The Zamudio Court also discussed a number of issues that apply not only to motions brought under Penal Code § 1016.5, but also to motions to vacate guilty pleas in general.[356]

 

[356] People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183.

STATE ADVISAL STATUTE " 1016.5 MOTION " APPEAL " CERTIFICATE OF PROBABLE CAUSE REQUIRED
People v. Placencia, ___ Cal.Rptr.3d ___, 2011 WL 1459877 (2d Dist. April 18, 2011)(certificate of probable cause was required for defendant's appeal from denial of his motion to vacate a criminal conviction under Penal Code 1016.5 on the grounds that the trial court failed to properly inform him of the immigration consequence of his plea, so appeal was dismissed as an improper attack on the validity of a plea because defendant failed to obtain a certificate of probable cause). Practice Tip: It was previously assumed from People v. Totari that a cert. of prob. cause was not required to appeal the denial of a 1016.5 motion because it was technically an order after judgment. But People v. Placencia now requires a cert. of probable cause to file an appeal after the denial of a 1016.5 motion. There appears to be an inconsistency here that may be worth arguing.

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " CERTIFICATE OF PROBABLE CAUSE NOT REQUIRED TO APPEAL TRIAL COURTS DENIAL OF PENAL CODE 1016.5 MOTION
People v. Arriaga, 58 Cal.4th 950, 169 Cal.Rptr.3d 678 (Apr. 7, 2014) (certificate of probable cause is not required to appeal order denying a motion to vacate a conviction under Penal Code section 1016.5; when proof immigration advisement is not adequately shown in the record, the prosecution must prove by a preponderance of the evidence that the advisements were given).

