P. v. Cifuentes CA4/1

California Court of Appeal

P. v. Cifuentes CA4/1

DecidedJuly 23, 2013

DocketD062897

StatusUnpublished

This text of P. v. Cifuentes CA4/1 (P. v. Cifuentes CA4/1) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

P. v. Cifuentes CA4/1, (Cal. Ct. App. 2013).

Pincite

Opinion

Filed 7/23/13 P. v. Cifuentes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062897

Plaintiff and Respondent,

v. (Super. Ct. No. SCD126482)

BYRON A. CIFUENTES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Timothy R.

Walsh, Judge. Affirmed.

Patrick M. Ford for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Laura A.

Glennon, Deputy Attorneys General, for Plaintiff and Respondent.

On April 18, 1997, Byron Cifuentes was charged with discharging a firearm in a

grossly negligent manner (Pen. Code,1 § 246.3; count 1) and possessing a firearm as a

1 All future statutory references are to the Penal Code unless otherwise indicated. felon (§ 12021, subd. (a)(1); count 2). Cifuentes pleaded guilty to possessing a firearm as

a felon, and the court dismissed count 1. The court granted Cifuentes three years of

probation.

Fifteen years later, Cifuentes moved to vacate the judgment and withdraw his

guilty plea under section 1016.5. He contended neither the court nor his counsel advised

him of the immigration consequences that attached to his guilty plea in 1997. The People

agreed to allow the plea to be withdrawn on the condition Cifuentes enter a guilty plea to

count 1 (which is a "strike" offense). The court granted Cifuentes's motion, and

Cifuentes entered a guilty plea to count 1 nunc pro tunc to 1997. Two days later, the

court held a chambers conference with both counsel and ultimately stayed its order

granting the motion. On May 1, 2012, the court rescinded its order. On September 25,

2012, Cifuentes moved again to vacate the judgment and withdraw his guilty plea under

section 1016.5, which a different court denied.

Cifuentes appeals, contending the court lacked jurisdiction to rescind its original

order granting Cifuentes's first section 1016.5 motion, and judicial estoppel prevents the

People from arguing the court improperly granted the motion. Cifuentes does not

challenge the denial of his motion in September 2012 on the merits. He only challenges

the May 1, 2012 order rescinding the earlier action by the trial court allowing the change

of plea.

FACTS

On May 13, 2009, Immigration and Customs Enforcement agents detained

Cifuentes and initiated removal proceedings against him. In preparation for his defense,

2 Cifuentes contacted an immigration attorney who told him an immigration judge lacks

authority to pardon a defendant in a removal proceeding if the defendant was convicted

of an aggravated felony. Thus, the immigration judge lacked authority to pardon

Cifuentes because Cifuentes pleaded guilty to count 2, an aggravated felony, in 1997.

However, if Cifuentes pleaded guilty to count 1, a nonaggravated felony, instead of

count 2, he would be in a better position to obtain relief from immigration removal.2

DISCUSSION

I

THE COURT'S ORDER IS VOID FOR LACK OF JURISDICTION

Resolution of this case is made difficult because of the confused nature of the

proceedings. Although the People opposed Cifuentes's first motion they ultimately

negotiated a new plea agreement under which Cifuentes could withdraw his plea to

count 2, on the condition that he plead to count 1, a more serious, strike offense. The

court accepted the new plea bargain, even though the original plea was in 1997, count 1

had long been dismissed and the conviction for count 2 had been dismissed under section

1203.4 years earlier.

Apparently the trial court had second thoughts about the propriety of the new plea

deal and first stayed his order and, after conferring with counsel, set aside his prior

orders, leaving the 1997 disposition in place.

2 Given the limited scope of this appeal it is not necessary to discuss the facts of the underlying offense, nor the testimony at the September 2012 hearing. 3 Neither party sought appellate review of the court's May 1, 2012 decision. It was

not until four months later that Cifuentes returned to the trial court with a second motion

under section 1016.5. That motion went to an evidentiary hearing, after which the

motion was denied. Cifuentes does not challenge the denial of the second motion on the

merits. Rather he now contends the trial court had no power set aside his order accepting

the new plea bargain.

The failure to challenge the denial of the second motion is understandable because

the record clearly shows the motion to be without merit. According to the record,

Cifuentes was advised of possible deportation consequences in the change of plea form.

As counsel advised the court at the second motion, there are repeated references in the

1997 probation report to Cifuentes's then concerns about his immigration status in light of

the conviction. The record also shows that Cifuentes was contacted by immigration

authorities in 2009 and that deportation proceedings were instituted. It was not however,

until 2012 that Cifuentes filed his first motion under section 1016.5. Thus the record of

the September 2012 hearing shows Cifuentes was informed of and aware of potential

immigration problems in 1997 and did nothing to challenge the plea until three years after

federal authorities had initiated the deportation process.

The record further shows that the problem presented at the first and second

motions was that changes in federal immigration law had created the anomaly that the

possession offense in count 2 was now considered an aggravated felony, but the more

serious, strike offense in count 1 no longer an aggravated felony. Thus in 2012, the strike

4 conviction arguably would not present the same problems for him in his current

immigration case.

Based on this record, we conclude the narrow question presented here is whether

the trial court had the jurisdiction to accept a new plea bargain, nunc pro tunc, and the

corollary question being if the court did not have the power to accept the new plea deal,

did it have the power to correct its own error. We conclude the trial court did not have

jurisdiction to set aside the plea to count 2 under a new plea agreement to accept a plea to

count 1. Since the court did not have the power to take the first action, we find it

certainly had the power to correct its error. Thus, at the time of the hearing on the second

motion the trial court had jurisdiction to make a ruling on the merits of that motion.

Cifuentes contends the court had jurisdiction to grant his motion to withdraw his

guilty plea because the motion was timely under section 1016.5. The People contend

Cifuentes's motion to withdraw his guilty plea to one charge and enter a guilty plea to a

different charge was untimely under section 1018, the court lacked jurisdiction to grant

the section 1016.5 motion because a court properly advised Cifuentes of the immigration

Free access — add to your briefcase to read the full text and ask questions with AI