Filed 4/7/14




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S199339
           v.                        )
                                     )                         Ct.App. 2/2 B225443
VICTOR D. ARRIAGA,                   )
                                     )                        Los Angeles County
           Defendant and Appellant.  )                       Super. Ct. No. A537388
____________________________________)


        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 (a)(8), repealed by Stats. 2010, ch. 711, § 4, operative Jan.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 been not 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 (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.

                                            1
       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

                                          2
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

                                          3
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; 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




1      During the pendency of our review, defense counsel notified us that
defendant was granted United States citizenship, thus foreclosing the possibility of
his deportation. Neither party asked us to dismiss review, and we exercised our
discretion in keeping the case to resolve the two issues presented. (See, e.g.,
People v. Harrison (2013) 57 Cal.4th 1211, 1218 [exercising this court‟s “inherent
discretion” to resolve the issue presented despite mootness of immediate
controversy]; San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498,
501, fn. 2 [noting that this court may decide moot cases that present important
questions affecting the public interest].)

                                          4
                                           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 (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 (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


                                           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.) 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 provided in . . . Section 1237.5.” (Italics
added.) Section 1237.5 states: “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of guilty or nolo contendere . . . except where
. . . [¶] . . . [¶] (b) The trial court has executed and filed a certificate of probable
cause for such appeal with the clerk of the court.” (Italics added.)
       A certificate of probable cause for appeal should not be issued if the
intended appeal is “clearly frivolous and vexatious.” (People v. Ribero (1971) 4
Cal.3d 55, 63, fn. 4.) Conversely, issuance of the certificate is proper when the
issue on appeal involves “an honest difference of opinion.” (Ibid.) In other
words, the requirement of a certificate of probable cause serves as a mechanism
for the trial court to determine whether there is a legitimate basis for the appeal.
(People v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson).) As this court has
explained: “ „Before the enactment of section 1237.5, the mere filing of a notice

                                           6
of appeal required preparation of a record and, in many cases, appointment of
counsel; only after expenditure of those resources would an appellate court
determine whether an appeal raised nonfrivolous issues that fell within the narrow
bounds of cognizability.‟ ” (Ibid., quoting People v. Hoffard (1995) 10 Cal.4th
1170, 1179.) The Legislature enacted section 1237.5 to remedy the unnecessary
expenditure of judicial resources by preventing frivolous appeals challenging
convictions based on pleas of guilty or no contest. (Ibid.)
       Defendant here contends a certificate of probable cause is not required to
appeal a trial court‟s denial of a section 1016.5 motion to vacate a conviction
resulting from either a plea of guilty or no contest because such an appeal is not, in
the language of section 1237.5, “from a judgment of conviction upon a plea of
guilty or nolo contendere . . . .” Rather, defendant says, the appeal follows a trial
court‟s denial of a motion to vacate a judgment of conviction based on a plea of
guilty or no contest. A similar argument was made in Johnson, supra, 47 Cal.4th
668, in which the defendant, without a certificate of probable cause, sought to
appeal from the trial court‟s order denying his motion to withdraw his guilty plea.
In rejecting the defendant‟s argument in Johnson that a probable cause certificate
was not required to pursue his appeal, this court stated: “A defendant must obtain
a certificate of probable cause in order to appeal from the denial of a motion to
withdraw a guilty plea, even though such a motion involves a proceeding that
occurs after the guilty plea.” (Id. at p. 679, citing People v. Ribero, supra, 4
Cal.3d 55.) It is significant, however, as we explain on page 8, post, that the
defendant‟s appeal in Johnson was from a final judgment of conviction, and thus
brought under the authority of section 1237‟s subdivision (a).
       The Court of Appeal in Placencia, supra, 194 Cal.App.4th 489, relied on
our Johnson decision in concluding that a defendant‟s right to appeal a trial court‟s
denial of a section 1016.5 motion to vacate a conviction is contingent on first

                                          7
obtaining a certificate of probable cause. The Placencia court reasoned that “the
existence of an express statutory basis for a motion to challenge a trial court‟s
failure to give an immigration advisement does not warrant creation of a new
exception to the certificate of probable cause requirement.” (Placencia, supra, at
p. 494; see also People v. Rodriguez (2012) 208 Cal.App.4th 998 [holding that the
defendant was required to obtain a certificate of probable cause in order to appeal
from the denial of his motion to vacate his conviction].) The Court of Appeal here
reached the opposite conclusion, reasoning that an exception to the certificate of
probable cause requirement is not necessary to appeal a trial court‟s denial of a
section 1016.5 motion because such motions, unlike a “final judgment of
conviction” (§ 1237, subd. (a)), are not limited by section 1237.5. We agree. Our
reasons follow.
       As discussed on page 6, ante, the statutory right of appeal under section
1237‟s subdivision (a) is expressly limited by section 1237.5‟s certificate of
probable cause requirement. In Totari, supra, 28 Cal.4th at page 887, however,
this court stated that the right to appeal a trial court‟s denial of a motion to vacate
a conviction under section 1016.5 is authorized by section 1237‟s subdivision (b).
Unlike section 1237‟s subdivision (a), the right of appeal authorized by that
section‟s subdivision (b) is not limited by section 1237.5. Section 1237‟s
subdivision (b) simply says that an appeal may be taken by the defendant “[f]rom
any order made after judgment, affecting the substantial rights of the party.”
       It is a settled principle of statutory interpretation that if a statute contains a
provision regarding one subject, that provision‟s omission in the same or another
statute regarding a related subject is evidence of a different legislative intent. (Los
Angeles County Metropolitan Transp. Authority v. Alameda Produce Market, LLC
(2011) 52 Cal.4th 1100, 1108; People v. Licas (2007) 41 Cal.4th 362, 367; People
v. Cottle (2006) 39 Cal.4th 246, 254.) The Legislature‟s express requirement that

