Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF1512, Thomas James Borris, Judge.
Dabney Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
FACTS AND PROCEDURAL HISTORY
Defendant Ismael Garcia Anaya pleaded guilty to being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1), all further statutory references are to this code), street terrorism (§ 186.22, subd. (a)), and aiding a principal in avoiding arrest (§ 32).) Additional counts for felony assault with a firearm (§ 245, subd. (a)(2)), carrying a loaded firearm in public by a gang member (§ 12031, subd. (a)(1), (2)(C)), and possession of a firearm within 1,000 feet of a school (§ 626.9, subd. (b)), and a gang enhancement (§ 186.22, subd. (b)(1)) were dismissed. Defendant was sentenced to two years in prison, with 66 days’ credit; security, and restitution; the court imposed suspended parole revocation fees (§§ 1202.4, 1202.45).
In connection with his plea, defendant initialed the provision on the plea agreement that stated: “I understand if I am not a citizen of the United States, my conviction for the offense charged will have the consequence of deportation[ or] exclusion from admission to the United States....” Above his signature on that form, he initialed a statement that read, “I declare under penalty of perjury I have read, understood, and personally initialed each numbered item above, and I have discussed them with my attorney.” Defendant’s lawyer signed the form, stating, “I have discussed the charges and the facts with defendant. I have studied the possible defenses to the charges and discussed those possible defenses with defendant. I have discussed the possible sentence ranges and immigration consequences with defendant. I also have discussed the contents of this form with defendant.... I agree that this form may be received by the court as evidence of defendant’s advisement and voluntary, intelligent, knowing, and express waiver of the rights set forth on this form.” At the hearing where defendant pleaded guilty, the court asked whether defendant had read and understood the provisions of the form before he initialed and signed it, to which defendant answered he had. The minute order states: “Defendant advised of the possible consequences of plea affecting deportation and citizenship.”
After deportation charges were initiated, defendant filed a motion to vacate the sentence and dismiss the charges. Although no declarations supported his motion, defendant claimed he was not advised of the deportation consequences of his plea. He also claimed his lawyer was ineffective for failing to tell him of those consequences, “vigorously argu[ing]” against those consequences, or seeking different sentencing. The court denied the motion, stating, that defendant had not shown either a failure to advise or that he was prejudiced; that it did not have jurisdiction to vacate or amend the judgment to prevent defendant’s deportation; and defendant had not shown a miscarriage of justice that would give the court jurisdiction, including habeas jurisdiction.
After defendant appealed we appointed counsel to represent him. Counsel filed a brief which set forth the facts of the case and the disposition. He did not argue against defendant, but advised the court he had not found any issues to present on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) He suggested three issues to assist us in our independent review of the record. These issues related to the alleged failure to advise defendant of the immigration consequences of his plea, the authority of the trial court to alter or vacate the judgment, and the jurisdiction of the trial court to hear the matter. Defendant was given 30 days to file written argument on his own behalf and filed a supplemental brief, containing three issues. He argued his lawyer acted incompetently in failing to advise him of the immigration consequences of his plea, that he would not have pleaded guilty had he known of these consequences, and that the trial court had the power to dismiss the charges. We considered the issues raised by counsel and by defendant and examined the entire record to determine if any arguable issues were present, and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.)
DISCUSSION
The three arguments counsel suggests are based on the reasons the court denied the motion. Penal Code section 1016.5 mandates that a defendant be advised of the deportation consequences of a plea. Despite his claims to the contrary in his motion and in his supplemental brief, there is no evidence in the record to show defendant was not advised, a requirement for setting aside a plea under this section. (People v. Totari (2002) 28 Cal.4th 876, 884.) Unsworn statements in a motion are not competent evidence. (See People v. Green (1963) 215 Cal.App.2d 169, 171.) On the other hand, there is substantial evidence in the plea agreement, where defendant stated under oath that he had been told and understood he could be deported. His lawyer also declared under penalty of perjury he had so advised him.
Defendant’s claim in his brief that his lawyer rendered ineffective assistance because he did not adequately investigate the immigration consequences of the plea is likewise unsupported by evidence. Thus, his second argument that he was prejudiced by the ineffective assistance also fails. There is no evidence he would not have pleaded guilty but gone to trial. (In re Resendiz (2001) 25 Cal.4th 230, 254.) Or that a different result would have obtained after trial.
The court also correctly ruled it lacked jurisdiction to vacate or alter the judgment. “‘Once the court has accepted the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.” [Citation.]’ [Citations.]” (People v. Segura (2008) 44 Cal.4th 921, 931.) It also properly ruled it had no jurisdiction because defendant had not shown a miscarriage of justice. (See People v. Chien (2008) 159 Cal.App.4th 1283, 1290-1291.)
Finally, although the court has the discretion to dismiss an action under section 1385, subdivision (a), defendant has not shown the court abused its discretion in denying his motion. The consequences of defendant’s deportation, while devastating to him, do not mandate vacating the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.