Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Shari K. Silver, Judge. Los Angeles County Super. Ct. No. PA050332
Katz & Associates and David A. Katz for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Saul Gurrola Luna appeals from the trial court’s denial of his motion to vacate the judgment and withdraw his guilty plea pursuant to Penal Code section 1016.5, subdivision (b). He contends that he was not informed his guilty plea would cause him to be excluded from the United States, thus the advisement did not comply with the requirements of section 1016.5, subdivision (a). We conclude the advisement substantially complied with the statute and affirm the trial court’s order.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In the case at issue, defendant was charged with possession of cocaine base for the purpose of sale in violation of Health and Safety Code section 11351.5. On July 8, 2005, he entered a plea of guilty to that charge and was sentenced to three years in state prison. With regard to the effect of the plea on defendant’s immigration status, the deputy district attorney advised him as follows: “If you are not a citizen of the United States, your plea in this case will result in your being deported, denied reentry to the United States, and denied citizenship pursuant to the laws of the United States.” Defendant was asked if he understood that, and he replied, “Yes.”
The record does not contain a copy of the complaint or information. Although the plea transcript indicates that the People dismissed additional allegations after defendant entered his guilty plea, we do not know the nature of those allegations.
On February 13, 2008, defendant filed a motion to vacate the judgment of conviction and withdraw his guilty plea. He argued that he was not advised that his plea would result in his exclusion from the United States, as required by section 1016.5, subdivision (a). He acknowledged he had been told that he would be denied reentry into this country as a result of his plea, but asserted he did not understand he could be excluded forever. In support of his claim, he filed a declaration stating that after he was released from prison in 2006, he was promptly deported. A few days later, he appeared at the border, presented his California identification, and was allowed to reenter the country. Thus, in his mind there was a difference between denial of reentry and exclusion. Defendant was subsequently arrested for being a deported alien in the country. He urged that if he had known that he faced permanent exclusion from the United States by pleading guilty, he would have pursued his suppression motion and proceeded to trial.
Section 1016.5, subdivision (a) provides that prior to the acceptance of a plea of guilty or nolo contendere, 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.”
On March 21, 2008, after hearing oral argument, the trial court denied defendant’s motion, finding that the advisement was sufficient to comply with the requirements of section 1016.5, subdivision (a). On April 14, the court denied defendant’s motion for reconsideration.
This appeal followed.
DISCUSSION
“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. Totari (2002) 28 Cal.4th 876, 884.) We review the trial court’s denial of a motion to vacate the judgment for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
Defendant repeats the claim he presented in the trial court. He concedes that the plea advisement warned him that his guilty plea would result in his being denied reentry into this country. However, he contends the advisement “did not conform to the statutory mandate in section 1016.5, subdivision (a), [and] did not adequately convey to [him] that he would be permanently excluded from the United States. On the contrary, he reasonably thought that he might be denied reentry on occasion, but not forever.” The Attorney General responds that the advisement of immigration consequences was adequate because it substantially complied with the requirements of section 1016.5, subdivision (a). We agree.
In People v. Gutierrez (2003) 106 Cal.App.4th 169 (Gutierrez), the court was faced with the same issue. In that case, at the time of his plea, the defendant was advised, “‘If you are not a United States citizen, you will be deported from the United States, denied re-entry and denied amnesty or naturalization.’” (Id. at p. 171.) He claimed the advisement of the immigration consequences of his plea was defective because he was not told that he faced exclusion of admission to the United States, as required by the statutory language in section 1016.5, subdivision (a). The appellate panel disagreed. It held that “only substantial compliance is required under section 1016.5 as long as the defendant is specifically advised of all three separate immigration consequences of his plea. Appellant was expressly told that one of the immigration consequences of his conviction was that he would be denied reentry into the United States; in other words, under the statute, he would be excluded from the United States. The trial court, thus, substantially complied with the statute, and, hence, committed no error in the manner in which it took appellant’s plea.” (Id. at p. 174, fn. omitted.)
Defendant attempts to avoid the application of Gutierrez to his case by arguing that the court’s approval of the oral advisement is dictum. He notes Gutierrez also signed a written waiver form, advising him that his plea could result in his exclusion from admission to the United States. Thus, defendant contends Gutierrez held that the combination of the oral and written advisements satisfied section 1016.5, subdivision (a). He is mistaken.
As the quoted language above clearly states, the Gutierrez court held that what the defendant was told substantially complied with section 1016, subdivision (a) and sufficiently advised him of the immigration consequences of his plea. In addressing the significance of the written waivers, the court concluded: “Even if we were to consider the variance in language used by the prosecutor as reversible error in a vacuum, there was no such void, as any error was concurrently cured by the written waiver of rights form utilized by the trial judge in accepting the plea.” (Gutierrez, supra, 106 Cal.App.4th at pp. 174-175, italics added.) When it referred to the written plea form, the court set forth an additional ground for dismissing Gutierrez’s claim.
We agree with the holding in Gutierrez, and defendant’s claim of error fails as a result. Defendant was informed, in even stronger language than that required by section 1016.5, that his plea would result in his denial of reentry into the United States. As defendant was specifically advised of the three separate immigration consequences of his guilty plea, the trial court properly found that the advisement was sufficient.
Defendant contends he presented evidence establishing that he did not understand that denial of reentry and exclusion from the country were synonymous. He claims that he was allowed to reenter the country after a prior conviction, thus he had no reason to know that he could be excluded forever. He also points out that he was told he would be placed on parole and required to register as a narcotics offender upon his release from prison. He asserts the advisements make “sense only if [he] was not permanently excluded,” and served to add to his confusion.
Defendant had the burden of establishing by clear and convincing evidence the grounds for withdrawing his plea. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Suon (1999) 76 Cal.App.4th 1, 4.) He failed to do so. The trial court found there was no factual basis for granting defendant’s motion, noting that he had pled guilty to felonies on two other occasions, had received the same immigration admonition, and had responded that he understood the consequences of his guilty plea. Substantial evidence supports the trial court’s implied factual finding that defendant entered a guilty plea in this case with a clear understanding of the immigration consequences, and we are bound by that finding. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
The trial court did not abuse its discretion in denying defendant’s motion.
As defendant failed to establish that he was not properly advised of the immigration consequences of his plea, we need not address his claim of prejudice.
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.