CAL POST CON " VEHICLES " STATE ADVISAL STATUTE " MOTION TO VACATE UNDER PENAL CODE 1016.5 " NO CERTIFICATE OF PROBABLE CAUSE TO APPEAL WAS REQUIRED
People v. Arriaga, 201 Cal.App.4th 439, 133 Cal.Rptr.3d 807 (2d Dist. Dec. 1, 2011) (We conclude that no certificate of probable cause was required, [to appeal from the denial of a motion to vacate the conviction under Penal Code 1016.5(a)].). Note: There is now a split in the courts of appeal on the question whether a certificate of probable cause to appeal is required to appeal denial of a motion to vacate under Penal Code 1016.5. Compare People v. Arriaga, ___ Cal.App.4th ___, ___, ___ Cal.Rptr.3d ___, 2011 WL 6002931 (2d Dist. Dec. 1, 2011) (We conclude that no certificate of probable cause was required, [to appeal from the denial of a motion to vacate the conviction under Penal Code 1016.5(a)].); with People v. Placencia (2011) 194 Cal.App.4th 489 (dismissing appeal because defendant failed to obtain a certificate of probable cause, as required by Penal Code 1237.5). The California Supreme Court will have to resolve this issue. In the meantime, to protect the client against a worst-case scenario, counsel should if possible obtain a certificate of probable cause to appeal in this type of case. Arriaga is the better-reasoned decision. The court there stated: Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the trial court has executed and filed a certificate of probable cause for the appeal. The court in Placencia held as a matter of first impression that section 1237.5 applies to an appeal based on the denial of a section 1016.5 motion to vacate. (Placencia, supra, 194 Cal.App.4th at pp. 494"495; see Cal. Rules of Court, rule 8.304(b).) The court's reasoning began with the established exception to section 1237.5, applied to appeals based upon grounds which arose after entry of the plea and do not challenge the validity the plea. (Placencia, at p. 493, citing People v. Johnson (2009) 47 Cal.4th 668, 678 (Johnson ); People v. Mendez (1999) 19 Cal.4th 1084, 1096.) The court held that the exception did not apply to a section 1016.5 motion, because such a motion follows a claimed failure by the trial court to advise the defendant of the immigration consequences of a plea of guilty or nolo contendere which necessarily precedes the entry of the plea and affects the validity of the plea. [Citations.] (Placencia, supra, at pp. 493"494.) The Placencia court concluded that because the exception did not apply, a certificate of probable cause was required. (Id. at pp. 494"495.) As none was filed in that case, the court dismissed the appeal. (Id. at p. 495.) FN3. Prior to Placencia, appellate courts have heard appeals from orders denying section 1016.5 motions without comment on the requirements of section 1237.5 or the issue of appealability. (E.g., People v. Gutierrez (2003) 106 Cal.App.4th 169, 172 [no certificate] (Gutierrez ); People v. Suon (1999) 76 Cal.App.4th 1, 4 [certificate obtained]; People v. Ramirez (1999) 71 Cal.App.4th 519, 521 [no certificate] (Ramirez ); People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312 [no certificate], disapproved on other grounds in Zamudio, supra, 23 Cal.4th at p. 200, fn. 8.) Defendant contends that the Placencia decision begs the question whether an exception to section 1237.5 was required in the first instance. We agree. As the Placencia court recognized, the California Supreme Court held in Totari that the denial of a section 1016.5 motion is an order made after judgment which affects the substantial rights of the defendant, and thus appealable under section 1237, subdivision (b). (Totari, supra, 28 Cal.4th at p. 887.) Under subdivision (a) of section 1237, appeals taken from a final judgment of conviction are made expressly subject to section 1237.5. There is no such condition in subdivision (b) of section 1237, for appeal from orders entered after the final judgment of conviction which affect the substantial rights of the defendant. FN4. We note that the defendant in Totari had obtained a certificate of probable cause. (See Totari, supra, 28 Cal.4th at p. 880.) However, nothing in Totari suggests compliance with section 1237.5 was a prerequisite to the appeal. Nevertheless, the Placencia holding assumes that the denial of any motion to withdraw a guilty plea is subject to the certificate requirement of section 1237.5, if the motion was based upon the invalidity of the plea. The court relied in part upon the California Supreme Court's following language in Johnson: 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. [Citation.] (Johnson, supra, 47 Cal.4th at p. 679.) In support of its holding in Johnson, the California Supreme Court cited its earlier decision in People v. Ribero (1971) 4 Cal.3d 55 ( Ribero ), where the court had held that the determinative factor [is] the substance of the error being challenged, not the time at which the hearing was conducted.... [The defendant] cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea. To hold otherwise would be to invite such motions as a matter of course, and would be wholly contrary to the purpose of section 1237.5. (Ribero, supra, at pp. 63"64, fn. omitted; Johnson, supra, at p. 679.) The conclusion drawn by the Placencia court from the holdings in Johnson and Ribero was that the defendant's labeling of the appeal as one from an order after judgment could not be allowed to circumvent the requirements of section 1237.5 and thus undermine its purpose of preventing frivolous appeals following guilty and nolo contendere pleas. (Placencia, supra, 194 Cal.App.4th at ppp.493-494.) It was not the defendant, however, who labeled the appeal from the denial of a section 1016.5 motion as an order after judgment, appealable under subdivision (b) of section 1237. It was our Supreme Court. (Totari, supra, 28 Cal.4th at pp. 886-887.) In doing so, the court unambiguously held that an order denying a section 1016.5 motion to vacate was an appealable order under section 1237, subdivision (b). (Totari, supra, at p. 887.) As we have heretofore noted, section 1237, subdivision (a), is expressly subject to section 1237.5, whereas subdivision (b) is not. In Totari, the court recognized that section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the substantial rights' of the defendant, subject only to the limitation that ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. (Totari, supra, 28 Cal.4th at p. 882, citing People v. Thomas (1959) 52 Cal.2d 521, 527.) The court held, however, that the limitation does not apply to an appeal from an order denying a statutory motion to vacate, such as a section 1016.5 motion. (Totari, at pp. 886"887.) It follows from Totari's reasoning that section 1237, subdivision (b) literally applies to the denial of a section 1016.5 motion, thus permitting an appeal that is not limited by section 1237.5. We conclude that no certificate of probable cause was required to perfect this appeal. (Id. at ___) (footnotes omitted).

