Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. A888285. Charles Horan, Judge. Affirmed.
Law Offices of Brian D. Lerner, Brian D. Lerner and Christopher A. Reed for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, Theresa A. Patterson and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Hector Casas appeals from an order denying his October 2006 motion to vacate his February 1989 conviction for possession of a machine gun in violation of Penal Code section 12220. Casas contends the advisements regarding potential immigration consequences that he received pursuant to section 1016.5 did not reflect the true immigration consequences that he faced and, accordingly, his nolo contendere plea was not knowing or voluntary. We disagree and affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
Casas alleges that he is a native and citizen of Mexico who entered the United States as a lawful permanent resident in 1980. On August 2, 1988, the Los Angeles County District Attorney charged Casas with a single count alleging that Casas “did willfully and unlawfully sell, offer for sale, possess, and knowingly transport a firearm of the kind known as a machine gun” in violation of section 12220, “a Felony.” On February 3, 1989, pursuant to a plea agreement, Casas, represented by counsel, pleaded nolo contendere to possession of a Sten automatic rifle. Under the terms of the agreement, the court suspended a one-year sentence, placed Casas on three years of formal probation, required him to serve 30 days in jail, fined him $2,000, and ordered him to pay $2,800 in assessments, surcharges, and restitution.
The record in this case provides no evidence in support of Casas’ factual assertions other than what is contained in the documents in the superior court file related to the charge, plea and sentence, and the transcripts of the hearing at which Casas pleaded nolo contendere and the hearing on the motion to vacate. All other “facts” in this background section only appear as allegations in Casas’ trial and appellate briefs.
Casas signed a form describing the consequences of his plea, commonly referred to as a Tahl waiver. (Tahl v. California (1970) 398 U.S. 911.) He initialed specific clauses in that form, including the 10th clause on the form that described the immigration consequences of the plea. The prosecutor advised Casas of his constitutional trial rights and the consequences of his plea. In response to the prosecutor’s questions, Casas acknowledged that he had read, understood, and initialed all the clauses concerning those rights and consequences on the form, and that he had discussed the ramifications of his plea with his counsel. Regarding potential immigration consequences, the prosecutor admonished, “Now, Mr. Casas, the next thing that I am about to tell you is not something that definitely will happen. It is simply a possibility, and I think that your counsel . . . has explained this to you. [¶] If you are not presently a citizen of the United States, it is possible that a plea to this count could result in your deportation, to your nonreadmittance to the United States or to a rejection of any application on your part for citizenship by way of naturalization. [¶] This is not a certainty. It is only a possibility that by law I am – I have to advise you of. [¶] Do you understand that?” Casas said yes. The court then accepted Casas’ waiver of his trial rights.
This clause reads, “I understand that if I am not a citizen of the United States, the conviction for the offense 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.”
Casas alleges the following: On October 20, 1997, after he successfully completed his probation, the former Immigration and Naturalization Service initiated deportation proceedings against him and ordered him deported on March 23, 1998. He appealed the deportation order to the Board of Immigration Appeals (BIA) and in federal court, including to the Ninth Circuit, but was unsuccessful. The BIA denied Casas’ final motion to reopen on February 18, 2004. On August 6, 2004, the United States Citizenship and Immigration Service approved him as the Beneficiary of an I-130 Petition for Alien Relative, which, except for the February 1989 conviction, would make him eligible to adjust his status to that of a lawful permanent resident. He has a wife and six children who are United States citizens, and they will all suffer undue hardship if he is deported and not allowed to return to the United States.
On October 25, 2006, Casas filed a motion to vacate the 1989 conviction, contending that he had not been adequately advised of the potential immigration consequences of his nolo contendere plea. On November 20, 2006, the trial court denied Casas’ motion, ruling that the motion was untimely and that Casas had been appropriately and sufficiently advised of the potential immigration consequences of his plea. Casas timely appealed. (See § 1237, subd. (b); People v. Totari (2002) 28 Cal.4th 876, 887.)
DISCUSSION
Casas contends that the advisement as to possible immigration consequences of his nolo contendere plea was insufficient, and that the prosecutor improperly trivialized those immigration consequences, negating the validity of his waiver. We disagree.
In 1989, as it still does, section 1016.5 provided that before accepting a guilty or nolo contendere plea, a court must advise a defendant that if he or she is not a United States citizen, conviction of the charged offense “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.” (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244.) To prevail on a motion to vacate for failure to comply with 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 a more than remote possibility that the conviction will lead to one or more of the three adverse immigration consequences; and (3) the defendant was prejudiced by the improper advisement. (People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.) To establish prejudice, the defendant must show that it was reasonably probable that he or she would not have pleaded guilty if properly advised. (Ibid.) “We review the trial court’s denial of the motion for abuse of discretion. [Citation.]” (Ibid.)
The record shows that the written form fully complied with the mandate of section 1016.5. (See People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.) Although Casas contends that his conviction of an aggravated felony under federal law made his deportation a certainty, rather than a possibility as the form and the prosecutor advised (see 8 U.S.C. §§ 1101, subd. (a)(43); 1228, subd. (c); 1229, subd. (d)(1); and 1182, subd. (a)(9)(A)(i)), deportation is always at the discretion of the United States Attorney General and thus is never a certainty. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 204-205.)
Because we find no abuse of discretion in the trial court’s determination that Casas received sufficient advisement under section 1016.5, we need not address the People’s argument regarding the timeliness of Casas’ motion.
Nor do we agree that the explanation by the District Attorney of immigration consequences so trivialized the warning that it deprived Casas’ plea of its voluntary and knowing nature. Although the District Attorney did somewhat downplay the consequences of the plea, his statements were accurate. Casas had previously reviewed the warnings in written form, had acknowledged with his initials that he read and understood them, and had discussed the matter with his counsel. Thus, the record supports the court’s conclusion that Casas’ plea was knowing and voluntary.
Casas also contends that the phrasing of section 1016.5, subdivision (a), and of the corresponding advisements he was given, is fundamentally ambiguous and misleading, because the use of the words “may” and “or” in the warning might lead a defendant to think that he or she might face any one of the three immigration consequences, but not more than one and not all three. Because Casas has not shown a reasonable probability that he would not have entered a plea but for the alleged ambiguity in the warning, we need not decide whether the statute and the corresponding Tahl waivers are or were ambiguous as Casas maintains. (See People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.) In his brief to the trial court, Casas argued only that he “lacked the knowledge that his plea would result in deportation, exclusion from admission or denial of naturalization” and that if he had known “the immigration consequences of pleading guilty, he never would have entered such plea.” Nowhere in the record does he ever claim that he was unsure of the meaning of “or” in the warnings or that this uncertainty affected his decision regarding the plea.
The warning required by section 1016.5, subdivision (a) reads, “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.)
DISPOSITION
The November 20, 2006 order denying Casas’ motion to vacate his February 3, 1989 conviction is affirmed.
We concur: MALLANO, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)