Opinion
E064854
01-03-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER CRUZ, Defendant and Appellant.
Tom Stanley for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB802442) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed. Tom Stanley for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
On August 12, 2008, defendant and appellant Francisco Javier Cruz pled no contest to possession of methamphetamine for sale, in violation of Health and Safety Code section 11378. The trial court indicated that it would place defendant on probation with the condition that he serve 120 days in a work-release program. Defendant initialed and signed a plea form under penalty of perjury. Defendant stated that (1) he personally placed his initials on the plea form; (2) before placing his initials, he went over all the printed and handwritten portions of the form with his attorney; and (3) he understood everything on the form. Defendant said that he had enough time to discuss with his attorney the plea and all of its consequences, and that he understood the consequences of the plea. The trial court specifically asked defendant if he understood that, if he was not a citizen, he would be deported, excluded from admission, or denied naturalization as a citizen as a result of his conviction. Defendant stated that he understood. Defense counsel said that he went over the declaration and plea form with defendant, and that he was satisfied that defendant understood the consequences of the plea. The trial court found that defendant understood his plea and its consequences, and intelligently and voluntarily entered his plea.
On September 22, 2008, the trial court suspended imposition of defendant's sentence on the condition that defendant complete 120 days in a work-release program, along with other fines, fees and conditions. One of the terms of probation was that defendant "not remain in, or reenter, the United States without proper written authorization by the Department of Homeland Security-Bureau of Citizenship and Immigration Services," and "[u]pon reentering the United States, report forthwith to the Probation Officer with written proof of authorization." Defendant stated that he had an opportunity to go over the terms and conditions with his attorney, and that he understood and accepted the terms and conditions. Neither defendant nor defense counsel objected to this or any other term, or asked any questions.
Six years later, defendant filed a nonstatutory motion to vacate his plea due to ineffective assistance of counsel (IAC). Later, defendant filed a supplemental motion to vacate his plea under Penal Code section 1016.5. The trial court denied the motion on August 4, 2015. Defendant appeals.
All further statutory references are to the Penal Code unless otherwise indicated. --------
DISCUSSION
Defendant contends that the trial court erred in denying his motion to withdraw his plea because the court failed to advise defendant of the immigration consequences of his plea. We disagree.
Under section 1016.5, a defendant can obtain relief if he or she "demonstrate[s] that (1) the court taking the plea failed to advise the defendant of the immigration consequences as provided by section 1016.5, (2) as a consequence of conviction, the defendant actually faces one or more of the statutorily specified immigration consequences, and (3) the defendant was prejudiced by the court's failure to provide complete advisements." (People v. Chien (2008) 159 Cal.App.4th 1283, 1287, citing People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200; People v. Totari (2002) 28 Cal.4th 876, 884.)
Section 1016.5, subdivision (a), requires the following admonishment be given to any defendant entering a guilty plea: "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." The court is not necessarily required to provide the above warning orally. However, it must appear on the record, and it must be given by the court. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 175; People v. Ramirez (1999) 71 Cal.App.4th 519, 521.)
In this case, the trial court advised defendant in accordance with the statute that immigration consequences would result. On August 12, 2008, at the hearing wherein defendant and his codefendants pled no contest, the following exchanged occurred:
"THE COURT: All of you understand that if you are not a citizen of the United States, the consequences of conviction will include deportation, exclusion from admission into the United States, or denial of naturalization pursuant to the laws of the United States. [¶] . . . [¶] . . . You understand that, Mr. Cruz?
"THE DEFENDANT CRUZ: Yes."
When the trial court asked defense counsel if he "had adequate time to discuss all of these issues with [defendant]," defense counsel replied, "Yes, your Honor."
Moreover, the advisement in the change of plea form clearly stated: "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest.)" Defendant initialed this provision, and signed and dated the change of plea form under penalty of perjury. Additionally, at the hearing, defendant told the trial court that he read over the printed and handwritten portions of the plea agreement and personally placed his initials on the form after reading, understanding and discussing each paragraph with his attorney.
In this case, the trial court held a hearing on defendant's motion to vacate his no contest plea. Defendant's position was that he did not understand that his plea would mean he would have no opportunity to stay in the United States. In support, defendant stated that he told his probation officer after his no contest plea, but prior to his sentencing, that he was taking steps to remain legally in the United States. Defense counsel argued, "it's clear that this guy doesn't understand what a possession for sale will do to that," and argued that the trial court should have readvised defendant about his immigration consequences. The trial court stated it had reviewed the papers filed and heard argument of counsel. Thereafter, it found that there was "no affirmative duty for the Court to re-advise after the initial advisement was made in this case."
We agree. Here, as provided above, there is no dispute that the trial court orally advised defendant of his immigration consequences, as required under section 1016.5. Moreover, defendant signed his no contest plea form indicating that he understood his immigration consequences. The trial court had no duty to readvise defendant again on the same advisals the court had already given. The trial court properly denied defendant's motion.
DISPOSITION
For the reasons stated, the trial court's ruling is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.