California Court of Appeal Jul 10, 2014 No. B253562Unpublished
Filed 7/10/14 P. v. Mascorro CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B253562
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA126558) v.
IRMA ANGELICA MASCORRO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Laura R.
Walton, Judge. Affirmed.
Alan Stern, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant, Irma Angelica Mascorro, appeals from the trial court’s
order denying her motion to withdraw her plea of no contest to assault by means of force
likely to produce great bodily injury, a felony, on the ground that at the time she entered
the plea she had not been properly advised of the immigration consequences. We affirm
the trial court’s order.
BACKGROUND
On March 7, 2013, Mascorro was charged by information with two crimes, assault
by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)),1
a felony, and making criminal threats (§ 422). At proceedings held on March 21, 2013,
Mascorro decided to waive her right to a trial and enter a plea of nolo contendere to the
assault charge. In exchange for her plea, the charge of making terrorist threats would be
dismissed and she would be granted probation, one condition of which would be that she
serve 365 days in county jail.2
After the prosecutor advised Mascorro of her right to a trial, her right to confront
and cross-examine the witnesses against her, her right to subpoena witnesses and present
a defense, her right to testify in her defense and her right against self-incrimination,
Mascorro indicated she understood those rights and was willing to waive them in order to
accept the plea bargain.
1 All further statutory references are to the Penal Code unless otherwise indicated. 2 At the same proceedings, Mascorro’s codefendant, Lisbeth Natalie Chaves, entered a plea of no contest to the misdemeanor of receiving stolen property (§ 496, subd. (a)).
2
The prosecutor then stated: “Additionally, please listen carefully. If you are not a
citizen of the United States, your plea will lead to deportation, exclusion from the United
States, and/or denial of naturalization, re-entry or amnesty.” 3
After explaining to Chavez that her sentencing proceedings would be held at a
later date, the prosecutor asked: “Finally––all right. Ms. Mascorro and Ms.Chaves, do
you have any questions?” Chavez, then Mascorro, each responded, “No.” After the trial
court indicated it did not wish to “make further inquiry” and the prosecutor could “take
the plea,” the prosecutor asked Mascorro, “to the charge alleged in count 1, [a] violation
of . . . section 245[, subdivision] (a)(4), a felony, how do you plead?” Mascorro
responded, “No contest.” When the prosecutor then asked if counsel “join[ed] in the
waivers, concur[red] with the plea, and stipulate[d] pursuant to People [v.] West and the
continuing viability of the police report and the preliminary hearing transcript,” counsel
for Mascorro responded, “Yes.”
3 By advising Mascorro of these consequences to the entry of her plea, the prosecutor was acting in compliance with section 1016.5, which provides in relevant part: “(a) Prior 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 . . . , 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. [¶] (b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If, . . . the court fails to advise the defendant as required by this section . . . the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere . . . .”
3
Pursuant to her plea agreement, the trial court suspended imposition of sentence
and granted Mascorro three years formal probation, one condition of which was that she
serve 365 days in county jail. The trial court then awarded Mascorro presentence custody
credit for 71 days actually served and 71 days of good time/work time, for a total of 142
days.
On September 18, 2013, Mascorro filed a “Notice of Motion and Motion to
Withdraw [Her] Plea Pursuant to . . . [Section] 1016.5.” Although the transcript of the
plea proceeding indicates the prosecutor advised Mascorro that, if she were not a United
States citizen, her plea could “ ‘lead to deportation, exclusion from the United States,
and/or denial of naturalization, re-entry or amnesty[,]’ ” Mascorro states in her
declaration “she did not [hear] anything about getting deported, and nobody made sure
that she understood that consequence of her plea.” In addition, Mascorro claims she
“attempted to ask a question more than once and she was shut down by the interpreter[,]
[who told] her to ‘be quiet’ and ‘not to interrupt’ [and] after that she became afraid to ask
any question[s].” Finally, Mascorro states she was “unaware of the immigration
consequences [of her] plea” and “[i]f she had been aware that this conviction would
forever preclude her from becoming a United States citizen and that she would face
permanent banishment from the United States, she would have requested that her lawyer
try to construct a settlement that would not have [had] such severe and final
consequences. In fact, . . . [she claims] she asked her attorneys to interview and summon
two percipient witnesses that could have possibly testif[ied] on her behalf. Instead, her
attorney . . . threatened her and scared her” and told her “[t]hat if she didn’t accept [the]
4
offer, she would get seven (7) years in prison . . . .”4 “Based [on] the foregoing, . . .
Mascorro . . . request[ed] that the Court allow her to withdraw her plea[] of Nolo
Contendere . . . and enter a plea of not guilty.”
