Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. A149667, Martin L. Herscovitz, Judge.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Keith H. Borjon, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant George T. Arsenault appeals from the superior court’s denial of his motion to vacate the judgment (Pen. Code, § 1016.5) entered after he pleaded guilty in 1981 to committing a lewd act upon a child. We affirm.
In the record, appellant’s name is sometimes spelled “Arseneault.” We use the spelling employed in appellant’s briefing, “Arsenault.”
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Arsenault’s 1981 plea and conviction.
In 1981, Arsenault, a Canadian citizen, pleaded guilty to committing a lewd act upon a child (§ 288, subd. (a)). He was convicted upon his plea. As part of a negotiated disposition, he was sentenced to a jail term of 90 days and placed on felony probation.
During the plea proceeding, Arsenault confirmed that he had discussed the matter, including all possible defenses, with his attorney. He was advised by the prosecutor of his rights to a jury trial, to confront and cross-examine witnesses, and against self-incrimination, and waived those rights. Arsenault was further advised of the immigration consequences of his plea. The reporter’s transcript reflects the following exchange:
“[The prosecutor]: If you are now now [sic] a citizen of this country, conviction of this charge may result in your deportation and you may be denied the right to re-enter this country or to become a naturalized citizen. [¶] If you are now a citizen, that does not apply to you. [¶] Do you understand that?
“[Arsenault]: Yes.
“[The prosecutor]: Do you have any questions about the consequences of your plea, about the agreement I have with your attorney or about any of your rights?
“[Arsenault]: No.” (Italics added.)
The trial court found Arsenault had been properly advised of his constitutional rights and had made a knowing and intelligent waiver of them, and that the plea was made freely and voluntarily.
2. Motion to vacate the conviction.
In October 2006, Arsenault moved pursuant to section 1016.5 for an order vacating the conviction on the ground that, inter alia, he had not been properly advised of the immigration consequences of his plea in 1981. Arsenault contended, inter alia, that the 1981 trial court’s advisement was incorrect because the prosecutor had stated, “ ‘If you are now now a citizen of the United States,’ ” rather than “ ‘not now.’ ” (Italics added.) Arsenault’s declaration stated that he had emigrated to the United States from Canada in 1965, had lived here ever since, and had suffered no additional convictions since his 1981 plea. In 2005, while awaiting renewal of his permanent residency card, he was arrested by the Department of Homeland Security and detained for four weeks. Deportation proceedings were thereafter instituted as a result of his 1981 conviction. Arsenault declared that he did not recall being properly advised by the 1981 trial court of his constitutional rights or the immigration consequences of his plea, and had been “mislead and confused by the improper warning that the court gave” him. He was “surprised and distressed to learn from [his] immigration attorney” that because of his 1981 conviction, he was subject to exclusion, deportation, and denial of citizenship. Had he known of the “dire immigration consequences” of his plea, he would never have pleaded guilty.
Arsenault also contended that the conviction should be vacated because the trial court failed to determine that there was a factual basis for his plea. Arsenault does not advance this claim on appeal.
After a hearing, the superior court denied Arsenault’s motion to vacate the conviction. It concluded the reporter’s transcript simply contained a typographical error, and Arsenault had, in fact, been properly advised. The superior court explained, “I think it’s rather obvious from looking at the . . . typed words that are on the page. I mean . . . it seems totally apparent to me that one letter was wrong, that the word now – no one would say, ‘you are now now a citizen’. It obviously was ‘not now a citizen.’ It’s a difference of one letter.” The superior court concluded “beyond any doubt that there was a transcribing error, and that on page five of the plea transcript, the district attorney did not say, ‘If you are now now a citizen of this country’; that the district attorney said, ‘If you are not now a citizen of this country’; and that is verified by lines 24 and 25, where the D.A. then turned it around and said, ‘If you are now a citizen, that does not apply to you. Do you understand that?’ And the defendant said, ‘Yes.’ ” Because it found Arsenault had been properly advised of the immigration consequences of his plea, the superior court denied the section 1016.5 motion to vacate the conviction.
