; the second statement allows the defendant to waive his right to be
sentenced by the same judge who took his plea. A line for the defendant’s signature
appears below these statements. That line contains the date, May 6, 1999, and an
unidentified signature.
          The section “Consequences of Plea of Guilty or No Contest” is followed by a
section that has the following heading, “Lawyer’s Statement” which is unsigned and
states:

          “I am the lawyer of record for the defendant. I have gone over this form
          with my client. I have explained each of the defendant’s rights to the
          defendant, and answered all of the defendant’s questions with regard to this
          plea. I have discussed the facts of the defendant’s case with the defendant,
          and explained the consequences of this plea, …” (Italics added.)
          Below the “Lawyer’s Statement” section is a section with the heading,
“Interpreter’s Statement …” which is signed and dated and states:

          “I [interpreter’s name], having been duly sworn, truly translated this form
          to the defendant in the Punjabi language. The defendant indicated that
          (s)he understood the contents of the form, and (s)he then initialed the
          form.”
          Immediately below that section is a section with the heading “Court’s Findings
and Order” which is signed and dated by the court and states:

          “The Court, having reviewed this form and having questioned the
          defendant concerning the defendant’s constitutional rights, accepts the
          defendant plea(s) and the factual basis for the plea(s), and finds that the

                                                 6
       defendant has expressly, knowingly, understandingly and intelligently
       waived his or her constitutional rights. The Court finds that the defendant’s
       plea(s) are freely and voluntarily made with an understanding of the nature
       and consequences thereof.…” (Italics added.)
       There were only three other people in addition to the court who were required to
sign the change of plea form and who would have had the opportunity to do so: Grewal,
his defense counsel, and the interpreter. Additionally, it is readily apparent from a visual
comparison of the unidentified signature in the “Consequences of Plea of Guilty or No
Contest” section to the three other signatures on the form that the unidentified signature
and date in the “Consequences of Plea of Guilty or No Contest” section were not made by
Grewal, the interpreter, or the court. Further, the response to the People’s opposition
filed on October 8, 2013, included a declaration from Defense Counsel Frank Gash5 and
the signature on Gash’s declaration appears virtually identical to the unidentified
signature in the “Consequences of Plea of Guilty or No Contest” section. It is apparent
from these circumstances that the unidentified signature and accompanying date in that
section were made by Attorney Gash and that he mistakenly signed the form in the wrong
section rather than in the “Lawyer’s Statement” section where he should have signed it.6
       “A … court may rely upon a defendant’s validly executed waiver form as a proper
substitute for [a personal admonishment].” (People v. Castrillon (1991) 227 Cal.App.3d
718, 721-722 [enforcing, as part of a plea agreement, defendant’s written waiver of the
right to appeal the denial of a motion to suppress pursuant to § 1538.5, subd. (m)]; cf. In


5     In the declaration, Attorney Gash, in pertinent part, asserts that he could not
“independently recollect whether [he] gave any immigration advisement to … Grewal
whatsoever regarding this case.”
6     Although the trial court found that Attorney Gash did not sign the change of plea
form we are not bound by this factual finding which is not supported by the record.
(People v. Butler (2003) 31 Cal.4th 1119, 1127 [“Under the substantial evidence rule, a
reviewing court will defer to a trial court’s factual findings to the extent they are
supported in the record .…”].)

                                             7
re Ibarra (1983) 34 Cal.3d 277, 286 [“[A] defendant who has signed a waiver form
[waiving Boykin-Tahl rights7] upon competent advice of his attorney has little need to
hear a ritual recitation of his rights by a trial judge.”].) “Only if in questioning the
defendant and his attorney the trial court has reason to believe the defendant does not
fully comprehend his rights, must the trial court conduct further canvassing of the
defendant to ensure a knowing and intelligent waiver of rights.” (People v. Castrillon,
supra, 227 Cal.App.3d at p. 722; cf. In re Ibarra, supra, 34 Cal.3d at p. 286 [“The judge
need only determine whether defendant had read and understood the contents of the form,
and had discussed them with his attorney.”].) Accordingly, since Grewal executed a
change of plea form containing the requisite section 1016.5 advisement that was
interpreted to him and signed by his defense counsel (albeit in the wrong section), the
form was sufficient to rebut the presumption of section 1016.5 that he was not adequately
advised of the immigration consequences of his plea.
       Moreover, the record contains a COFACS document that included a summary of
Grewal’s May 6, 1999, change of plea proceedings which states that Grewal was advised
of the “Consequences of plea, e.g., deportation, exclusion, or, denial of naturalization if
not a U.S. citizen .…” This document is also sufficient to rebut the presumption of
section 1016.5 that Grewal was not advised of the immigration consequences of his plea.
       Grewal contends that the trial court could not consider this document because it
“lacked foundation” and it was not authenticated or certified.8 We disagree.



