Filed 4/16/13 P. v. Sicarios CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046587

                    v.                                                 (Super. Ct. No. C-80761)

RAUL MENDOZA SICARIOS,                                                 OPINION

     Defendant and Appellant.


                   Appeal from a postjudgment order of the Superior Court of Orange County,
Craig E. Robison, Judge. Appeal dismissed; appeal treated as petition for writ of
mandate and denied.
                   Law Offices of Natalio Pereira, Natalio Pereira and Robert Kasenow, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              Defendant Raul Mendoza Sicarios appeals from a postjudgment order
denying his Penal Code section 1016.5 (all further statutory references are to this code
unless otherwise stated) motion to vacate his 1990 conviction following his guilty plea to
possessing cocaine for sale. He contends he was not adequately advised of the
immigration consequences of his plea as required by section 1016.5. We dismiss the
appeal due to defendant‟s failure to obtain a certificate of probable cause but grant his
request to treat the appeal as a petition for writ of mandate and deny the petition.


                                            FACTS


              A native and citizen of Mexico, defendant entered the Unites States in
1980. In 1990, he pleaded guilty to possessing cocaine for sale on a preprinted Tahl
form. (In re Tahl (1969) 1 Cal.3d 122.) He initialed the box that states, “I understand
that if I am not a citizen of the United States the conviction for the offense charged may
have the consequence of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.” He also initialed the
box that states, “I have personally initialed each of the above boxes and discussed them
with my attorney,” as well as the box signed by his trial counsel stating he “explained
each of the above rights to the defendant” and “stipulate[s] this document may be
received by the court as evidence of defendant‟s intelligent waiver of these rights and that
it shall be filed by the clerk as a permanent record of that waiver. . . .”
              The Tahl form and minute order indicate an interpreter, Alba Jones, was
present and “sworn to interpret. in Spanish.” The court‟s minute order also indicates
defendant was advised of the “conseq[.] of plea if not a citizen.” In exchange for the
plea, defendant received three years of probation with 90 days of local custody time.
              Defendant obtained lawful permanent resident status in 2010 only to have it
revoked because of his guilty plea. He moved to withdraw his plea, asserting he did not

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receive sufficient notice of the immigration consequences of his plea. In January 2012,
the court found defendant was adequately advised and denied the motion.
              A few weeks later, defendant filed, in pro. per., a notice of appeal from the
1990 plea but used the date of the denial of his motion to vacate. He also requested a
certificate of probable cause. The court denied the request, finding it untimely to the
extent it sought to directly challenge the 1990 plea and that no certificate was required to
appeal the denial of the section 1016.5 motion. The Orange County Superior Court Clerk
marked defendant‟s notice of appeal “inoperative” due to the court‟s denial of the
certificate request. Defense counsel subsequently filed a notice of appeal from the
January 2012 order without requesting a certificate of probable cause and instead citing
section 1237, subdivision (b) and People v. Totari (2002) 28 Cal.4th 876.


                                       DISCUSSION


1. Absence of Certificate of Probable Cause
              The Attorney General contends the appeal should be dismissed due to the
lack of a certificate of probable cause and that the trial court‟s erroneous conclusion one
was not needed on appeal from the denial of a section 1016.5 motion does not relieve
defendant from obtaining one. We agree.
              People v. Placencia (2011) 194 Cal.App.4th 489, held a defendant cannot
challenge the denial of a motion to vacate a guilty plea under section 1016.5 without first
complying with section 1237.5‟s requirements. (Placencia, at pp. 493-495.) It reasoned,
although appeals based on grounds arising after the entry of the plea and not challenging
its validity do not require a certificate of probable cause, an appeal from denial of a
section 1016.5 motion to vacate is based on the claim the trial court failed to give the
requisite advisements “which necessarily precedes the entry of the plea and affects the
validity of the plea. [Citations.]” (Placencia, at pp. 493-494.) A contrary position was

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taken by another appellate court in which the Supreme Court has granted review.
(People v. Arriaga (2011) 201 Cal.App.4th 429, review granted Feb. 22, 2012, S199339.)
Pending direction from the Supreme Court, we agree with Placencia.
              Defendant contends Placencia was wrongly decided because an appeal
from the denial of a section 1016.5 motion is governed by section 1237, subdivision (b),
which does not require a certificate of probable cause. People v. Rodriguez (2012) 208
Cal.App.4th 998, recently rejected a similar argument stating, “[a]lthough defendant‟s
appeal is technically from an „order made after judgment‟ within the meaning
of . . . section 1237, subdivision (b), it challenges the validity of his nolo contendere plea.
As a result, defendant was required to obtain a certificate of probable cause in order to
appeal from the denial of his motion to vacate the judgment. [Citations.] Having failed
to do so, the appeal must be dismissed. [Citations.]” (Id. at p. 1000.) Rodriguez found
the defendant‟s reliance on People v. Totari, supra, 28 Cal.4th 876 “misplaced” because
while Totari “held the . . . denial of a . . . section 1016.5 motion to vacate the judgment
was appealable under . . . section 1237, subdivision (b),” it “had no occasion to consider
and did not discuss whether such a certificate was required” given that “the defendant
had obtained a certificate of probable cause. [Citation.]” (Rodriguez, at p. 1000.)
              We find Rogriquez persuasive and adopt its rationale. Defendant‟s failure
to obtain the requisite certificate of probable cause, or file a petition for writ of mandate,
requires us to dismiss the appeal. (People v. Hoffard (1995) 10 Cal.4th 1170, 1180, fn. 8;
People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.)


