Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA204649, William N. Sterling, Judge.
Sharon Fleming, 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, Assistant Attorney General, Michael C. Keller and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Wagner Ubaldo Inga appeals the denial of his motion to vacate his no contest plea to a felony. He argues his motion should have been granted because he was not properly advised about the immigration consequences of his plea pursuant to Penal Code section 1016.5. We conclude the advice he received before entering his plea substantially complied with that statute.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
In January 2001, appellant pled no contest to a single charge of tampering with government records. (Gov. Code, § 6200.) He was not a citizen of the United States. Before he entered his plea, the trial court advised him that, among other things, his conviction would lead to “deportation, denial of naturalization, or exclusion from the borders of the United States.” When asked if he understood those consequences, appellant said “yes.” Appellant was convicted, imposition of sentence was suspended and he was placed on three years of formal probation.
In September 2006, appellant’s application for permanent residence was denied because of his conviction. He subsequently moved to vacate his no contest plea on the ground that he was not advised of its immigration consequences pursuant to section 1016.5, subdivision (a). In November 2006, the trial court denied his motion. This appeal followed.
DISCUSSION
Preliminarily, respondent argues this appeal must be dismissed because appellant did not obtain a certificate of probable cause pursuant to section 1237.5. But when a motion to vacate a plea pursuant to section 1016.5 is denied, “[t]he denial order is an appealable order under section 1237, subdivision (b).” (People v. Totari (2002) 28 Cal.4th 876, 887.) Section 1237, subdivision (b) is not subject to section 1237.5. Thus, no certificate of probable cause was required.
Appellant argues the trial court erred in denying his motion to vacate his plea under section 1016.5, subdivision (b). That statute provides, in relevant part, that if the court fails to advise the defendant according to section 1016.5, subdivision (a), “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.” (§ 1016.5, subd. (b).)
“‘To prevail on a motion to vacate under 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, 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.’ [Citations.]” (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244.) “We review the trial court’s denial of the motion for abuse of discretion. [Citation.]” (Ibid.)
Section 1016.5, subdivision (a) requires the trial court, before accepting a guilty or no contest plea, to advise the defendant as follows: “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.” The trial court advised appellant that “[i]f you are not a citizen of the United States, the plea would have dramatic impact on your status. It would lead to deportation, denial of naturalization, or exclusion from the borders of the United States.”
Appellant argues he was not advised of the immigration consequences of his plea because he was told his plea would result in “exclusion from the borders of the United States” rather than “exclusion from admission” to the United States. But “[t]he advisement need not be in the statutory language, and substantial compliance is all that is required, ‘as long as the defendant is specifically advised of all three separate immigration consequences of his plea.’ [Citation.]” (People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.) The admonition substantially complied with section 1016.5, subdivision (a), and the trial court did not abuse its discretion in so ruling.
Appellant argues the phrase “exclusion from the borders of the United States” did not warn him that he would lose his asylum status and his eligibility for permanent residency. But “a trial court does not have an obligation to advise on those immigration consequences that appellant may suffer other than the ones listed in section 1016.5.” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174, fn. 4.) The trial court warned appellant that his plea would subject him to exclusion, i.e., “‘“being barred from entry to the United States.” [Citation.]’” (Id. at p. 174, quoting People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 208.) Section 1016.5 did not obligate the trial court to further explain every ramification of that penalty.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.