Metropolitan News-Enterprise


Friday, August 9, 2002


Page 3


Supreme Court Holds Denial of Motion to Vacate Plea Because of Immigration Consequences Appealable


By a MetNews Staff Writer


The denial of a statutory motion to withdraw a guilty or no contest plea on the ground that the defendant was not advised of the potential immigration and citizenship consequences is an appealable order, the state Supreme Court ruled yesterday.

In a unanimous decision, the justices said Zuheir Anis Totari is entitled to appeal the denial of his motion under Penal Code Sec. 1016.5. The statute requires that before a plea of guilty or no contest may be accepted, the defendant must be advised by the court that if he or she is not a U.S. citizen, the plea could result in deportation, exclusion, or denial of naturalization.

The law also grants a defendant who was not given the required advisement to withdraw his or her plea.

Totari is an Israeli citizen who came to this country in 1976 and was convicted of possession of methamphetamine and check fraud after pleading guilty in 1985. He was ordered to serve three years on probation, but was granted early termination and had his convictions expunged.

In 1998, however, he was deported. He then moved to vacate his convictions, saying he had been separated from his wife and children as a result of being deported, and that he had believed he could not be deported on the basis of the convictions because they had been expunged.

Since he had not been advised pursuant to Sec. 1016.5, he asserted, he was entitled to have the convictions vacated.

Santa Clara Superior Court Judge Kevin J. Murphy denied the motion on the ground the defendant waited too long to bring it. The Sixth District Court of Appeal ruled that the order was not appealable and dismissed Totari’s appeal.

But Justice Ming Chin, writing for the high court, disagreed.

The state argued that the long delay in filing the motion required the court to find that the denial was not appealable. But Chin rejected the contention that the appellate court must reach the merits in order to determine the appealability of a denial.

The right to appeal, Chin said, is not dependent on a determination that the defendant has a chance of winning. Such a rule, he said, “could potentially produce inconsistent and conflicting factual findings within the same case.”

Chin elaborated:

“For example, assume the trial court, in this case or any other case, had made an express finding that defendant knew of the immigration consequences at the time of the plea.   If a reviewing court makes a de novo determination that defendant did not know of the immigration consequences at the time of the plea and finds the case appealable, that same court would then have to defer to the trial court’s factual finding if supported by substantial evidence. .  In other words, the Attorney General proposes a rule that would require the reviewing court to use different standards of review for the procedural and substantive questions, which may lead to different results in the same case.”

The case is People v. Totari, 02 S.O.S. 4152.


Copyright 2002, Metropolitan News Company