Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Cynthia Rayvis, Judge, No. A096335
Law Office of Antonio M. Zaldana, Antonio M. Zaldana and Milad Sadr for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Albert Armand [a.k.a. Ali Saffari] appeals from the denial of his motion to vacate judgment and withdraw his 1987 plea of no contest to charges of possession of a controlled substance for sale. Appellant contends that he did not receive the required immigration advisements pursuant to Penal Code section 1016.5, and therefore the plea must be vacated. We conclude appellant did not establish that he was inadequately advised of the adverse consequences of his plea. Accordingly, we affirm.
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is a native and citizen of Iran. On or about February 2, 1979, appellant, at age 17, arrived in the United States on a student visa. On October 4, 1986, appellant was pulled over in his vehicle for failing to have a front license plate, break lights, and expired registration tags. When asked his name, appellant gave a false name and stated that the vehicle belonged to a friend. After being informed that no such owner existed for the vehicle, appellant gave his real name. Appellant was arrested for lying to a police officer in violation of Vehicle Code section 31. While being arrested, the officer observed a rectangular shaped, folded piece of paper, known as a bindle, in appellant’s left front pocket. The bindle contained contents that resembled cocaine. Two more bindles with the same contents were found in appellant’s jacket and folded inside his money. A chemist reviewed the evidence and determined that appellant was in possession of a total weight of 56.8 grams of a powder containing cocaine. Appellant was arrested for alleged possession of cocaine. Subsequently, on February 24, 1987, the Los Angeles Superior Court accepted appellant’s change of plea from not guilty to no contest to a violation of Health & Safety Code section 11351 (possession of a controlled substance for sale). Appellant received three years probation, with the condition of serving 180 days in county jail.
Possession for sale of a controlled substance is a drug trafficking offense under federal immigration law that triggers mandatory deportation. (see 8 U.S.C. §1227(a)(2)(A)(iii); 8 U.S.C. §1101(a)(43)(B); 8 U.S.C. §1229b(a)(3).)
Appellant contends that prior to his change of plea, he advised defense counsel that he was very concerned about the immigration consequences of his plea. Appellant states that he feared persecution by the Iranian government for his departure from Iran and dreaded conscription into the Iranian Army while the Iran-Iraq war continued. According to appellant, in response to his concerns, defense counsel erroneously advised appellant that a jail sentence of less than 365 days would ensure there would be no adverse immigration consequences.
On February 24, 1987, appellant plead no contest to the violation of Health and Safety Code section 11351. In taking the plea, the Deputy District Attorney (DDA) told appellant the following advisement: “The law requires that I tell you if you are not a citizen of the United States, your plea of guilty could have the effect of being deported, being denied readmission into the United States or denied citizenship under the laws of the United States; do you understand that?” In response, appellant stated: “Yes, I understand.”
In October 2004, appellant was placed in immigration removal proceedings. On June 15, 2007, appellant filed a motion in the Superior Court to vacate judgment and withdraw no contest plea under Penal Code section 1016.5 In a declaration accompanying the motion, appellant declared that he never would have entered a plea of no contest had he known of the actual immigration consequences of his plea, and he would have instead exercised his right to a jury trial.
On October 26, 2007, the trial court heard and denied the motion. The court found that appellant was properly advised and found no prejudice. This appeal followed.
DISCUSSION
A motion to vacate the judgment is the equivalent of a petition for a writ of error coram nobis. (People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312 (Gontiz).) As such it is an appealable order. (People v. Dubon (2001) 90 Cal.App.4th 944, 950.) We review the trial court’s denial of the motion for abuse of discretion. (People v Superior Court (Zamudio)(2000) 23 Cal.4th 183, 192 (Zamudio); People v. Chien (2008) 159 Cal.App.4th 1283, 1287 (Chien).)
Appellant contends that he did not receive the required immigration advisements pursuant to section 1016.5 and that his attorney gave him advice that was contrary to what he was thereafter told orally in open court.
Section 1016.5, subdivision (a), provides: “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, the court shall administer the following advisement on the record to 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.” Under subdivision (b), if the court fails to advise the defendant as required by this section, and the defendant shows that his plea may have any of the adverse immigration consequences set forth in the statute, the defendant may move the court to vacate the judgment and withdraw the plea.
