Wednesday, April 2, 2008

Felony Child Abuse in California DUI results in Deportation

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Filed 4/2/08 P. v. Bystrova CA4/1


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Plaintiff and Respondent,



Defendant and Appellant.
(Super. Ct. No. SCD198622)

APPEAL from an order of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.

In December 2005, Elena Bystrova, a Russian citizen and a lawful permanent resident of the United States, drove with a blood alcohol level of .08 percent or higher, with her nine-year-old child in the car . In May 2006, Bystrova entered a negotiated guilty plea to misdemeanor driving with a blood alcohol level of .08 percent or more with a prior conviction of a similar offense (Veh. Code, §§ 23152, subd. (b), § 23540) and felony child abuse (Pen. Code, § 273a, subd. (a)).1 In July the court placed Bystrova on five years' probation. In August the United States commenced proceedings to deport Bystrova to Russia.

In October 2006 Bystrova filed a petition for writ of error coram nobis, a memorandum of points and authorities in support of motion to withdraw guilty plea or writ of error coram nobis, and a declaration. She claimed that before she entered the plea, her attorney did not advise her that willfulness was an element of felony child abuse and a conviction would result in her deportation. She requested the court vacate the probation grant and allow her to withdraw her plea. The People did not file opposition. The superior court construed Bystrova's petition as a motion to withdraw the plea and denied it. Bystrova appeals, contending the court erred by denying the motion because she entered her plea through inadvertence, ignorance, and without knowledge of all the facts, and the court erred by failing to grant her a hearing on the motion and petition. We affirm.


The record shows the following factual basis for Bystrova's plea. The change of plea form states, "I drove with a blood alcohol level of .08% or higher. I did unlawfully place a child in a situation where his or her health was endangered." At the change of plea hearing, the court asked Bystrova, "Are you pleading guilty . . . because . . . you operated a motor vehicle with a blood alcohol level in excess of 0.08 percent or higher, and you unlawfully placed a child in a situation where his or her health was endangered by your conduct; is that right?". Bystrova said, "Yes."


The record does not disclose whether the trial court suspended imposition of sentence, or suspended execution of sentence. In the former case, Bystrova's request for relief would be governed by section 1018. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) Section 1018 allows a motion to withdraw a guilty plea "at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended." While section 1018 is to "be liberally construed to . . . promote justice" (ibid.), to prevail on a motion to withdraw a guilty plea the defendant must make a showing of good cause by clear and convincing evidence (People v. Wharton (1991) 53 Cal.3d 522, 585). "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment [including] inadvertence, fraud or duress." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) "A plea may not be withdrawn simply because the defendant has changed [her] mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) The denial of a withdrawal motion will not be reversed absent an abuse of discretion. (Ibid.)

"Although section 1018 is limited on its face to the period before judgment, the courts have long permitted defendants to move to set aside the judgment as a means of allowing the defendant to withdraw the guilty plea after judgment." (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) Thus, if the court here suspended execution of sentence, Bystrova still would be required to show good cause by clear and convincing evidence, and denial of the requested relief would be evaluated for an abuse of discretion. (Ibid.)

A motion to set aside a judgment is similar in scope and effect to a petition for writ of error coram nobis. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) "A writ of coram nobis 'will properly issue only when the petitioner can establish three elements:

(1) that some fact existed which, without his fault or negligence, was not represented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]' " (People v. Ibanez (1999) 76 Cal.App.4th 537, 544-546 ) "Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel [citation] or where the claim is that the defendant did not receive effective assistance from counsel [citations]." (People v. Gallardo, supra, 77 Cal.App.4th at pp. 982-983.)

As to both prongs of her contention─immigration consequences and the willfulness element of child abuse─Bystrova frames her argument in terms of trial counsel's lack of advisement rather than misadvisement, and characterizes this as ineffective assistance of counsel. The California Supreme Court has held "that affirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel," but has expressly declined to "address whether a mere failure to advise could also constitute ineffective assistance." (In re Resendiz (2001) 25 Cal.4th 230, 240.) The trial court here concluded that because Bystrova's claim was one of ineffective assistance of counsel, coram nobis did not lie, and she had not shown the prejudice necessary to prevail on an ineffectiveness claim underlying a motion to withdraw the plea because there was no misadvice by counsel and the change of plea form set forth the immigration consequences.

We agree that Bystrova has not shown ineffective assistance of counsel. She has not demonstrated prejudice from counsel's asserted failure to advise her of immigration consequences, and she has not demonstrated he failed to act in a manner expected of a reasonably competent attorney by his asserted failure to tell her that willfulness was an element of felony child abuse. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Furthermore, the record demonstrates the court did not abuse its discretion by declining to find Bystrova was operating under mistake, ignorance, inadvertence, fraud, duress, or other factor preventing her from exercising her free judgment.

Bystrova's change of plea form stated, under the heading "CONSEQUENCES OF PLEA OF GUILTY OR NO CONTEST," "I understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my removal/deportation . . . ."2 Bystrova initialed the box next to that statement. She also initialed the box next to the statement, "I declare under penalty of perjury that I have read, understood, and initialed each item above . . . and everything on the form . . . is true and correct." Bystrova signed the form just under the latter statement. Her attorney signed a statement that he had "personally read and explained to the defendant the entire contents of this plea form . . . . I discussed all charges and possible defenses with the defendant, and the consequences of this plea, including any immigration consequences. I personally observed the defendant fill in and initial each item, or read and initial each item to acknowledge his/her understanding and waivers. I observed the defendant date and sign this form . . . . I concur in the defendant's plea and waiver of constitutional rights." The court signed a statement indicating its finding that "the defendant understands the . . . consequences of this plea . . . ."

