Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. PA037606, Shari K. Silver, Judge.
Marc A. Karlin, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
In 2001, appellant Juan Jose Carrillo pled guilty, pursuant to a plea agreement, to one count of possession for sale of cocaine base in violation of Health and Safety Code section 11351. The trial court suspended appellant's sentence and placed him on formal probation for a period of three years, on the condition, inter alia, that he serve 365 days in county jail.
In December 2007, appellant filed a motion to vacate his plea, on the ground that he had not been adequately advised of the immigration consequences of the plea. He appeals from the trial court's order denying that motion. We affirm the trial court's order.
Facts
Appellant is not a citizen of the United States. He came to the U.S. in about 1982, when he was five years old. In 2001, he pled guilty to the above-described offense. At some point prior to making his motion to vacate, appellant applied to the Unites States Department of Homeland Security for immigration relief to avoid deportation. He learned that he was not eligible for late amnesty or any other immigration relief due to his guilty plea.
Appellant brought a motion to vacate that guilty plea, contending that he was not properly advised of the immigration consequences of his plea prior to entering it and that that plea was not knowing or voluntary.
The trial court which heard appellant's motion to vacate obtained a transcript of the March 20, 2001 hearing in which appellant entered his plea. Pertinent parts were read into the record at the hearing on the motion to vacate. These excerpts show that in the underlying case, the prosecutor advised appellant as follows: "If you are not a citizen of the United States, your plea would cause you to be deported, you'd be denied reentry, you'd be denied naturalization, citizenship, and amnesty." The prosecutor repeated the admonition, prefacing it with "Your plea today would cause you to be deported . . ." et cetera. The district attorney asked appellant: "Do you understand that?" Appellant replied, "Yes." Later in the plea hearing, the court commissioner asked appellant: "Do you have any questions at all about the rights [the prosecutor] has explained to you and the consequences of your giving those rights up?" Appellant replied, "No."
Discussion
1. Penal Code section 1016.5 motion
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant moved to withdraw his 2001 plea on the grounds that he did not understand the advisement he received in 2001 and was not advised that his plea would make deportation mandatory.
A trial court's order denying a motion to vacate under section 1016.5 is an appealable order reviewed for an abuse of discretion. (People v. Totari (2002) 28 Cal.4th 876, 887; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
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."
To prevail on a motion to vacate made on the ground that a defendant was improperly advised of the immigration consequences of his plea, a defendant must show 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." (People v. Totari, supra, 28 Cal.4th at p. 884.)
Although section 1016.5 sets forth a specific advisement to be given to the defendant, the use of the exact language of the statute is not required. "[O]nly substantial compliance is required under section 1016.5 as long as the defendant is specifically advised of all three separate immigration consequences of his plea." (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174.)
Here the advisement to appellant was not in the exact language of section 1016.5. Appellant was advised: "If you are not a citizen of the United States, your plea would cause you to be deported, you'd be denied reentry, you'd be denied naturalization, citizenship, and amnesty." This advisement was, if anything, clearer and more extensive than the advisement in section 1016.5. The advisement used the phrase "denied re-entry," which is the legal equivalent of section 1016.5's "exclusion of admission" and is a more precise statement of the consequence. (People v. Gutierrez, supra, 106 Cal.App.4th at p. 174, fn. 4.) The advisement also warned specifically of the denial of amnesty, which is not listed separately in section 1016.5.
Nothing more was required of the trial court in the underlying case before taking appellant's guilty plea. Appellant was properly advised of the immigration consequences of his plea as required by statute, and stated that he understood the admonition.
Appellant contends that due to changes in federal immigration law which occurred in 1996, the section 1016.5 advisement is no longer adequate. Before 1996, appellant notes, over half the applications for relief from deportation were granted. (See Mattis v. Reno (1st Cir. 2000) 212 F.3d 31, 32.) The practical effect of the passage of the 1996 amendments, appellant contends, was to eliminate the only avenue of immigration relief for aliens convicted of a narcotics offense such as his. He concludes that he should have been advised that deportation was mandatory if he pled guilty.
Appellant has misunderstood the role of the state trial court and the purpose of the section 1016.5 advisement. The purpose of section 1016.5 is to warn all defendants that there may be negative immigration consequences to a guilty plea. Those consequences will not be the same for all non-citizen defendants. It is up to each defendant to inform himself of the specific immigration consequences of his unique situation. Section 1016.5, subdivision (b) specifically provides that, upon request, the court shall allow a defendant time to consider the appropriateness of the plea in light of the consequences of that section.
It is not the purpose of section 1016.5 or the role of the court to advise each individual defendant of the precise immigration consequences of his specific plea agreement. The state courts are not specialists in federal immigration law, and do not know the particulars of a defendant's immigration status or personal history as it is relevant to federal immigration law.
It appears, for example, that in order to apply for relief under pre-1996 standards, a person would have to be a lawful permanent resident alien with a lawful unrelinquished domicile of seven consecutive years. (Mattis v. Reno, supra, 212 F.3d at p. 32 and fn. 1.)
2. Voluntary and intelligent plea
Appellant contends that his plea was not knowing and voluntary because he did not know that the consequence of his guilty plea was mandatory deportation.
In order for a defendant's plea to be knowing and voluntary, due process requires only that the defendant be advised of and waive his constitutional rights to trial, to confront witnesses and to stand silent before entering his plea. (People v. Mosby (2004) 33 Cal.4th 353, 359.) Appellant was advised of and waived those rights before entering his plea.
The immigration consequences of a plea are "collateral" consequences of a criminal conviction in California. (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 198.) A trial court generally is not required to inform a defendant of consequences that are collateral to the conviction. (Hill v. Lockhart (1985) 474 U.S. 52, 55.)
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.