Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. B. J. Bjork, Judge, Super.Ct.No. ICR25081
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
Defendant and appellant Jorge Avila Ayala appeals from an order denying a motion to vacate the judgment and withdraw his guilty plea. (Pen. Code, § 1016.5.) He claims he was not properly advised that he would be deported for his admission to a violation of Health and Safety Code section 11378 (possession of methamphetamine for sale). We affirm.
All further statutory references will be to the Penal Code unless otherwise noted.
PROCEDURAL BACKGROUND
On June 10, 1996, at an arraignment hearing, defendant pled not guilty to the charge of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) Two days later, he withdrew his initial plea and entered a plea agreement by which he agreed to plead guilty in exchange for a grant of probation. The minutes reflect that a Spanish language interpreter, “J. Perez,” was sworn to translate the proceedings relating to the entry of the plea. The change of plea form stated that defendant understood the consequences of the plea, including that his conviction may result in possible deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. The interpreter did not sign the form but defendant and his counsel did.
At the hearing on the plea, the court asked defendant if he had an opportunity to read and sign the advisement of rights and consequences of plea form. Defendant responded in the affirmative. The court further asked defendant if he understood the form, and he replied, “Yes, and I’m guilty.” The court also asked defendant if he had any questions regarding the form, and defendant said, “No.” Finally, the court asked defendant if he understood that by signing the form, he was waiving certain rights, and defendant said, “Yes.” After the defendant entered his guilty plea, the court stated that the waiver of right form was incorporated by reference. It then found that defendant knowingly, intelligently, freely and voluntarily waived his constitutional rights and pled guilty. In pronouncing immediate judgment, the court placed defendant on probation for three years under several conditions.
Almost 12 years later, on January 15, 2008, defendant filed a motion to vacate the judgment and withdraw his guilty plea (the motion) on the ground that his defense attorney failed to advise him of the immigration consequences of his plea. In support of the motion, defendant included his declaration, which stated that his attorney told him he should just “plead guilty to get it over with,” and that defendant did what he was told. Defendant further declared, “At no time did [my attorney] tell me that I would be deported by pleading guilty. I do not speak English.”
A hearing on the motion was held on March 28, 2008. Jose Perez testified that he served as a certified court interpreter in June 1996 and worked in Palm Springs most of the time but would occasionally be sent to work in Riverside. He had no recollection of this case. Part of his responsibility was to translate guilty plea forms for defendants. When he did so, he would sign the attestation form to that effect, and he said he would have done so if he had translated the form for defendant.
Roberto DeAztlan, the attorney who represented defendant in 1996, also testified. He said he did not specifically recall defendant’s case and he could not find the case file since his office usually retained case files for only five years. DeAztlan identified the attorney’s signature on defendant’s change of plea form as his. DeAztlan testified he was a native Spanish speaker. For his Spanish speaking clients, it was his practice to summarize the terms of the plea form in Spanish, then hand it over to the interpreter, who would translate it verbatim. DeAztlan specifically testified that he would read to his clients in Spanish the consequences of the plea paragraph, which stated, “‘If I’m not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization . . . .’” DeAztlan further testified that after he would go over the plea form and advisement of rights, he would have his client initial the form. The court asked DeAztlan if there was ever a time that he did not use an interpreter when the court was shorthanded, since he could speak Spanish himself, and DeAztlan said he would sometimes proceed without an interpreter.
Defendant also testified at the hearing. He acknowledged that he initialed and signed the plea form. When asked if DeAztlan read to him or said anything to him, as he (defendant) initialed and signed the form, defendant said, “No.” Defendant said DeAztlan told him only “to put [his] initials there.” Defendant added, “If he [DeAztlan] would have told me everything that I now know, that I was going to be deported, then I wouldn’t have signed.”
In ruling on the matter, the court noted that at the time of the plea hearing, multiple interpreters were often in the courtroom, which made it possible that Perez “stood up at the time they took the plea,” but another interpreter could have read the form to defendant. (Judge Bjork was the same trial judge who took defendant’s plea in 1996.) The court found that the “nonsigning by an interpreter” did not mean defendant was not informed. The court also found it problematic that defendant said no one told him anything but to initial and sign the form, when the court knew that the attorneys did not do that. The court stated, “I don’t think that any attorney would stick some papers in front of his face and say, ‘Here, sign,’ the way [defendant] just testified. He said nobody told him anything. He was just told to sign and initial, and I just don’t see that happening.” Furthermore, the court pointed out that DeAztlan testified he went over the form with his clients. The court particularly noted that defendant said he never would have signed the form if he had been told he would be deported. However, the statute required only that defendant be advised the conviction “may” have the consequence of deportation, as the advisement in the plea form stated. Finally, the court noted that before taking the plea, it asked defendant if he read, understood, and signed the form. Defendant had the opportunity to say the form had not been read to him, but did not do so. Instead, he had no questions, and said, “Yes, and I’m guilty.”
The court denied the motion to vacate judgment. Defendant timely appealed the denial.
