Filed 1/6/20 P. v. Martinez-Ayala CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRENDA MARTINEZ-AYALA,

Defendant and Appellant.

A156113

(Solano County

Super. Ct. No. FCR323678)

Defendant Brenda Martinez-Ayala (appellant) pled no contest to one count of pandering by encouraging another person to become a prostitute and received a stipulated four-year prison sentence. (Pen. Code, § 266i, subd. (a)(2).) When she was due to be released on parole, she was detained by the United States Immigration and Customs Enforcement (ICE). She filed a motion to vacate the plea based on the court’s failure to advise her of immigration consequences under section 1016.5, and contends the order denying the motion must be reversed because: (1) the trial court did not adequately explain the immigration consequences of the plea as required by section 1016.5; (2) her trial attorney provided ineffective assistance of counsel; and (3) the judge should have recused himself from hearing the motion because he presided over the change of plea hearing. We affirm.

I. FACTS AND PROCEDURAL HISTORY

A. Background

Appellant was born in Mexico and was brought to the United States illegally as a three-month-old infant. She has lived here continuously and gave birth to a son in 2010.

Appellant’s boyfriend and the father of her child, Jesus Rodriguez, used Facebook to contact two separate undercover police officers—Detectives Miller and King— who were posing as 16- and 17-year-old prostitutes. He asked both officers to work as prostitutes for him and offered to serve as their pimp. Appellant contacted Detective King on Facebook and told her Detective Miller had more “game” and was going to take her place. She sent King a video of Rodriguez talking about Miller sending him money, and told King if she also sent money, Rodriguez would “pick her up.” Detective Miller sent a $500 “pimping fee” wire transfer to Rodriguez, and appellant and Rodriguez collected the money at a Walmart. A few days later, appellant and Rodriguez drove to a location to pick up the two supposed prostitutes, but they were arrested instead.

B. Charges and Plea

An information was filed charging appellant with attempted pimping of a minor 16 years of age or older (§ 664/266h, sub. (b)(1)), human trafficking of a minor for a commercial sex act (§ 236.1, subd. (c)(1)), and pandering by encouraging another person to became a prostitute (§ 266i, subd. (a)(2)). On March 30, 2017, she pled no contest to the attempted pimping of a 16 year old, which was designated count 2 of the information, in exchange for a stipulated sentence of four years. (§ 664/266h, sub. (b)(1).)

At the change of plea hearing, the court advised appellant of her constitutional rights under Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl). It did not orally advise appellant that her conviction might affect her immigration status when it accepted her plea. The written change of plea form provided, “If I am not a citizen of the United States, a conviction of this offense to which I am now entering a plea may, and with certain offenses will, result in my deportation from this country, exclusion from admission to the United States, and/or a denial of naturalization pursuant to the laws of the United States. If represented by an attorney, I have discussed this with my attorney and I know whether or not conviction for this offense requires mandatory deportation and exclusion.” Appellant signed the form and initialed the section of the form containing this paragraph. She indicated at the change of plea hearing that she had gone over the form with her lawyer.

Sentencing was scheduled for April 28, 2017. On that date, defense counsel stated he had made a mistake in that the parties had intended appellant to plead no contest to the pandering charged in count 5 of the information, an offense for which sex offender registration was not required, and that she had mistakenly pled to count 2. (§ 290, subd. (c).) The court modified the plea form to replace the reference to “count 2” with a reference to “count 5,” had appellant sign and date the form again, ascertained that appellant had gone over the form with her attorney, re-advised her of her Boykin-Tahl rights, vacated the previous plea, and accepted the substitution of a no-contest plea to pandering under section 266i, subdivision (a)(2). The court imposed a four-year prison sentence as agreed. It did not orally advise appellant of the immigration consequences of her plea.

C. ICE Detainer

When appellant was due to be paroled on or about April 14, 2018, she was detained in federal custody by ICE and was transferred to its holding facility to await removal proceedings. It is uncontested that her conviction for pandering is a crime of moral turpitude which adversely affects her admissibility and her eligibility for immigration relief under federal law. (8 U.S.C. § 1182(a)(2)(A)(i)(I).)