                                            8
a probable cause certificate be obtained before bringing an appeal under section
1237‟s subdivision (a), juxtaposed with its omission of such a requirement in
section 1237‟s subdivision (b), indicates the Legislature‟s intent not to require a
certificate of probable cause for appeals brought under subdivision (b). This
makes sense, because an appeal from a postjudgment order does not generally
require preparation of a trial record or the appointment of counsel, and thus does
not implicate the probable cause certificate‟s purpose of preserving scarce judicial
resources. (See Johnson, supra, 47 Cal.4th at p. 676, discussed on p. 6, ante.)
Because it is section 1237‟s subdivision (b) that authorizes an appeal from a trial
court‟s order denying a section 1016.5 motion to vacate a conviction (Totari,
supra, 28 Cal.4th at p. 887), and that subdivision does not condition the right to
appeal on first obtaining a certificate of probable cause, defendant here was not
required to obtain a certificate of probable cause before challenging the denial
order on appeal.2
B. Standard of Proof
       We now decide the second issue on which we granted review: What
standard of proof must the prosecution meet to overcome the legal presumption
that a defendant was not advised of the potential immigration consequences of his
conviction — deportation, exclusion from the United States, and denial of
naturalization — when, as here, the record does not adequately show that the
advisements were given? The presumption of nonadvisement is imposed by
section 1016.5(b), which states: “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.” Because here no reporter‟s transcript exists of
defendant‟s 1986 plea hearing, and the minute order of that hearing does not set

2     We disapprove the contrary holdings of Placencia, supra, 194 Cal.App.4th
489 and People v. Rodriguez (2012) 208 Cal.App.4th 998.

                                          9
forth the actual advisements given, both parties agree that section 1016.5(b)‟s
presumption of nonadvisement applies. The parties also agree that the
presumption of nonadvisement is rebuttable. (People v. Dubon (2001) 90
Cal.App.4th 944, 954 (Dubon).)
       Every rebuttable presumption is either “(a) a presumption affecting the
burden of producing evidence or (b) a presumption affecting the burden of proof.”
(Evid. Code, § 601.) A presumption meant to implement a public policy
determination affects the burden of proof. (Evid. Code, § 605.) The Legislature‟s
provision of a remedy under section 1016.5(b), to “protect alien defendants who
pleaded guilty without knowing that their guilty plea could lead to immigration
consequences” (Totari, supra, 28 Cal.4th at p. 883), was a policy decision. Thus,
the presumption of nonadvisement in section 1016.5(b) affects the burden of
proof. (Dubon, supra, 90 Cal.App.4th at p. 953.)
       The standard of proof, the United States Supreme Court has said, “serves to
allocate the risk of error between the litigants and to indicate the relative
importance attached to the ultimate decision.” (Addington v. Texas (1979) 441
U.S. 418, 423.) At one end of the spectrum is the “preponderance of the
evidence” standard, which apportions the risk of error among litigants in roughly
equal fashion. (Ibid.) At the other end of the spectrum is the “beyond a
reasonable doubt” standard applied in criminal cases, in which “our society
imposes almost the entire risk of error upon itself.” (Id. at p. 423.) Between those
two standards is the intermediate standard of clear and convincing evidence. (Id.
at p. 424.) These three standards are codified in California‟s Evidence Code.
Section 115 of that code states: “The burden of proof may require a party to . . .
establish the existence or nonexistence of a fact by a preponderance of the
evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.


                                          10
[¶] Except as otherwise provided by law, the burden of proof requires proof by a
preponderance of the evidence.” (Italics added.)
       If the Legislature has not established a standard of proof, a court must
determine the appropriate standard by considering all aspects of the law. (People
v. Burnick (1975) 14 Cal.3d 306, 314.) No standard of proof is specified in
section 1016.5, which pertains to a trial court‟s responsibility to advise noncitizen
defendants of the immigration consequences of conviction and authorizes a
postjudgment motion to vacate conviction if a defendant is not properly advised.
Defendant here contends that to rebut the presumption that he was not told of the
immigration consequences of his guilty plea, the prosecution must prove by clear
and convincing evidence that such advisements were given. As explained below,
we agree with the Court of Appeal that the applicable standard of proof is
preponderance of the evidence.
       “The standard of proof that is required in a given context has been said to
reflect „. . . the degree of confidence our society thinks [the factfinder] should have
in the correctness of factual conclusions for a particular type of adjudication.‟ . . .
The standard of proof may therefore vary, depending upon the gravity of the
consequences that would result from an erroneous determination of the issue
involved.” (People v. Jimenez (1978) 21 Cal.3d 595, 604 (Jimenez), citation
omitted; see Harris v. Santa Monica (2013) 56 Cal.4th 203, 238.) Defendant here
argues that the grave consequence of deportation calls for a rule requiring the
prosecution to establish by clear and convincing evidence that the required
immigration advisements were given. In support of his argument, he notes this
court‟s observation that a noncitizen defendant has a “ „substantial right‟ ” to
complete advisements under section 1016.5. (Totari, supra, 28 Cal.4th at p. 883;
see People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200
(Zamudio).) He also relies on the United States Supreme Court‟s holding that “no

