Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD204688 Honorable David J. Danielsen, Judge.
NARES, Acting P.J.
In April 2007 Vicente Liboon Foster pleaded guilty to assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). The remaining charges were dismissed, and the court sentenced Foster to three years in state prison. In September 2008 Foster was released by the California Department of Corrections and Rehabilitation and detained by the U.S. Department of Homeland Security, Bureau of Immigration and Customs Enforcement, on an immigration detainer. Deportation proceedings commenced as a result of Foster's assault with a deadly weapon conviction. In January 2009 Foster filed a motion to vacate the judgment on the ground the trial court failed to properly advise him under section 1016.5 of the possible immigration consequences. The court denied the motion.
All statutory references are to the Penal Code unless otherwise specified.
Foster appeals, contending that the trial court erred in denying his motion to vacate the judgment because (1) Foster was unaware he was not a citizen, and therefore his plea was not made knowingly and intelligently; (2) the court did not orally advise him of the possible immigration consequences before the court accepted his 2007 guilty plea; and (3) defense counsel was constitutionally ineffective for failing to inquire into his immigration status. We conclude the trial court properly denied Foster's motion to vacate the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Underlying the Guilty Plea
The factual background of the underlying criminal conviction is substantially abbreviated because it is only marginally relevant to the issues presented on appeal.
Foster's guilty plea arose from a domestic altercation between Foster and his ex-girlfriend, Michelle Priebe. The incident occurred after Foster went to Priebe's house uninvited and then went to a friend's house where Priebe was located. Foster was intoxicated when he arrived at the friend's house, and Priebe drove him back to her house but told him that he had to leave. Foster began yelling at Priebe and followed her to the front gate with a screwdriver. Foster held the screwdriver near Priebe's head, made a "screwing motion," and threatened to "screw some brains into her head." Foster pushed Priebe to the ground when she tried to walk away from the house. Priebe then called the police.
B. Change of Plea Proceeding
Foster read and signed a felony change of plea form whereby he pleaded guilty to assault with a deadly weapon with force likely to cause great bodily injury, in violation of section 245, subdivision (a)(1). On page 2 of the plea form under the section titled "Consequences of Plea of Guilty or No Contest," Foster specifically initialed paragraph 7d, which advised him of three possible immigration consequences:
"I understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my removal/deportation, exclusion from admission to the U.S. and denial of naturalization. Additionally, if this plea is to an 'Aggravated Felony' listed on the back of this form, then I will be deported, excluded from admission to the U.S., and denied naturalization."
At the change of plea hearing, the court asked Foster if he had enough time to talk to his lawyers, whether he understood what he was doing, and whether he understood his options. The court also asked Foster whether he had read, understood, signed and initialed the change of plea form. Foster replied "yes" to each of the court's questions regarding the plea form. The court accepted the plea and found there was "an adequate factual basis, there is a knowing, voluntary, intelligent waiver of constitutional rights. This defendant does understand the nature of the charge and the consequences of his plea." The Court expressly found that "the defendant's plea and admissions are freely and voluntary made; the defendant understands the nature of the charges and the consequences of the plea and admissions." The court sentenced Foster to three years in state prison.
C. Motion To Vacate
In January 2009 Foster filed a section 1016.5 motion to vacate the judgment. In a declaration accompanying the motion, Foster argued that he never would have entered his guilty plea had he known of the actual immigration consequences of his plea, and he would have instead exercised his right to a jury trial. In her declaration, Foster's attorney stated she had no recollection of reading Foster the section of the change of plea form pertaining to immigration consequences, but that it is her practice to go over all paragraphs of a plea deal with her clients. Defense counsel also confirmed by her signature on the change of plea form that she "personally read and explained to the defendant the entire contents of this plea form and any addendum thereto." Counsel further acknowledged that she "discussed all charges and possible defenses with the defendant, and the consequences of this plea, including any immigration consequences." The trial court denied Foster's motion to vacate the judgment.
DISCUSSION
A. Applicable Legal Principles
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." Section 1016.5, subdivision (b) provides that if the court does not advise the defendant of those possible immigration consequences, it shall, on the defendant's motion, vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty.