D. Motion to Vacate under section 1016.5

On August 20, 2018, appellant filed a motion to vacate her plea under section 1016.5. In her declaration in support of her motion, appellant alleged she was not properly advised of the immigration consequences of her plea and would not have accepted the plea deal had she been so advised. She noted that the court did not mention immigration consequences at her change of plea hearings(s). She also alleged that her defense attorney, Gilbert B. Vega, had failed to competently advise her of the potential immigration consequences of taking the deal, had told her she was facing 50 years in prison, and had urged her to take the plea agreement, telling her it was a great deal.

Appellant also presented a declaration by immigration attorney Kristina McKibben, who stated that a conviction of section 266i, subdivision (a)(2) could be a basis for indefinite immigration detention as well as a bar to obtaining immigration relief or returning to the United States if removed. Appellant might have been eligible for humanitarian relief available to victims of a crime who assist law enforcement, based on her assistance to law enforcement when she had suffered domestic violence at her codefendant’s hand (a “U visa”), but her conviction of a crime of moral turpitude would almost certainly preclude this.

The prosecution opposed the motion, arguing the written change of plea form had sufficiently advised appellant of the immigration consequences of her plea and appellant had failed to establish she would not have entered her plea with additional advisements. It attached the declaration of attorney Vega, who stated that appellant had told him during their first meeting that she was in the country illegally and he had advised her that a plea to any of the charges would likely result in deportation. He repeated this advice during subsequent meetings with appellant, who was concerned with her immigration status. When appellant entered the plea, Vega went over the change of plea form with her and told her she would likely be deported but had a better chance of reentry if she did not have to register as a sex offender. Vega denied telling appellant her exposure was 50 years, and he calculated her maximum sentence as about 22 years’ imprisonment.

Vega stated in his declaration that he had consulted with Luis Cespedes, an immigration attorney, who confirmed that a plea to any of the charges would likely result in deportation. In a declaration submitted with the reply papers, Cespedes indicated he did not recall the conversation and had no notes regarding someone with appellant’s name; he would not have provided conclusory advice regarding a plea based solely on a phone call.

E. Hearing

A hearing was held on the motion, which was also deemed to be a petition for writ of habeas corpus based on ineffective assistance of counsel. Vega testified that he was familiar with section 1016.3, which imposes a duty on defense counsel to advise a client about the immigration consequences of a proposed disposition. He understood that defense counsel and the court had a duty to advise a defendant concerning immigration consequences; although statutory language required prosecutors to consider immigration consequences during plea bargaining (see § 1016.3, subd. (b)), they were not required to make a plea deal that avoided deportation. Vega reviewed the Continuing Education of the Bar (CEB) book on Criminal Procedure to familiarize himself with immigration law issues.

Appellant and Vega first met for an hour and five or ten minutes and he asked her about her status. She told him she was in the country illegally and Vega warned her the charges were aggravated felonies, and were very serious and very likely to result in her deportation. During their second meeting, the subject of deportation again came up and Vega advised appellant the charges would “jam [her] up” and that unless the People charged an alternative crime (which he had “a hard time thinking of what could be charged”), she was “very[,] very likely, highly likely” to be deported. Although it was his understanding an attorney could not say deportation was ever a certainty, Vega used several phrases to convey it was “very likely, highly likely, I think I used several phrases to try to convey to her that it’s very likely you’re gonna be deported and not allowed back in and that you’ll have a hard time becoming a U.S. Citizen in the future, which are the three prongs that immigration lawyers or defense attorneys really practice to make sure the defendant understands.”

Vega also discussed immigration consequences at their third meeting, which lasted 40 to 45 minutes. “I got the impression that she, like many of my clients, ask the same question multiple times to try to get a different answer. That’s the feeling I got from her and I very firmly, very clearly explained to her I said, Ma’am, it’s very likely if you plead to any of these or convicted of any of these, you will be deported. It’s very very likely it’s gonna happen. And there are a few things I remember specifically telling her, there are a few things that can happen to prevent this. And I also explain[ed] to her that it’s gonna be hard to get back in the country and she, because she was very worried about seeing her family understandably, and I also explained to her it would be hard to become a naturalized U.S. citizen.” Vega told her it would be “difficult, very very unlikely to become a naturalized citizen.” There was no certainty and he didn’t advise in terms of absolute certainty because “it’s not proper law.” Appellant asked about immigration several times and he used words like “potentially very likely, variations of that.” He told her there was a “strong, strong possibility” a plea would “result in deportation, deny naturalization, and result in inability to reenter into the United States.”

