Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. MF37635B Brian L. McCabe, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J., and Kane, J.
FACTS AND PROCEEDINGS
On January 30, 2004, a criminal complaint was filed alleging appellant, Alejandro Fierro-Trejo, transported marijuana (Health & Saf. Code, § 11360, subd. (a), count one), possession of marijuana for sale (Health & Saf. Code, § 11359, count two), transportation of cocaine (Health & Saf. Code, § 11352, count three), possession of cocaine for sale (Health & Saf. Code, § 11351, subd. (a), count four), and possession of cocaine (Health & Saf. Code, § 11350, count five).
On March 22, 2004, appellant executed an advisement of rights, waiver, and plea form (plea form). Appellant acknowledged discussing his case with his attorney, including the possible consequences of his plea. Appellant acknowledged and waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant waived his right to a preliminary hearing. Appellant acknowledged a sentence range of sixteen months, two, or three years on count two and three, four, or five years on count three. Under the plea agreement, appellant would admit counts two and three, be placed on probation, and spend ten months in jail. Appellant admitted a factual basis for his plea. Appellant acknowledged that if he is not a citizen, he could be deported.
At 1:30 a.m. on January 4, 2004, California Highway Patrol officers in a marked vehicle saw appellant’s car pass through an intersection without a light illuminating the rear license plate. The officer’s stopped appellant, who appeared nervous and fidgety. The officers learned and confirmed that appellant was on probation with a search condition. When asked if he had anything in the car, appellant admitted he had a pound of marijuana under the passenger seat. A probation search of the car yielded a large quantity of marijuana and an ounce of cocaine.
Appellant initialed a statement in box number 16 of the plea form stating: “I understand that if I am not a citizen, my guilty or no contest plea will result in my deportation (removal), exclusion from admission to the United States, and denial of naturalization.”
On March 22, 2004, the trial court established that appellant read and executed the plea form. The court again advised appellant of his constitutional rights. Appellant pled no contest to counts two and three. Appellant waived preparation of a probation report. The court placed appellant on felony probation for three years upon various terms and conditions, including that he spend ten months in jail.
On March 9, 2007, the court extended appellant’s probation for a year. On August 2, 2007, appellant waived his right to a hearing and admitted allegations that he failed to abstain from intoxicating beverages and used marijuana. The court terminated appellant’s probation and sentenced appellant to prison for four years on count three and a concurrent term of two years on count two. On August 16, 2007, the court ordered appellant to pay a restitution fine and awarded him custody credits of 642 days.
On August 12, 2008, appellant filed a petition for a writ of habeas corpus contending he was not advised that as a result of his plea, he could be deported. Appellant also filed a statutory motion pursuant to Penal Code section 1016.5 to withdraw his plea based on the alleged failure of the court to advise him that he could be deported after entering his plea.
All further references are to the Penal Code unless otherwise indicated.
On September 9, 2008, the trial court conducted a brief hearing on appellant’s petition and motion. The court took the matter under submission.
On November 24, 2008, the trial court filed a written opinion denying appellant’s petition for writ of habeas corpus and his statutory motion to withdraw his plea pursuant to section 1016.5. The court noted appellant had executed a plea form with the advisement that if appellant was not a citizen, his guilty or no contest plea would result in his “‘deportation (removal), exclusion from admission to the United States, and denial of naturalization.’”
Section 1016.5 provides in relevant part:
The court noted that section 1016.5 does not require an oral advisement from a judge. Appellant acknowledged to the court that he understood the advisements on the plea form, had an opportunity to discuss the consequences of his plea with his counsel and his signature was on the plea form. The court concluded appellant was properly advised of the immigration consequences of his plea.
The court cited People v. Ramirez (1999) 71 Cal.App.4th 519, 521-523, a case from this court finding that section 1016.5 does not require an oral advisement from the trial court concerning the immigration consequences of a plea of guilty or nolo contendere and holding that an advisement in a plea form is sufficient.
The court further rejected appellant’s argument that his trial counsel’s representation was ineffective for counsel’s failure to read or explain the advisements in the plea form. Appellant filed a declaration stating he did not read or understand the plea form and that his trial counsel did not read or explain the plea form to him. The court found that appellant’s initials next to the advisement concerning the immigration consequences of his plea show appellant was in fact adequately advised of the consequences of his plea and appellant failed to show his trial counsel was responsible for any failure by appellant to understand the advisement. The court also found that appellant twice acknowledged he understood the consequences of his plea. The court found appellant’s self-serving statements to be insufficient by themselves to meet the necessary showing of prejudice necessary to establish ineffective assistance of counsel.
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel stating that appellant was advised he could file his own brief with this court. By letter on April 24, 2009, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
Appellant’s appeal of the trial court’s ruling on his section 1016.5 motion is an appealable order. (People v. Totari (2002) 28 Cal.4th 876, 887.) Appellant failed to obtain a certificate of probable cause. Any other potential issues concerning his change of plea cannot, therefore, be reviewed on appeal. (People v. Pannizon (1996) 13 Cal.4th 68, 77-79) Such issues are further barred because the time for appeal from appellant’s change of plea passed 60 days after he entered his plea and the court placed him on probation on March 22, 2004. (See Cal. Rules of Court, rule 8.308(a).)
DISPOSITION
The judgment is affirmed.
“(a) 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.
“(b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. 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.”