ANALYSIS
The Trial Court Properly Denied Defendant’s Motion
Defendant asserts the court erred in denying the motion to vacate the judgment and withdraw the plea, since he “was not properly advised that he would be deported” as a result of his guilty plea, as required by section 1016.5. Defendant claims “there is nothing in this record to show he was advised in the Spanish language as to the exact language in the change of plea form relating to immigration consequences.” We conclude that the court properly denied the motion.
A. Standard of Review
“[T]he trial court on a contested motion to withdraw a plea of guilty under this section . . . is the trier of fact and hence the judge of the credibility of the witnesses or affiants. Consequently, it must resolve conflicting factual questions and draw the resulting inferences. [Citation.] As is the case with most other evidentiary rulings by a trial court, we apply the substantial evidence rule on appellate review. [Citation.]” (People v. Quesada (1991) 230 Cal.App.3d 525, 533 (Quesada), superseded by statute on other grounds as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206, fn. 5.) We review the trial court’s denial of a motion to vacate a judgment for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192; see also People v. Suon (1999) 76 Cal.App.4th 1, 4.)
B. There Was No Abuse of Discretion
“To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement. [Citations.]” (People v. Totari (2002) 28 Cal.4th 876, 884.) “Under [People v. Superior Court (Zamudio), supra, 23 Cal.4th 183], a defendant who seeks to set aside his plea must show prejudice, namely, that but for the failure to advise, he would not have entered a guilty plea. This is a factual question for the trial court. [Citation.]” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174, fn. 4.)
Defendant failed to establish that he was improperly advised under section 1016.5. His argument was and is erroneously premised on the belief that section 1016.5 required the court to advise him that if he pled guilty, he would be deported. In support of his motion, defendant filed a declaration stating, “At no time did Mr. DeAztlan tell me that I would be deported by pleading guilty.” At the hearing, defendant testified: “If he would have told me everything that I now know, that I was going to be deported, then I wouldn’t have signed.” We note that defendant did not mention any error on the court’s part in his declaration. In fact, at the hearing on the motion, defense counsel stated that the court did everything it was supposed to do. Moreover, contrary to defendant’s claim, section 1016.5 did notrequire the court to advise him that he would be deported if he admitted to violating Health and Safety Code section 11378. 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.” (Italics added.) As pointed out by the trial court at the hearing on the motion, the advisement required only that defendant be told that he may be deported.
Furthermore, the evidence before the trial court showed that defendant was properly advised under section 1016.5. The change of plea form was explained to him, although it might not have been translated word for word. DeAztlan testified it was his practice to summarize the terms of the plea form in Spanish and then hand the form over to the interpreter, who would translate the form verbatim. Significantly, DeAztlan further testified that it was his practice to read to his clients in Spanish the consequences of the plea paragraph, which stated, “‘If I’m not a citizen of the United States, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization . . . .’” DeAztlan also stated that after he would go over the plea form and advisement of rights, he would have his client initial the form. Defendant here undisputedly initialed the form.
Defendant testified that he was never read the form and that DeAztlan did not say anything to him as he was signing the plea form. The trial court determines credibility and resolves conflicting factual questions. (Quesada, supra, 230 Cal.App.3d at p. 533). The court here simply did not believe defendant’s testimony. We cannot reevaluate defendant’s credibility. (Ibid.; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Moreover, while the trial court did not personally recite the advisement to defendant, it was not required to do so. “Nor need the statutory admonition be given orally. It is sufficient if, as here, the advice is recited in a plea form and the defendant and his counsel are questioned concerning that form to ensure that defendant actually reads and understands it.” (Quesada, supra, 230 Cal.App.3d at p. 536.) A court “may rely upon a defendant’s validly executed waiver form as a proper substitute for a personal admonishment.” (People v. Panizzon (1996) 13 Cal.4th 68, 83.) In nearly the exact language of section 1016.5, defendant’s plea form advised him in writing that these consequences would result from a conviction of the offense to which he was pleading guilty. Thus, the change of plea form included the advisement of the immigration consequences, and the numbered paragraph containing the advisement in the statutory language was initialed by defendant. Defendant undisputedly signed the plea form, thereby stating that he read and understood each statement he initialed. In open court, defendant was advised that by signing the form, he was indicating he understood his constitutional rights and was willing to give them up in order to enter into the plea agreement. Defendant acknowledged the truth of that statement. The court asked defendant if he had an opportunity to read and sign the advisement of rights and the consequences of the plea form. Defendant said, “Yes.” The court then asked him if he understood the form. Defendant replied, “Yes, and I’m guilty.” The court asked if he had any questions about the form, and defendant said “No.” There was no reason for the trial court to conclude defendant did not understand the plea form, or, more specifically, the immigration consequences explained in it.
In sum, defendant failed to show that he was improperly advised of the immigration consequences as provided by the statute. Thus, the trial court properly denied his motion to vacate the judgment and withdraw his guilty plea.
DISPOSITION
The judgment is affirmed.
We concur:, RAMIREZ, P.J., GAUT, J.