Vega spoke with attorney Cespedes to confirm what he already suspected—that a conviction of any of the charged crimes would have immigration consequences. They had a brief telephone conversation in which Vega did not give appellant’s name, and during which Vega told Cespedes he had a female who did not like the answers he was giving her and he wanted to be sure he was not missing anything. Vega asked whether it would be beneficial to not have a sex offender registration requirement when appellant tried to reenter the country. Cespedes said “its not a negative” not to have a registration requirement, but it was still very difficult to enter the country or be naturalized. Vega told appellant that not having a sex offender registration requirement “doesn’t hurt your reentry, it may help it. I was very, very clear to use the subjunctive it may help it, but it’s still very difficult to get back into the country.”

Vega considered the possibility of a defense for battered spouses because he knew Rodriguez was abusive. But the evidence against appellant was strong and he thought it would not have been viable in front of a jury. Appellant had originally denied the existence of the strongest evidence against her and Vega would not have put her on the stand because “she had a hard time with the truth.” He tried to secure an “immigration safe” plea deal for appellant, but had a hard time coming up with a charge that would satisfy the district attorney and not trigger deportability. Vega recommended that appellant plead to pandering, thinking it was the best resolution they could get in this matter, even though he knew (and advised her) it was likely she would be deportable, likely she would not be allowed to reenter the country, and likely she would be denied naturalization. He thought the evidence against appellant was very strong. When they filled out the plea form he reiterated that appellant was most likely to be deported and that reentry was not impossible but would be very difficult. Vega told appellant the plea may result in deportation, denial of naturalization, and denial of re-entry.

Attorney McKibben testified as a defense expert that because appellant had never been officially admitted to the country, the issue was admissibility, not deportation. The sex offender registration status would not have affected appellant’s entitlement to relief. Appellant would have been eligible to apply for a U Visa as a victim of a crime, but it could take up to eight years to secure such a visa after being placed on a wait list and it was unlikely to be available to a person with a pandering conviction. In the context of appellant’s case, an immigration-safe plea would involve a crime that was not one of moral turpitude, the preference being a misdemeanor carrying 180 days or less. It would be safer to stack multiple misdemeanors on top of each other than to have a single conviction of section 266i. McKibben believed it would have been safer for appellant to go to trial than take the plea, because the plea led to “an inevitable outcome” versus the chance to have the case heard by a jury. She acknowledged that the other charges carried lengthy prison sentences and sex offender registration.

Attorney Cespedes testified that he received six to ten calls a year from other attorneys seeking advice about immigration-safe pleas or post-conviction relief. He provided such advice in conjunction with experienced deportation attorneys, and would not provide anyone with immigration advice concerning the consequences of felony convictions without seeing the criminal file and consulting an immigration specialist. He knew attorney Vega professionally and had spoken with him on the phone, but he did not have the type of relationship with him where he “impeccably” trusted him and would be available to have an idea bounced off his head. His practice was to take notes of conversations he had with other attorneys only if he was being retained or seeking to be retained; he also takes notes of his conversations with other attorneys when the case involves a felony. He did not recall speaking to attorney Vega about anyone with appellant’s name. Federal immigration law was highly complex and he would not hold himself out to criminal defense attorneys as an immigration specialist.

Ilana Jacobs Shapiro, the deputy district attorney who had prosecuted appellant’s case, testified that she had conversations with attorney Vega on appellant’s behalf, and she had offered four years on the pandering charge. She did not recall whether Vega had suggested a plea to a charge not listed in the information, but she was always going to make appellant plead to one of the charges listed. She never offered a misdemeanor plea deal in appellant’s case and “never would,” because of the nature of the charges and because she believed she had overwhelming evidence to support her case based on the video evidence and what was on Facebook. She did not think she would have been willing to offer a plea to anything that was not charged, and she did not believe she would have been open to a plea to accessory after the fact as a felony (Pen. Code, § 32), although she could not say for certain because it had been two years since the plea negotiations.

