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Name: Peopel v. Arriaga
Case #: B225443
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 12/01/2011
Subsequent History: Rev. granted: 2/22/12: S199339

A certificate of probable cause is not necessary when an appeal is from the denial of a motion to vacate a judgment based on a plea of guilty. The motion to vacate a judgment entered in 1986 was made on the basis that the defendant was not adequately advised of the potential immigration consequences of his plea. The appeal of denial of a motion made pursuant to Penal Code section 1016.5 is an appeal from an order made after judgment pursuant to Penal Code section 1237, subdivision (b). This opinion disagrees with People v. Placencia (2011) 194 Cal.App.4th 489, 495, from Div. 6 of the same appellate district, which held that the motion attacks the validity of the plea and requires a certificate of probable cause in order to perfect the appeal.

A preprinted minute order stating the defendant was advised of possible effects of the plea on any alien or citizenship status and testimony from the prosecutor who appeared on that calendar and gave a detailed recitation of the advice he gave in 99.9 percent of the cases met the prosecution’s evidentiary burden, by a preponderance of the evidence, that the required advice was given. The prosecution’s burden did not include proof that the defendant did not need an interpreter when the issue was raised for the first time on appeal. The requirement of Penal Code section 1016.5 that the “court” administer the advice is not so narrow as to require the advice from the judge. The delegation to the prosecutor was not error. The reasonable inferences and resolution of factual conflicts in this case did not result in an abuse of discretion.