At the change of plea hearing, the court said, "My understanding is you went over this change of plea form, as well as this yellow DUI addendum[3] with your lawyer, you initialed the appropriate boxes and you signed each of these forms, indicating to me that you understood everything on each of these forms . . . is that all true?" Bystrova replied, "Yes." The court also said, "If you're not a U. S. citizen, you will be deported, excluded from admission into the United States, and denied naturalization. [¶] Do you understand that?" Again, Bystrova said, "Yes." The court proceeded with the guilty plea.

Just as the record belies Bystrova's claim that trial counsel failed to advise her of the immigration consequences of her plea,4 it compels us to reject her claim that he failed to advise her that willfulness was an element of felony child abuse,5 and her related claim that "the trial court failed to investigate the factual basis for the plea." At the change of plea hearing, the court asked, "Are you pleading guilty . . . because . . . you operated a motor vehicle with a blood alcohol level in excess of 0.08 percent or higher, and you unlawfully placed a child in a situation where his or her health was endangered by your conduct; is that right?". Bystrova said, "Yes." The court then found "a satisfactory factual basis." The change of plea form contains counsel's statement that he had "discussed all charges and possible defenses with the defendant . . . ." and the court's finding that "the defendant understands the nature of the charges" and "there is a factual basis for [the plea]." ''The law does not require that an express discussion of the elements of the offense be contained in the transcript nor even an express statement that the elements have been discussed with counsel." (People v. Dolliver (1986) 181 Cal.App.3d 49, 61.)

In her opening brief, Bystrova argues that "given her extremely high blood alcohol level (.32%), 'willfulness' should have been a significant evidentiary issue, if not a possible defense." The record does not reflect Bystrova's blood alcohol level, other than that it was at least .08 percent. The statement of facts in the opening brief also mentions the .32 percent figure and the entire statement of facts is unsupported by citations to the record. In a footnote, counsel says the "statement of facts is derived from the probation officer's report filed in connection with the probation hearing and sentencing." The probation officer's report is not part of the appellate record. In any case, where section 273a, subdivision (a) involves "indirect infliction of harm," the willfulness element is simply criminal negligence. (People v. Valdez (2002) 27 Cal.4th 778, 781; cf. People v. Sargent (1999) 19 Cal.4th 1206, 1224 [in the case of direct infliction, criminal negligence is insufficient].) Even a .32 percent blood alcohol level would not have negated Bystrova's criminal negligence.

Finally, the court was not required to hold a live evidentiary hearing on Bystrova's motion and petition.6 (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 201

(Zamudio).) In Zamudio, the People petitioned for writ relief after the trial court granted the defendant's section 1016.5 motion to withdraw his no contest plea. (Zamudio, supra, at p. 188.) The defendant had submitted a declaration by his immigration attorney, and at the hearing on the motion, the trial court had denied the People's request to make an offer of proof and for an evidentiary hearing on two factual issues, and found no information regarding immigration issues in an in camera review of files obtained pursuant to the People's subpoena duces tecum. (Id. at p. 190.) In affirming the trial court's grant of the motion to withdraw the plea, the California Supreme Court stated: "Petitioner cites no authority specifically requiring courts to hold live evidentiary hearings on section 1016.5 motions or, more generally, on plea withdrawal motions. On the other hand, California law affords numerous examples of a trial court's authority, in ruling upon motions, to resolve evidentiary disputes without resorting to live testimony. . . . [Citations.]" (Id. at p. 201.) " 'There is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony.' [Citation.]" (Ibid.)

Here, Bystrova's own declaration was the only evidence she presented. She never sought to present live testimony─or any further evidence─in the trial court, but claims she was denied her due process right "to present sufficient evidence to meet her evidentiary burden." Even now, she does not say that she would have presented any live testimony, aside from her "likely" testimony repeating the statements in her declaration concerning her ignorance of the immigration consequences and counsel's failure to discuss them with her. Similarly, she complains she "was unable to argue her position to the court" because she was denied the due process of a hearing, but does not say what she would have argued that was not in the documents she filed.

Bystrova attempts to distinguish Zamudio, supra, 23 Cal.4th 183 on the basis that it involved an assertion by the People, rather than by the defendant, of the right to a live evidentiary hearing. This attempt is unavailing. All of the cases cited in Zamudio as examples of a trial court's authority to resolve evidentiary disputes without live testimony involved motions by criminal defendants. (Id. at p. 201, citing People v. Cox (1991) 53 Cal.3d 618, Garcia v. Superior Court (1984) 156 Cal.App.3d 670, and People v. Eastman (1944) 67 Cal.App.2d 357.)

The trial court did not abuse its discretion by denying Bystrova's motion and writ petition.


Order affirmed.





1 All further statutory references are to the Penal Code.

2 This statement complies with section 1016.5, subdivision (a), which states:

"Prior to acceptance of a plea of guilty . . . 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."

3 The change of plea form, reporter's transcript of the change of plea hearing, and three minute orders were added to the record on appeal by an order of this court granting Bystrova's motion to augment the record with the copies of those documents attached to the motion. There is no addendum attached to the change of plea form Bystrova submitted with her motion.

4 In support of the argument that Bystrova was ignorant of the immigration consequences of her plea, the opening brief asserts the plea occurred "at the very first settlement conference" and refers to her employment and the length of time she has lived in the United States. These assertions of fact are unsupported by citations to the record, and, indeed, these matters do not appear in the record.

5 Section 273a, subdivision (a) provides: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."

6 Apparently, the matter was calendared for November 28, 2006, but on November 29 was "forwarded to the writs department."

Apparently, defendant was not pleased with this San Diego California DUI attorney.