F. Ruling

The court denied the motion to vacate and petition for writ of habeas corpus. Regarding the motion to vacate, it found the form was sufficient and “I think the state of the law is the Court can rely on Tahl waiver forms.” Appellant also had not established prejudice: “I don’t have any information before me she wouldn’t have pled.” As to the habeas, the court expressly found attorney Vega to be credible with respect to consulting attorney Cespedes: “[Cespedes] doesn’t remember it, but I am not sure why he would remember a conversation like that. [¶] On the other hand, Mr. Vega remember[ed] he did it on a car phone and there were a couple of specific quotes he had from the conversation like it [lack of sex offender registration] wouldn’t hurt, all that sort of rung true with me. So I think he did look into what the consequences would be. Basically what he told her was correct, you know, under any of these charges, she is probably going to get deported, almost for sure. [¶] So I don’t see what he did was ineffective.” The court noted all the charged offenses were crimes of moral turpitude as that term is used in the immigration law, and that the district attorney wasn’t going to give the defense anything close to what attorney McKibben had posited as an immigration-safe plea. A trial might have resulted in appellant spending more time in prison or having to register as a sex offender. The court also found no prejudice, in that appellant had not shown she would not have pled. It noted that it would apparently take years and years to get a U Visa.

II. DISCUSSION

A. Motions to Vacate under section 1016.5

Appellant contends the trial court should have granted her motion under section 1016.5 to vacate her no contest plea to pandering. We disagree.

Section 1016.5, subdivision (a) requires a trial court, before accepting a plea of guilty or no contest, to advise 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.” (See People v. Arriaga (2014) 58 Cal.4th 950, 957 (Arriaga); see also (People v. Martinez (2013) 57 Cal.4th 555, 562 (Martinez).) Substantial compliance with the statute is enough so long as the defendant is specifically advised of all three separate immigration consequences of the plea. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.) The trial court is not required to provide a verbal advisement; “a validly executed waiver form is a proper substitute for verbal admonishment by the trial court.” (People v. Ramirez (1999) 71 Cal.App.4th 519, 521.)

Section 1016.5, subdivision (b) “ ‘provides a remedy for a noncitizen defendant who is not advised of these consequences: “If . . . the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which [the] defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization . . . the court, on [the] defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” ’ ” (Arriaga, supra, 58 Cal.4th at p. 957, citing § 1016.5, subd. (b).) To prevail on a section 1016.5 motion, a defendant must establish three elements: “(1) that the advisements were not given; (2) that the conviction may result in adverse immigration consequences; and (3) that the defendant would not have pled guilty or no contest had proper advisements been given.” (Arriaga, supra, 58 Cal.4th at pp. 957–958, citing Martinez, supra, 57 Cal.4th at pp. 558–559.)

We review an order denying a section 1016.5 motion to vacate the judgment for an abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 191; People v. Chien (2008) 159 Cal.App.4th 1283, 1287 (Chien).) To establish an abuse of discretion, the defendant must show that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.) “ ‘Accordingly, we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.’ ” (People v. Clancey (2013) 56 Cal.4th 562, 578.)

Although appellant averred in her motion that she did not understand the immigration consequences at the time she entered her plea, she signed a change of plea form which contained an adequate advisement, and which further represented that she had consulted with counsel regarding the same. This was consistent with attorney Vega’s testimony, which was credited by the trial court, that he discussed the immigration consequences of the plea with appellant. The court was not required to orally repeat these consequences in its admonition when taking the plea. (People v. Araujo (2016) 243 Cal.App.4th 759, 762; Ramirez, supra, 71 Cal.App.4th at p. 521; People v. Quesada (1991) 230 Cal.App.3d 525, 535–536.)