We apply the abuse of discretion standard in reviewing a trial court's order denying a section 1016.5 motion to vacate the judgment and withdraw a guilty plea. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
B. Analysis
1. Knowing and voluntary plea
Foster first contends that because he was unaware that he was not a U.S. citizen, he did not knowingly enter into his plea agreement. A plea is knowing and intelligent when it is " ' " 'made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.' " ' " (People v. Collins (2001) 26 Cal.4th 297, 305, quoting Colorado v. Spring (1987) 479 U.S. 564, 573.) A plea is voluntary if it is " ' " 'the product of a free and deliberate choice rather than intimidation, coercion, or deception.' " ' " (Ibid.) Whether the plea was voluntary and intelligent must be viewed under the totality of the circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 360.)
Here, Foster's alleged mistake of fact regarding his own immigration status does not render his guilty plea invalid because Foster read and signed the guilty plea form, and specifically initialed the box indicating he understood the possible immigration consequences. At the hearing, the court confirmed that Foster reviewed the contents of the plea form with his attorney and understood his rights and legal options, and Foster acknowledged his guilty plea was in his best interest. We conclude Foster knowingly and intelligently entered his guilty plea.
2. Notice of immigration consequences
We also reject Foster's contention that the trial court erred by not orally advising him of the possible immigration consequence of his guilty plea. In People v. Ramirez (1999) 71 Cal.App.4th 519, the court concluded section 1016.5 does not require a trial court to orally advise a defendant of the possible immigration consequences of a guilty plea, and the written change of plea form signed by the defendant satisfied the section 1016.5 requirements. (Ramirez, at pp. 521-523.) Ramirez noted, "there is no language [in section 1016.5] which states the advisements must be verbal, only that they must appear on the record and must be given by the court." (Ramirez, at p. 521.) Citing In re Ibarra (1983) 34 Cal.3d 277, it noted the "Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court. [Citation.]" (Ramirez, 71 Cal.App.4th at p. 521.)
Neither the language nor the purpose of section 1016.5 requires a trial court to orally advise a defendant of the possible immigration consequences before accepting a guilty plea. Rather, a written change of plea form describing those possible immigration consequences may, if duly signed and understood by the defendant after having an opportunity to review it and ask questions of his counsel, satisfy the section 1016.5 requirements. (Ramirez, supra, 71 Cal.App.4th at pp. 521-523.) The legislative purpose of section 1016.5 is to ensure the defendant has actual knowledge of the possible immigration consequences of a guilty plea and has had an opportunity to consider them. (Ramirez, supra, at p. 522.) A ritual oral recitation by a trial court of the possible immigration consequences of a guilty plea adds little to a defendant's actual knowledge of those consequences if the defendant has previously read and understood the written form describing those possible consequences. (In re Ibarra, supra,34 Cal.3d at p. 286.)
Here, the record contained a copy of the change of plea form signed by Foster, which advised him of all three possible immigration consequences. The trial court also asked Foster whether he reviewed the form with his attorney and understood it. Foster replied "yes" to the court's inquiry. We conclude the trial court properly met all section 1016.5 advisement requirements.
3. Ineffective assistance of counsel claim
Foster also contends trial counsel's lack of inquiry into his immigration consequences constituted ineffective assistance of counsel. This contention is unavailing.
Defendants have a constitutional right to the effective assistance of counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335, 339-340.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney, and counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 425.)
To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) The California Supreme Court has held "that affirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel," but has expressly declined to "address whether a mere failure to advise could also constitute ineffective assistance." (In re Resendiz (2001) 25 Cal.4th 230, 240.)
Foster has not shown ineffective assistance of counsel because he has not demonstrated prejudice from counsel's asserted failure to inquire into his immigration status, and he has not demonstrated counsel failed to act in a manner expected of a reasonably competent attorney. (Strickland, supra, 466 U.S. at pp. 687-688, 691-692.) Foster read and signed a felony change of plea form whereby he pleaded guilty. On page 2 of the plea form under the section titled "Consequences of Plea of Guilty or No Contest," Foster specifically initialed paragraph 7d, which advised him of the immigration consequences of a guilty plea. At the hearing, Foster acknowledged that he read, signed, and understood the contents of the form. Further, Foster cannot establish prejudice because even if counsel had asked Foster where he was born, Foster believed at the time of the guilty plea that he was a U.S. citizen. In his declaration supporting his motion to vacate his conviction, Foster stated, "Because I believed that my adoption by Charles Foster[] made me a citizen of the United States, it never occurred to me that my guilty plea could result in deportation."
The record demonstrates the court did not abuse its discretion by declining to find Foster was operating under mistake, ignorance, inadvertence, fraud, duress, or other factor preventing him from exercising his free judgment. The trial court properly denied Foster's section 1018 motion to vacate the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.