                                          11
deportation order may be entered unless it is found by clear, unequivocal, and
convincing evidence that the facts alleged as grounds for deportation are true.”
(Woodby v. Immigration Service (1966) 385 U.S. 276, 286 (Woodby); see also
Schneiderman v. United States (1943) 320 U.S. 118, 125 [applying the same rule
to denaturalization proceedings].)
       That noncitizen defendants have a substantial right to complete
immigration advisements before pleading guilty or no contest does not compel the
conclusion that a clear and convincing evidence standard should be imposed to
rebut the presumption of nonadvisement in section 1016.5(b). In People v.
Carpenter (1997) 15 Cal.4th 312, 380-382, for instance, this court held that
although a jury‟s determination whether a defendant committed crimes other than
those for which he was then being tried “affected the „substantial rights of the
defendant,‟ ” such “other crimes” needed to be proven at the guilt phase of a trial
only by a preponderance of the evidence.
       In evaluating the consequences that may result from an erroneous
determination that a defendant was properly advised, “it is necessary to consider
the nature and purpose of the proceedings involved.” (Jimenez, supra, 21 Cal.3d
at p. 604.) Unlike deportation proceedings, in which the government must
establish the facts alleged as grounds for deportation by clear and convincing
evidence (Woodby, supra, 385 U.S. at p. 286), a hearing on a motion to vacate a
conviction under section 1016.5, at issue here, is a collateral attack on a final
judgment of conviction. The defendant bringing such a motion has already
admitted the truth of the evidence supporting the conviction, and, as with a claim
of ineffective assistance of counsel (In re Resendiz (2001) 25 Cal.4th 230, 254),
the defendant carries the ultimate burden of proving that relief should be granted
(Martinez, supra, 57 Cal.4th at p. 565; see People v. Kim (2009) 45 Cal.4th 1078,
1107 (Kim) [“ „ “For purposes of collateral attack, all presumptions favor the truth,

                                          12
accuracy, and fairness of the conviction and sentence; defendant thus must
undertake the burden of overturning them.” ‟ ”]). Also weighing against a clear
and convincing evidence standard of proof is the government‟s strong interest in
the finality of judgments. (Kim, supra, at p. 1107.)
       We emphasize, however, that the presumption of nonadvisement
established by section 1016.5‟s subdivision (b) is controlling unless and until the
prosecution rebuts it by proving it is more likely than not that the defendant was
properly advised. There will be circumstances, not present here, under which the
trial court may properly conclude that the prosecution has not rebutted the
nonadvisement presumption. For instance, both the original prosecutor and the
trial judge may be unavailable to testify; their testimony about what occurred at
the plea hearing may prove less persuasive than the defendant‟s testimony; or the
minute order for the plea hearing, by the absence of any notation that the
defendant was advised, may strongly support an inference that advisements were
not given (see Martinez, supra, 57 Cal.4th at p. 560).
       Here, the trial court reasonably found that the prosecution did carry its
burden of proving that defendant received the proper advisements. At the 2010
hearing on his motion to vacate his guilty-plea-based conviction, defendant
testified that he did not remember whether, at his 1986 plea hearing, he was told of
the possible immigration consequences of pleading guilty. The prosecutor who
had been assigned to the 1986 hearing testified at defendant‟s 2010 motion to
vacate the 1986 conviction that, although he did not recall defendant specifically,
it was his practice to always advise defendants of the immigration consequences of
pleading guilty or no contest, as required by section 1016.5. The prosecutor
recited in detail his oft-given advisement of immigration consequences (see ante,
p. 3). This testimony, coupled with the checked box on the minute order of the
1986 plea hearing, which indicated, “Defendant advised of possible effects of plea

                                         13
on any alien or citizenship/probation or parole status,” supports the trial court‟s
finding that defendant was told of the immigration consequences of pleading
guilty.
                                   DISPOSITION
          We affirm the judgment of the Court of Appeal.


                                                  KENNARD, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Arriaga
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 201 Cal.App.4th 429
Rehearing Granted

__________________________________________________________________________________

Opinion No. S199339
Date Filed: April 7, 2014
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Steven D. Blades

__________________________________________________________________________________

Counsel:

Joanna Rehm, 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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Joanna Rehm
12121 Wilshire Boulevard, Suite 600
Los Angeles, CA 90025
(310) 207-0059

Steven D. Matthews
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2367