Appellant claims she was not advised of and did not understand the immigration consequences of her plea, noting that attorney Vega had her plead to the wrong count initially and “admitted he made the plea deal five minutes before she agreed to it.” Vega rectified his error in having his client plea to the wrong count by advising the court of the mistake and representing appellant in a new change of plea proceeding in which she pled no contest to the pandering count as agreed by the parties. Appellant had an opportunity to contemplate the immigration consequences stated on her plea form during the almost one-month period between the two pleas, yet raised no complaint on this basis and did not request additional time to consider her plea. (§ 1016.5, subd. (b).) In any event, a section 1016.5 motion concerns the admonishment that must be given by the court, and is not a proper vehicle for raising claims based on counsel’s allegedly deficient performance. (Chien, supra, 159 Cal.App.4th at p. 1290; see also People v. Kim (2009) 45 Cal.4th 1078, 1107, fn. 20; People v. Arendtsz (2016) 247 Cal.App.4th 613, 619.)

Appellant complains about the language in the written change of plea form, which stated, “If I am not a citizen of the United States, a conviction of this offense to which I am now entering a plea may, and with certain offenses will, result in my deportation from this country, exclusion from admission to the United States, and/or a denial of naturalization pursuant to the laws of the United States. If represented by an attorney, I have discussed this with my attorney and I know whether or not conviction for this offense requires mandatory deportation and exclusion.” She does not explain how this varies materially from the advisement required by section 1016.5, subdivision (a): “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.” A person being given either advisement would understand that she was likely to be deported or face restrictions on admission and naturalization as a result of a plea to the charges. The language in the plea form signed by appellant was even stronger than that required by statute, because it advised her that some offenses will result in deportation, exclusion or a denial of naturalization, rather than simply stating that the conviction(s) may have that result.

We agree with appellant that “[t]he test for prejudice . . . considers what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result.” (Martinez, supra, 57 Cal.4th at p. 562.) But prejudice need not be addressed when the defendant has been properly advised. (People v. Dubon (2001) 90 Cal.App.4th 944, 952–953.) Here, appellant entered her plea after being adequately advised in writing of the immigration consequences under section 1016.5. The trial court did not abuse its discretion in determining that despite appellant’s declaration to the contrary, she received the advisement required by section 1016.5: the necessary language was in the plea form itself, and was initialed by appellant.

B. Ineffective Assistance of Counsel

Appellant also seeks review of the order to the extent it treated the motion under section 1016.5 as a petition for writ of habeas corpus on the grounds of ineffective assistance of counsel and denied the petition. We assume that appellant, whose parole period had apparently not yet ended, was in state custody for habeas corpus purposes. (Cf. People v. Villa (2009) 45 Cal.4th 1063, 1072.) However, the denial of a petition for writ of habeas corpus is not an appealable order. (People v. Gallardo (2000) 77 Cal.App.4th 971, 986; People v. Garrett (1998) 67 Cal.App.4th 1419, 1422.)

Appellant requests that we treat this aspect of the appeal as a new petition for writ of habeas corpus filed in the court of appeal. We decline to do so. Though we have the power to treat the appeal as a writ, we should not exercise that power except under unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401.) Such circumstances are not present here. The nonappealability of the order denying the habeas petition was clear. The standard of review argued on appeal—abuse of discretion—also differs from the standard we would apply when considering the matter on habeas corpus. (In re Wright (1978) 78 Cal.App.3d 788, 801 [When the superior court has denied relief after an evidentiary hearing, the appellate court is not bound by the factual determinations of the lower court, but factual determinations made below “ ‘are entitled to great weight . . . when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed’ ”; see also In re Resendiz (2001) 25 Cal.4th 230, 249, abrogated on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 370–371.)

C. Bias of Judge

Appellant claims the order denying her motion to vacate her plea must be reversed because the judge who heard it (Hon. John B. Ellis) was the same judge who accepted the plea. She claims that he was biased because he had “personal knowledge of disputed evidentiary facts concerning the proceeding” within the meaning of Code of Civil Procedure section 170.1, subdivision (a)(1)(A).) We disagree.

The parties originally appeared before the Honorable E. Bradley Nelson, who indicated the case would be heard by Judge Ellis, who had accepted appellant’s no contest plea. Defense counsel suggested to the court that the judge who took appellant’s plea should not also hear the motion to vacate: “[I]t seems like there would be a conflict of interest, since he would be reviewing his own conduct. The [1016.5] is based on the Court’s advisal . . . And so, he is part of the tribunal that made the decision in that case.” Defense counsel requested time to make a phone call, which the court granted. The content of that call is not apparent from the record, and no formal motion to recuse Judge Ellis was ever made. Subsequently, the case was assigned to Judge Ellis who conducted the evidentiary hearing and denied the motion to vacate the plea.