7      Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
8      Grewal also appears to contend that we may not consider the COFACS document
because it was not contained within the court file. We summarily reject this argument
because he has not advanced any authority or argument in support thereof. (People v.
Smith (2003) 30 Cal.4th 581, 616, fn. 8 [“We need not consider … a perfunctory
assertion unaccompanied by supporting argument.”].)

                                               8
              “Evidence Code section 353 provides, as relevant, ‘A verdict or
       finding shall not be set aside, nor shall the judgment or decision based
       thereon be reversed, by reason of the erroneous admission of evidence
       unless: [¶] (a) There appears of record an objection to or a motion to
       exclude or to strike the evidence that was timely made and so stated as to
       make clear the specific ground of the objection or motion ....’ (Italics
       added.) ‘In accordance with this statute, we have consistently held that the
       “defendant’s failure to make a timely and specific objection” on the ground
       asserted on appeal makes that ground not cognizable. [Citation.]’
       [Citation.]” (People v. Partida (2005) 37 Cal.4th 428, 433-434.)

               “The objection requirement is necessary in criminal cases because a
       ‘contrary rule would deprive the People of the opportunity to cure the
       defect at trial and would “permit the defendant to gamble on an acquittal at
       his trial secure in the knowledge that a conviction would be reversed on
       appeal.”’ [Citation.] ‘The reason for the requirement is manifest: a
       specifically grounded objection to a defined body of evidence serves to
       prevent error. It allows the trial judge to consider excluding the evidence or
       limiting its admission to avoid possible prejudice. It also allows the
       proponent of the evidence to lay additional foundation, modify the offer of
       proof, or take other steps designed to minimize the prospect of reversal.’
       [Citation.]” (People v. Partida, supra, 37 Cal.4th at p. 434, italics added.)
       Grewal did not object to the introduction of the COFACS document on foundation
grounds at the October 3, 2013, hearing when the prosecutor still had the opportunity to
lay additional foundation for the admission of that document. Instead, he waited until
October 8, 2013, to make this objection in his moving papers when he filed a response to
the prosecutor’s opposition to his motion. Thus, Grewal’s objection was untimely
because he made it at a time when the prosecutor no longer had the opportunity to cure
the alleged defect in admitting the COFACS document. Consequently, Grewal waived
his right to challenge the COFACS document on the grounds noted above.
       Grewal also cites errors in his change of plea form and the COFACS documents to
contend that they are unreliable to prove he was advised of the immigration consequences
of his plea. For example, he notes that on the change of plea form he initialed a box next
to a statement that asserted that he was authorizing his attorney to enter a plea for him


                                             9
which obviously was not true because he personally entered his plea. He also cites the
following contradiction in the COFACS document: although the document states that
Grewal was sentenced to serve 180 days in custody with “[c]redit for time served [of] 1
day[]” it also states that he was awarded “[c]redit for good time/work time [of] 60 days”
thus leaving “[t]otal days to serve [of] 119 DS[.]”
       These arguments go to the weight of the evidence and, in effect, challenge its
sufficiency to support the court’s ruling on Grewal’s motion to vacate. In assessing the
sufficiency of evidence to support a trial court ruling, a reviewing court does not reweigh
the evidence. (Cf. People v. Lindberg (2008) 45 Cal.4th 1, 27.) “‘When a trial court’s
factual determination is attacked on the ground that there is no substantial evidence to
sustain it, the power of an appellate court begins and ends with the determination as to
whether, on the entire record, there is substantial evidence, contradicted or
uncontradicted, which will support the determination....’ [Citation.]” (People v. Superior
Court (Jones) (1998) 18 Cal.4th 667, 681, fn. omitted.) Accordingly, since the record
contains evidence that supports the trial court’s factual finding that Gerwal was told of
the immigration consequences of pleading guilty,9 the court did not abuse its discretion
when it denied Grewal’s motion to vacate his 1999 convictions.
                                     DISPOSITION
       The judgment is affirmed.




9      In view of this conclusion, we will not discuss the court’s alternative bases for
denying Grewal’s motion, i.e., that he failed to show that there was more than a remote
possibility that the conviction would have one of the specified adverse consequences or
that he was prejudiced by the non-advisement.

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