DISCUSSION
Both now and at the time it was enacted, section 1016.5 has provided, in pertinent part, “(a) 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. [¶] (b) . . . . If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which 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 pursuant to the laws of the United States, the court, on 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. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” The advisement need not be in the statutory language; substantial compliance is all that is required as long as the defendant is specifically advised of each of the three immigration consequences of his or her plea. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174 [“substantial, not literal, compliance” is sufficient].)
To prevail on a motion to vacate a conviction under section 1016.5, the defendant must establish (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) at the time of the motion, there exists more than a remote possibility the conviction will result in one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement. (People v. Totari (2002) 28 Cal.4th 876, 884; People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.) To establish prejudice, the defendant must show it is reasonably probable he or she would not have pleaded had proper advisements been given. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210; People v. Totari, supra, at p. 884; People v. Castro-Vasquez, supra, at p. 1244; People v. Gutierrez, supra, 106 Cal.App.4th at p. 174, fn. 4.)
We review the superior court’s denial of a section 1016.5 motion for abuse of discretion. (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 192; People v. Gutierrez, supra, 106 Cal.App.4th at p. 172; People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.)
Arsenault contends the trial court abused its discretion by denying his section 1016.5 motion for two reasons. First, Arsenault urges that the only evidence of the advisement given at the hearing is the reporter’s transcript of the proceedings. That transcript, he posits, demonstrates that the prosecutor misspoke by stating, “If you are now now [sic] a citizen of this country” rather than “if you are not now a citizen of this country.” Therefore, he did not receive the statutorily-mandated advisements and his conviction must be vacated. Second, he contends the advisements should have been given by the judge, rather than by the prosecutor.
We discern no abuse of discretion in the trial court’s finding that Arsenault was properly advised. The superior court’s conclusion that the transcript simply contains a typographical error is eminently reasonable. As the court pointed out, only a single letter of the reporter’s transcript was at issue. Had the prosecutor misspoken, surely the judge or defense counsel would have corrected him. The prosecutor’s second statement – that if Arsenault was currently a citizen, the advisements did not apply to him – would have made little sense if the prosecutor had actually said, “now now,” yet Arsenault did not ask for clarification. Instead, he stated that he understood. The trial court’s factual finding was neither arbitrary nor irrational. (Cf. People v. Carmony (2004) 33 Cal.4th 367, 376.) Given the trial court’s reasonable conclusions that the transcript contains a typographical error and Arsenault was properly advised pursuant to section 1016.5, the transcript constitutes a sufficient record that the statutory advisements were given. Thus, Arsenault cannot satisfy the first element necessary to prevail on his motion to vacate the judgment.
Arsenault’s contention that the advisement was insufficient because given by the prosecutor, rather than the judge, fares no better. Arsenault asserts that the plain language of section 1016.5 mandates that it is the duty of the court, “not transferable to a prosecutor, to give the clear statement of potential immigration consequences when a plea is taken.” Even assuming arguendo that Arsenault’s interpretation of the statute is correct, he has failed to demonstrate any prejudice arising from the fact that the advisement was given by the prosecutor. “Prejudice results from improper advisement when ‘ “it is ‘reasonably probable’ the defendant would not have pleaded guilty if properly advised.” [Citations.]’ [Citation.]” (People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1245; People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 210.) As discussed ante, the record shows that Arsenault was given the required advisements, and indicated he understood. Arsenault does not aver in his declaration that he was somehow misled because the prosecutor, rather than the court, gave the advisements. Nor does he contend he would have declined to plead guilty had the judge, rather than the prosecutor, informed him of the immigration consequences of his plea. He advances no theory showing how he was prejudiced by the fact that the prosecutor, rather than the judge, gave the advisements, and we can conceive of none. He has therefore failed to show prejudice.
DISPOSITION
The trial court’s order is affirmed.
We concur: KLEIN, P. J., KITCHING, J.