2. Treatment of Appeal as a Petition for Writ of Mandate
              Defendant requests we treat the appeal as a petition for writ of mandate,
citing People v. Nigro (1974) 39 Cal.App.3d 506, 511 [“Since the record has been lodged
with this court and in order to prevent further waste of time, effort and money, we have
treated this matter, albeit untimely, as a petition for [writ of] mandate, reviewed the

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record and concluded that the trial court properly refused to issue a certificate of probable
cause”].) Because this is not a case involving “a felony convict who ignores the
requirements of section 1237.5 and . . . nevertheless[ seeks to] get an appellate opinion,
advisory or otherwise, discussing the merits of the contentions which he or she
improperly seeks to raise” (People v. Ballard (1985) 174 Cal.App.3d 982, 987), as
defendant attempted to comply with section 1237.5 but was told a certificate of probable
cause was not needed, we shall treat the appeal as a petition for writ of mandate but deny
the petition.
                Before accepting a guilty plea, a trial court must give the defendant the
following advisement on the record: “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).) A defendant not so
advised may moved to vacate the judgment and plea. (§ 1016.5, subd. (b).)
                To prevail on such a motion, defendant had to demonstrate (1) he “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 . . . was
prejudiced by the nonadvisement. [Citations.]” (People v. Totari, supra, 28 Cal.4th at p.
884.) We review the court‟s ruling for abuse of discretion. (People v. Limon (2009) 179
Cal.App.4th 1514, 1517-1518.)
                Because no testimony or evidence was presented and the minutes of the
1990 plea hearing did not set forth the actual advisement given regarding the immigration
consequences, defendant was “presumed not to have received the required advisement.”
(§ 1016.5, subd. (b).) The presumption was rebuttable, and the prosecution bore the
burden to prove by a preponderance of the evidence that the required advisements were
given. (People v. Dubon (2001) 90 Cal.App.4th 944, 953-954.)

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              Although a minute order provides some evidence the necessary
advisements were given, it is insufficient by itself to establish a complete advisement of
the three possible consequences of deportation, exclusion, and denial of naturalization.
(People v. Dubon, supra, 90 Cal.App.4th at p. 955.) But here additional evidence exists
in the form of the Tahl form on which defendant admits he initialed the statement
informing him of the immigration consequences.
              Defendant also concedes our Supreme Court has held that use of validly
executed Tahl forms satisfies the requirement of a knowing waiver of constitutional
rights (In re Ibarra (1983) 34 Cal.3d 277, 284-285, overruled on other grounds in People
v. Howard (1992) 1 Cal.4th 1132, 1175) and that the same rule applies to advisements
under section 1016.5 (People v. Ramirez (1999) 71 Cal.App.4th 519, 522). But he argues
a trial court must “personally examine the defendant on the record and satisfy itself that
the defendant understood the advisals and had an opportunity to discuss them with his or
her defense attorney,” quoting In re Ibarra, at p. 286 [“judge need only determine
whether [the] defendant had read and understood the contents of the form, and had
discussed them with his attorney”] and People v. Ramirez, at p. 522 [section 1016.5‟s
legislative purpose met where, inter alia, “trial court satisfies itself that the defendant
understood the advisements and had an opportunity to discuss the consequences with
counsel”].
              Defendant acknowledges the court satisfied this requirement as to the rights
to a jury trial, confront and cross-examine witnesses, and to remain silent, as “reflected in
the minute order.” But he claims the record does not show the “court satisfied itself [he]
understood the applicable immigration consequences of his plea, or that it ever asked
[him] whether the Tahl waiver form was properly explained to him by his attorney and
whether he understood the contents of the form.” On the contrary, that same minute
order indicates the court satisfied itself defendant had been advised of the consequences
of pleading guilty if he was not a citizen. That was sufficient.

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              Defendant claims otherwise because the interpreter did not certify on the
Tahl form she read the contents of the waiver form verbatim in Spanish to him and that
the minute order does not indicate she swore she read the form to him. The contention
lacks merit. Although the 1990 Tahl form did not have a place for the interpreter to sign,
she signed at the bottom, underneath the signatures of defendant and his attorney, which
the court found was the “customary way that the interpreters indicated that they have
translated the document back in that time” when the certification box was not yet on the
forms. Additionally, the minute order shows the interpreter was present and sworn to
“interpret.” in Spanish for defendant.
              Defendant maintains the interpreter was never sworn to translate the Tahl
form and may not have been competent to do so because the Evidence Code distinguishes
between interpreters and translators. According to him, “interpreters” swear an oath to
“make a true interpretation to the witness in a language that the witness understands
and . . . a true interpretation of the witness‟ answers to questions to counsel, court, or
jury, in the English language” (Evid. Code, § 751, subd. (a)), while translators pledge to
“make a true translation in the English language of any writing he or she is to decipher or
translate” (id. § 751, subd. (c)). We are not persuaded. Regardless of any distinction
between interpreters and translators, it is reasonable to infer the interpreter went over the
plea form with defendant. “[S]ubstantial, not literal, compliance with section 1016.5 is
sufficient.” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174, called into doubt on
another ground in People v. Carty (2003) 110 Cal.App.4th 1518, 1526.)
              Substantial evidence to support the court‟s finding that defendant was
advised of the immigration consequences of his plea. Therefore, the court properly
denied his motion to vacate the conviction.




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                                      DISPOSITION


              The appeal is dismissed; appeal is treated as a petition for writ of mandate.
The petition is denied.




                                                        RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




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