CAL POST CON " VEHICLES " STATE ADVISAL STATUTE " MOTION TO VACATE UNDER PENAL CODE 1016.5 " ABUSE OF DISCRETION STANDARD
People v. Arriaga, 201 Cal.App.4th 439, 133 Cal.Rptr.3d 807 (2d Dist. Dec. 1, 2011) (affirming trial courts denial of a motion to vacate the conviction under Penal Code 1016.5(a), finding no abuse of discretion: We review the trial court's ruling for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 191.) To establish an abuse of discretion, defendant must show that it was exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.) We uphold the trial court's reasonable inferences and resolution of factual conflicts if supported by substantial evidence, viewed in the light most favorable to the ruling, and we accept the court's credibility determinations. (People v. Quesada (1991) 230 Cal.App.3d 525, 533.).

CAL POST CON " VEHICLES " STATE ADVISAL STATUTE " VAGUE MINUTES PLUS SPECIFIC TESTIMONY OF PROSECUTOR PROVIDED SUBSTANTIAL EVIDENCE THAT REQUIRED IMMIGRATION ADVISAL HAD BEEN GIVEN
People v. Arriaga, 201 Cal.App.4th 439, 133 Cal.Rptr.3d 807 (2d Dist. Dec. 1, 2011) (affirming trial courts denial of a motion to vacate the conviction under Penal Code 1016.5(a), where minute order stating that the defendant was advised of the possible effects of his plea on any alien/citizenship/probation/parole status. plus specific testimony of prosecutor that it was his habit and custom always to deliver a specific advisement that was sufficient under the statute constituted substantial evidence that the required advice was given sufficient to overcome the rebuttable presumption that it had not been given arising from the courts failure to keep a record that a sufficient advisal had been given); cf. People v. Dubon (2001) 90 Cal.App.4th 944, 955 (minute order stating that the defendant was advised of the possible effects of his plea on any alien / citizenship / probation / parole status. provides some evidence that the required [Penal Code 1016.5] advisements were given, [but] it is insufficient, without more, to establish a complete advisement of the three possible consequences: deportation, exclusion, and denial of naturalization).

Other

CAL POST CON " MOTION TO VACATE UNDER PENAL CODE 1016.5 " NO CONSTITUTIONAL RIGHT TO COURT-APPOINTED APPELLATE COUNSEL
People v. Serrano, 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706 (6th Dist. Nov. 28, 2012) (defendant appealing from denial of post-conviction motion to vacate conviction under Penal Code 1016.5(a), was not entitled to an independent review of the case by the court of appeals, after appellate counsel filed a no-issues brief, because there was no constitutional right to court-appointed appellate counsel).

STATE ADVISAL STATUTE " 1016.5 MOTION " APPEAL " CERTIFICATE OF PROBABLE CAUSE REQUIRED
People v. Placencia, 122 Cal.Rptr.3d 922, 194 Cal.App.4th 489, 2011 WL 1459877 (2d Dist. April 18, 2011)(certificate of probable cause was required for defendant's appeal from denial of his motion to vacate a criminal conviction under Penal Code 1016.5 on the grounds that the trial court failed to properly inform him of the immigration consequence of his plea, so appeal was dismissed as an improper attack on the validity of a plea because defendant failed to obtain a certificate of probable cause). Practice Tip: It was previously assumed from People v. Totari that a cert. of prob. cause was not required to appeal the denial of a 1016.5 motion because it was technically an order after judgment. But People v. Placencia now requires a cert. of probable cause to file an appeal after the denial of a 1016.5 motion. There appears to be an inconsistency here that may be worth arguing.