transcript of the plea hearing in California

2022We see no way to determine Caraveo’s eligibility other than by drawing conclusions from the transcript of the preliminary hearing in a manner that would involve the kind of factfinding that the Supreme Court forbade in Lewis, supra, 11 Cal.5th at p. 972 .

2022A trial court may rely on the record of conviction to determine whether the petitioner has made the requisite prima facie showing. ( Lewis, supra, 11 Cal.5th at pp. 970-971.) The record of conviction includes the transcript of the plea hearing. 7 (Flores, supra, 76 Cal.App.5th at p. 989; People v. Eynon (2021) 68 Cal.App.5th 967 , 976-979; see People v. Davenport (2021) 71 Cal.App.5th 476 , 481-484 .) “In the plea context, a petitioner convicted of murder is ineligible for resentencing if the record establishes, as a matter of law, that . . . the petitioner could presently be convicted of murd

2026However, the trial court continued the matter to allow it to review the transcript of the plea hearing. 3 People v. Marsden (1970) 2 Cal.3d 118 . 3 plea negotiations based on a fear of missing time in his young daughter’s life if he lost at trial.

2023(Id. at p. 971.) When the petitioner’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts “the defendant admitted as the factual basis for a guilty plea.” (People v. Gallardo (2017) 4 Cal.5th 120, 136 ; see § 1192.5, subd. (c) [court approving guilty plea must “cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea”].) The transcript of the plea hearing is also part of the record of conviction.

2023“An amendment that substantially modifies the original judgment . . . may not be made by the court under its authority to correct clerical error . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion.” (In re Candelario, supra, 3 Cal.3d at p. 705 .) Because the record does not clearly demonstrate that the purported error sought to be corrected by the August 6, 2019 order was a clerical error rather than a judicial error, it did not provide a valid basis for a nunc pro tunc order.

2022(People v. Ravaux, supra, 142 Cal.App.4th at p. 918 .) Here, the transcript of the plea hearing does not reflect any of the issues defendant now asserts; rather, it supports the court’s contemporaneous determination that defendant entered the plea freely, voluntarily, knowingly, and intelligently.

2021While section 1016.5 requires the court advise appellant of potential immigration consequences, “a validly executed waiver form is a proper substitute for verbal admonishment by the trial court. [Citation.]” (People v. Ramirez, supra, 71 Cal.App.4th at p. 521 .) The transcript of the plea hearing no longer exists, but the advisement on the change-of-plea form satisfied the section 1016.5 requirement, even if the court failed to read the advisement to appellant when he entered his plea.

2016Despite the extensive record of admonitions of the immigration consequences of the plea described above, the motion inaccurately asserted that the transcript of the plea hearing “contains no mention of immigration matters or consequences.” The motion also inaccurately asserted that defendant’s plea was not “voluntary and intelligent” because defendant’s “former attorney failed to adequately advise [defendant] that the conviction would impact his eligibility for immigration relief.” The motion stated that defendant had been detained “and is currently facing removal proceedings as a result of [h

2016Despite the extensive record of admonitions of the immigration consequences of the plea described above, the motion inaccurately asserted that the transcript of the plea hearing “contains no mention of immigration matters or consequences.” The motion also inaccurately asserted that defendant’s plea was not “voluntary and intelligent” because defendant’s “former attorney failed to adequately advise [defendant] that the conviction would impact his eligibility for immigration relief.” The motion stated that defendant had been detained “and is currently facing removal proceedings as a result of [h

2016The court took issue with defendant’s representation that, at the time he negotiated his plea, he “was informed by his attorney and the paperwork from the court,” that he could later apply for section 1203.4 relief, finding the record at the time of the plea revealed the parties “contemplated a state prison sentence for which no [section] 1203.4 relief would have been available,” and “defendant agreed[] to plead to the charge knowing that he was facing a state prison sentence.” With regard to the issue of retroactivity of statutory amendments made after entry of the plea, the court’s order ide

2016The court took issue with defendant’s representation that, at the time he negotiated his plea, he “was informed by his attorney and the paperwork from the court,” that he could later apply for section 1203.4 relief, finding the record at the time of the plea revealed the parties “contemplated a state prison sentence for which no [section] 1203.4 relief would have been available,” and “defendant agreed[] to plead to the charge knowing that he was facing a state prison sentence.” With regard to the issue of retroactivity of statutory amendments made after entry of the plea, the court’s order ide

2016(See People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 .) Here, the trial court questioned Ruvalcaba's "nebulous assertions that he felt pressure and stress" because he provided no context to these claims and there was nothing in the transcript of the plea hearing that indicated he was under overwhelming pressure.

2015The trial court, which had not taken defendant’s plea, reasoned that a Harvey waiver likely had been taken, but held the motion in abeyance so it could review the transcript of the plea hearing and defense counsel could provide a written brief on Escobar, supra, 235 Cal.App.3d 1504 before ruling.2 The record does not contain an express Harvey waiver.

2015The trial court, which had not taken defendant’s plea, reasoned that a Harvey waiver likely had been taken, but held the motion in abeyance so it could review the transcript of the plea hearing and defense counsel could provide a written brief on Escobar, supra, 235 Cal.App.3d 1504 before ruling.2 The record does not contain an express Harvey waiver.

2015(See Blakely, supra, 225 Cal.App.4th at pp. 1061-1063; see also Osuna, supra, 225 Cal.App.4th at p. 1040 ; Cervantes, supra, 225 Cal.App.4th at pp. 1011-1018; Martinez, supra, 225 Cal.App.4th at pp. 989-995.) The trial court concluded that defendant was ineligible for resentencing under the Act.

2015(See Blakely, supra, 225 Cal.App.4th at pp. 1061-1063; see also Osuna, supra, 225 Cal.App.4th at p. 1040 ; Cervantes, supra, 225 Cal.App.4th at pp. 1011-1018; Martinez, supra, 225 Cal.App.4th at pp. 989-995.) The trial court concluded that defendant was ineligible for resentencing under the Act.

2015DISCUSSION “‘Proposition 47 created a new resentencing provision, section 1170.18, under which certain individuals may petition the superior court for a recall of sentence and request resentencing.’” (People v. Smith (2015) 234 Cal.App.4th 1460, 1468-1469 .) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the 1 Statutory references are to the Penal Code. 2 The record does not include a transcript of the plea hearing.