The trial court considered Mascorro’s motion at a hearing held on October 29,
2013. After hearing argument by the parties, the trial court denied the motion, finding
that, when the prosecutor had addressed Mascorro, he had properly advised her of “all of
the consequences” of her plea. The court continued, noting the prosecutor had stated:
“ ‘[A]dditionally, please listen carefully. If you are not’––not may, but, ‘if you are not a
citizen of the United States’––‘a citizen of the United States,’ excuse me, ‘your plea will
lead to deportation, exclusion from the United States, and/or denial of naturalization, re-
entry or amnesty.’ ” The trial court indicated the prosecutor then, after advising
Mascorro of other consequences of her plea, had asked, “ ‘Ms. Mascorro . . . , do you
have any questions?’ ” and Mascorro had responded, “ ‘No.’ ” The trial court concluded,
under these circumstances “the advisement [had been] properly given.” The court noted
it could not “go into what occurred with [Mascorro and] her attorney, or for that matter,
with the interpreter. The interpreters’ oaths are on file. The court assumes that the
interpreter is interpreting properly.”
4 Here, Mascorro pleaded to a violation of section 245, subdivision (a)(4). That section provides in relevant part: “Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year . . . .” If, however, Mascorro had gone to trial and the court or jury had also found her guilty of making terrorist threats in violation of section 422, she could have been sentenced to a consecutive term of “16 months, or two or three years in the state prison.” (§ 18, subd. (a).)
5
Mascorro filed a timely notice of appeal from the trial court’s order on
December 19, 2013. Her request for a certificate of probable cause was granted the same
day.5
CONTENTIONS
After examination of the record, counsel appointed to represent Mascorro on
appeal filed an opening brief which raised no issues and requested this court to conduct
an independent review of the record.
By notice filed April 30, 2014, the clerk of this court advised Mascorro to submit
within 30 days any contentions, grounds of appeal or arguments she wished this court to
consider. In a letter filed May 30, 2014, Mascorro asserted the trial court erred when it
denied her motion to withdraw her plea. She stated: “No one told me that I was going to
be deported if I pled Guilty or No Contest to the charge I was being accused of. When I
was in front of the judge, everything was very confusing, with the prosecutor speaking in
English, the interpreter speaking in Spanish at the same time, and the Public Defender
telling me to respond ‘yes’ to the questions. When I wanted to ask a question the
interpreter first ignored me and then told me to ‘be quiet, and to not interrupt.’ [¶] If the
purpose of . . . section 1016.5 is to insure [sic] that the defendant is aware of the
consequences of his/her plea, can the appellate [c]ourt find as a matter of law, that
5 The order is appealable pursuant to section 1237.5 which provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where . . . : [¶] (a) [t]he defendant has filed with the trial court a written statement . . . showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings [and] [¶] (b) [t]he trial court has executed and filed a certificate of probable cause . . . .”
6
under the circumstances described here and in my Motion that was denied back in
October 2013, my plea was intelligent, voluntary and with knowledge and
understanding of the consequences?” (Bold in original.)
Mascorro’s contention she was not properly advised of the immigration
consequences which could occur if she pled guilty or no contest to the crime of assault by
means of force likely to produce great bodily injury is without merit. The record
indicates the prosecutor specifically advised Mascorro that, if she were not a United
States citizen, entry of her plea would lead to “deportation, exclusion from the United
States, and/or denial of naturalization, re-entry or amnesty.” A short time later in the
proceedings, when the prosecutor asked Mascorro if she had any questions regarding the
terms of her plea, she responded, “No.” “[W]e presume the court reporter accurately
reported the proceedings.” (People v. Anzalone (2013) 56 Cal.4th 545, 552, fn. 6; People
v. Ayala (2000) 23 Cal.4th 225, 289.) If Mascorro had been confused or had questions
regarding the consequences of her plea, it is not reflected in the record.
A defendant’s claim of error must be corroborated by independent, objective
evidence. (In re Alvernaz (1992) 2 Cal.4th 924, 938, 945.) No such evidence exists here.
Instead, after being clearly advised that if she were not a United States citizen her plea
could result in deportation, exclusion from the United States and denial of naturalization,
re-entry or amnesty, Mascorro pled no contest to the alleged assault. Under these
circumstances, we conclude the plea was intelligent, voluntary and made with knowledge
and understanding of the immigration consequences.
7
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
We concur:
KLEIN, P. J.
ALDRICH, J.
8
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly denied the defendant's motion to withdraw her plea because the record demonstrated she was adequately advised of the immigration consequences of her no contest plea as required by Penal Code section 1016.5.
Issues
Whether the trial court erred in denying the defendant's motion to withdraw her plea based on a claim of inadequate advisement of immigration consequences.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Mascorro’s contention she was not properly advised of the immigration consequences which could occur if she pled guilty or no contest to the crime of assault by means of force likely to produce great bodily injury is without merit.”
“Under these circumstances, we conclude the plea was intelligent, voluntary and made with knowledge and understanding of the immigration consequences.”