Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07903047, Arlan L. Harrell, Judge.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting, P.J., Cornell, J., and Kane, J.
Appellant, Juan Carlos Benito Hernandez, pled no contest to inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd, (e)).
On November 2, 2007, the court suspended imposition of judgment and placed Hernandez on probation for three years on the condition he serve 365 days in local custody.
On appeal, Hernandez contends: 1) the court abused its discretion when it denied his motion to vacate the judgment; and 2) the court violated the terms of his plea bargain. We will affirm.
FACTS
In the early morning hours of April 14, 2007, appellant, Juan Carlos Benito Hernandez, was intoxicated when he and his wife began arguing over his inability to obtain employment because of his criminal record. When his wife stated she was leaving and taking the children, Hernandez became more upset and told her she was not going anywhere. He then attempted to prevent her from leaving and punched her on her left arm three times. After Hernandez’s wife managed to get to the living room, Hernandez placed a belt around her neck and began choking her and pulling her hair. Meanwhile, two of their children began hitting Hernandez and yelling at him to stop. Soon after Hernandez’s wife managed to get away from Hernandez, the police arrived and arrested him.
On July 6, 2007, the district attorney filed an information charging Hernandez with inflicting corporal injury on a spouse (count 1/Pen. Code, § 273.5, subd. (e)), assault with a deadly weapon (count 2/Pen. Code, § 245, subd. (a)(1)), false imprisonment (count 3/ Pen. Code, § 236), disobeying a court order (count 4/Pen. Code, § 166, subd. (a)(4)), and three counts of cruelty to a child (counts 5-7/Pen. Code, § 273a, subd. (b)).
On October 4, 2007, Hernandez pled no contest to spousal abuse in exchange for a grant of probation and the dismissal of the remaining counts with the prosecutor reserving the right to comment. Prior to entering his plea, Hernandez filled out a change of plea form including the portion wherein he acknowledged that he understood that his plea could result in his “deportation, exclusion from admission and/or denial of naturalization.”
During the change of plea proceedings the following colloquy occurred:
“THE COURT: You understand if you are not a citizen of the United States that your plea can result in your being deported, excluded from admission or denied naturalization?
“[HERNANDEZ]: Yes.”
On November 2, 2007, the court placed Hernandez on probation on the condition he serve 365 days in local custody.
On August 14, 2008, Hernandez, who was then represented by a different defense counsel, filed a motion to vacate his conviction pursuant to Penal Code section 1016.5.
On September 25, 2008, the court heard and denied Hernandez’s motion.
On October 22, 2008, Hernandez filed an appeal challenging the denial of his motion to vacate. Hernandez never appealed from his original sentence.
DISCUSSION
Hernandez contends that Penal Code section 1016.5 requires not only the court, but also defense counsel, to explain the immigration consequences of his plea. He further contends that his original defense counsel provided ineffective representation because he did not investigate the immigration consequences of his plea and advise him of those consequences. Thus, according to Hernandez, the court erred when it denied his motion to vacate his plea. We will reject these contentions.
“Before a state court accepts a plea of guilty or no contest, section 1016.5 requires that the court advise the defendant that if he or she is not a citizen, the conviction ‘may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.’ (§ 1016.5, subd. (a).) The statute further provides that if ‘ the court fails to advise the defendant as required’ and the defendant shows that the conviction may have adverse immigration consequences, then the court shall, on the defendant's motion, vacate the judgment and allow the defendant to withdraw the plea. (§ 1016.5, subd. (b), italics added.) To obtain relief under section 1016.5, a defendant thus must demonstrate that (1) the court taking the plea failed to advise the defendant of the immigration consequences as provided by section 1016.5 , (2) as a consequence of conviction, the defendant actually faces one or more of the statutorily specified immigration consequences, and (3) the defendant was prejudiced by the court's failure to provide complete advisements. [Citation.] We review the trial court’s ruling denying the motion to vacate judgment for abuse of discretion. [Citations.]” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287, italics added.)
The court complied with Penal Code section 1016.5 when it advised Hernandez of the immigration consequences of his plea orally during the change of plea hearing and in writing through the change of plea form. Further, Hernandez’s claim that he was denied the effective assistance of counsel is not a purported wrong encompassed by Penal Code section 1016.5. (People v. Kim (2009) 45 Cal.4th 1078, 1107, fn. 20, accord, People v. Chien, supra, 159 Cal.App.4th at p. 1290.) Thus, we conclude that the trial court did not abuse its discretion when it denied Hernandez’s motion, pursuant to Penal Code section 1016.5, to vacate his domestic violence conviction.
The Alleged Violation of Hernandez’s Plea Bargain
Hernandez contends the court violated the terms of his plea bargain when it sentenced him to one year local time because there was no mention during the change of plea proceedings that his plea would require him to serve any jail time. We will conclude that this claim is not cognizable.
“An appeal in a criminal case is taken by filing a notice of appeal within 60 days after the rendition of judgment. [Citation.] ‘[T]he sole required procedural step of filing a notice of appeal is critical to rendering the appeal operative following a judgment of conviction. In general, a timely notice of appeal is “ ‘essential to appellate jurisdiction.’ [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] An untimely notice of appeal is ‘wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion.’ [Citation.]” ’[Citation.]” (People v. Byron (2009) 170 Cal.App.4th 657, 664-665.)
On November 2, 2007, the court placed Hernandez on probation and ordered him to serve 365 days as a condition of probation. Hernandez did not appeal from that judgment within 60 days. Thus, his contention that the trial court violated the terms of his plea bargain is not cognizable on this appeal, which was filed on October 22, 2008.
DISPOSITION
The judgment is affirmed.