“To prevail on motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of immigration consequences as provided by statute; (2) there exists, at time of motion, more than remote possibility that conviction will have one or more of specified adverse immigration consequences; and (3) he or she was prejudiced by the non-advisement.” (People v. Totari (2002) 28 Cal.4th 876, 884; Zamudio, supra, 23 Cal.4th at pp. 199-200.)
In taking the plea, the Deputy District Attorney provided the following advisement: “The law requires that I tell you if you are not a citizen of the United States, your plea of guilty could have the effect of being deported, being denied readmission into the United States or denied citizenship under the laws of the United States . . . .”
Appellant seizes on the differing language and argues that the DDA’s prepatory phrase “I tell you . . . ” unreasonably blurs the distinction of whom is advising appellant. Appellant contends that the DDA’s terminology obscured the fact the advisement was intended to come from the tribunal, and not the prosecution. The record reflects that the DDA also used similar language in regards to conditions of probation and registration as a narcotic offender. Appellant contends that the use of the phrase in other parts of the plea colloquy means that the section 1016.5 advisement was not stressed in any way.
An “advisement need not be in the statutory language, and substantial compliance is all that is required, ‘as long as defendant is specifically advised of all three separate immigration consequences of his plea.’ [Citation.]” (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244.) Similarly, the Supreme Court in Zamudio has implicitly recognized that substantial, not literal, compliance with section 1016.5 is sufficient. (Zamudio, supra, 23 Cal.4th at p. 208.) Both Zamudio and Gontiz make clear that words analogous to the statutory language are sufficient to meet the “substantial compliance” standard. In no way does the prefacing phrase lessen the importance of the advisement.
Appellant also contends that the introductory phrase, “the law requires I tell you,” weakened the significance of the section 1016.5 advisement because the same phrase was used to introduce other mundane collateral consequences of the plea. Although the introductory phrase was used in other parts of the plea, the significance of 1016.5 was not weakened. The phrase placed more emphasis on the sections that followed it because it conveyed to appellant that the information to follow was important in the eyes of the law because the law mandated that the information be given. Similarly, the phrase, “if you are not a citizen,” should have increased the importance of the following information to this particular appellant because he knowingly fell into the class of people the section was pertaining to. The trial court substantially complied with the statute, and, hence, committed no error in the manner in which it took appellant’s plea.
To the extent appellant is now contending that his attorney actually gave him advice that was contrary to what he was thereafter told orally and agreed to in open court, that argument is equally unavailing. Analogous to People v. Gutierrez (2003)106 Cal.App.4th 169, 175, the only reference in the record to what his attorney advised him is the following statement contained in his declaration filed in support of his motion to vacate: “defense counsel advised me that a prison sentence under 365 days would ensure no adverse immigration consequences.” This statement directly contradicts the oral waiver made in the trial court. At most this argument is a disguised claim that appellant received ineffective assistance of counsel, an argument which is not formally asserted in appellant’s brief and is not cognizable on coram nobis. (Ibid; see also People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [ineffective assistance of counsel may be raised only by direct appeal or habeas corpus petition].) The court in Chien, supra, 159 Cal.App.4th 1283, expressly held that courts “lacked jurisdiction to address a claim of ineffective assistance of counsel in the context of a section 1016.5 motion.” (Id. at p. 1290.) Thus, defense counsel’s alleged error cannot be used to negate an affirmative waiver under section 1016.5.
While “affirmative misadvise regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel,” a motion under Penal Code section 1016.5 is not the proper vehicle to address a claim of ineffective assistance of counsel. (In re Rensendiz (2001) 25 Cal.4th 230, 240; see Chien, supra, 159 Cal.App.4th at p. 1290, fn.4 [“issues relating to a defendant’s ability to bring a post-judgment ineffective assistance of counsel claim based on immigration consequences are pending before the California Supreme Court in People v. Kim, review granted July 25, 2007, S153183”].)
Appellant was properly advised. Therefore, prejudice is not at issue.
DISPOSITION
The trial court’s denial of appellant’s motion to vacate is affirmed.
We concur: RUBIN, J., FLIER, J.