Appellant has forfeited any statutory claim she might have to recuse Judge Ellis for cause under Code of Civil Procedure section 170.1 or to raise a preemptory challenge under Code of Civil Procedure section 170.6. She did not file a motion in superior court, and did not seek writ review in the court of appeal. (Code Civ. Proc., § 170.3, subds. (c) & (d); People v. Hull (1991) 1 Cal.4th 266, 269–274.) To the extent she asks us to construe her appeal as a writ of mandate, we decline to do so—even if we treated her appeal as a writ, this does not change the fact she did not file a motion in superior court.

Code of Civil Procedure, section 170.3 does not prevent a defendant from raising a due process rather than a statutory challenge on direct appeal when the record reflects the judge hearing the matter below was not impartial. (People v. Brown (1993) 6 Cal.4th 322, 333–336.) However, “[i]n order to give maximum effect to the Legislature’s clear intent that disqualification challenges be subject to prompt review by writ [citation], we conclude that a litigant may, and should, seek to resolve such issues by statutory means, and that [her] negligent failure to do so may constitute a forfeiture of [her] constitutional claim.” (Id at p. 336) A defendant who raises a disqualification claim at trial may assert on appeal a violation of the due process right to an impartial judge (People v. Chatman (2006) 38 Cal.4th 344, 363), but although appellant expressed discomfort with Judge Ellis hearing the case, no formal motion to disqualify was filed in the trial court. Counsel did not, therefore, attempt to resolve the matter through statutory means.

Assuming appellant’s failure to file a trial court motion did not forfeit a due process claim that Judge Ellis was biased, we reject that claim on the merits. Appellant cites no case holding that a judge who accepted a defendant’s guilty plea is barred per se from ruling on a motion to vacate or withdraw that same plea. To the contrary, defendants have sought to argue that they are entitled to have their motions to withdraw heard by the judge who took the plea. (E.g., People v. Batt (1994) 24 Cal.App.4th 1044, 1046–1047.) There is no indication Judge Ellis failed to consider appellant’s arguments or the evidence. He treated the statutory motion under section 1016.5 as a petition for writ of habeas corpus and heard evidence on this issue, notwithstanding that such claims are not properly part of a motion under section 1016.5. (Chien, supra, 159 Cal.App.4th at p. 1290; see also Kim, supra, 45 Cal.4th at p. 1107, fn. 20.)

It is true that Judge Ellis was called upon in part to determine whether he adequately advised appellant of the immigration consequences of her plea, consistent with his duties under section 1016.5 But the written change of plea form was part of the record, the reporter’s transcript from the change of plea hearing was available, and Judge Ellis was not a witness to any off-the-record communications with appellant or her trial counsel. Although Judge Ellis had personal knowledge of the plea proceedings to the extent they were conducted in open court, he did not have “personal knowledge of disputed evidentiary facts”—the contents of the written plea agreement and what was said at the change of plea hearing was a matter of public record and was undisputed. (Code Civ. Proc., § 170.1, subd. (a)(1)(A).) Though the evidence regarding ineffective assistance of counsel was contested, whether the plea should be set aside for lack of compliance with section 1016.5 was based on the face of the record.

Appellant suggests Judge Ellis demonstrated he was not impartial when he asked defense immigration law expert McKibben whether she thought pimping out a teenager was a crime of moral turpitude. But the context of the comment was this: McKibben had testified that a conviction of a different count, human trafficking, would have been “safer” because it was “divisible,” and that she did not know whether human trafficking of a minor for a sex act was a crime of moral turpitude that would prevent appellant’s admissibility. Judge Ellis appears to have been trying to ascertain whether a plea to a different charged count would have been immigration-safe. Appellant has not established a violation of due process.

 

III. DISPOSITION

The judgment (order denying motion to vacate under section 1016.5) is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

(A156113)