Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 94NF2676, Thomas M. Goethals, Judge.
Kenneth H. Nordin, 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, Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Hector Fernandez Barrios appeals from the denial of his motion to vacate a 1994 judgment following his guilty plea to charges of robbery and second degree burglary. Pursuant to Penal Code section 1016.5, subdivision (a) he based his motion and bases this appeal on the alleged failure of the court to advise him of immigration consequences before accepting his plea. A review of the available record discloses defendant was adequately advised and we therefore affirm the order.
DISCUSSION
Penal Code 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, except offenses designated as infractions 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.” Defendant contends the court failed to comply with this directive. The record shows otherwise.
Because of defendant’s many years’ delay in filing his motion, the reporter’s transcript of his sentencing was destroyed, as authorized by Government Code section 69955, subdivision (e). (Ten years’ retention is required for transcripts in non-capital criminal cases.) But defendant initialed the following statement on the Tahl (People v. Tahl (1967) 65 Cal.2d 719) form: “I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” At the bottom of the form, defendant’s attorney certified that he “explained each of the above rights to the defendant.... I further stipulate this document may be received by the court as evidence of defendant’s intelligent waiver of these rights and that it shall be filed by the clerk as a permanent record of that waiver.”
Additionally, the minute order for the proceedings notes “deft adv... conseq (sic) of plea if not a citizen.” We interpret these abbreviations to be the equivalent of “defendant was advised of the consequences of his plea if not a citizen.” Defendant contends this is not enough; that, unless a reporter’s transcript demonstrates the advisement was uttered by the court, the motion to vacate must be granted.
Assuming that reporters’ transcripts in non-capital criminal cases are routinely destroyed as authorized by Government Code section 69955, subdivision (e), defendant’s argument would lead to the illogical conclusion that, as long as defendants, at least those who are not United States citizens, wait more than 10 years, they would automatically be entitled to have any guilty plea set aside on the ground they were not advised of the immigration consequences of the plea. We cannot accept such an interpretation of the statute.
We start with the proposition that “[t]he trial court’s minute order is entitled to a presumption that it is correct and any error must be affirmatively shown. [Citation.]” (Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 858.) In People v. Ramirez (1999) 71 Cal.App.4th 519, the court made it clear that where a defendant states in a signed Tahl form that he understood the advisement, there was compliance with the statute. (Id. at p. 522.) Defendant seeks to distinguish Ramirez because there, the record disclosed the trial court had “inquired into whether appellant had reviewed the form with his attorney, whether it had been translated into Spanish and whether appellant understood the advisements discussed and the rights ultimately waived.” (Id. at p. 523.) Obviously, because of the delay we do not know whether the same was done here. But even though the minute order, alone, may not itself establish the admonition was given (see People v. Dubon (2001) 90 Cal.App.4th 944, 954-955), here the combination of the minute order entry and the Tahl form is sufficient to establish compliance with Penal Code section 1016.5, subdivision (a).
DISPOSITION
The denial of defendant’s motion to vacate a 1994 judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.