Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. J177725
Lambden, J.
In 1999, defendant pleaded guilty to possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and received probation. Defendant is a native and a citizen of El Salvador and in 2006 he received a notice from the United States Department of Justice that his 1999 conviction subjected him to removal from the United States. In 2007, defendant moved to vacate the 1999 judgment, contending that the trial court’s advisements did not comply with Penal Code section 1016.5. The lower court denied the motion and defendant appeals. We conclude that defendant has failed to establish prejudice and affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
Defendant is a native and citizen of El Salvador and has lived in the United States as a lawful permanent resident since July 5, 1993. In February 1996, defendant pleaded guilty to violating Health and Safety Code section 11355.
On November 8, 1999, a three-count complaint charged defendant with the following crimes: willfully and unlawfully offering to transport, import into the State of California, sell, furnish, administer, or give away, or attempt to import into the state or transport cocaine base (Health & Saf. Code, § 11352, subd. (a)); willfully, knowingly, and actively participating in a criminal street gang (§ 186.22); and willfully and unlawfully resisting, delaying, and obstructing a police officer (§ 148, subd. (a)).
The court held a plea hearing on December 20, 1999. Prior to defendant’s guilty plea, the court asked defendant a variety of questions including the following: “And if you are granted probation and violate any of the terms of probation you may be sentenced to state prison without a trial; do you understand that?” Defendant responded, “Yes.” The court then asked if he understood the following: “And if you are not a citizen you can be deported or excluded from the United States?” Defendant responded: “I understand.” Defendant then pleaded guilty to possession of cocaine base for sale (Health & Saf. Code, § 11351.5) pursuant to a negotiated disposition.
The facts of the underlying crime are not at issue here. The only facts related to the underlying crime in the record are the allegations in the complaint filed on November 8, 1999.
On February 4, 2000, the trial court granted defendant three years of probation with a 90-day jail term. On August 2, 2000, defendant stipulated to a violation of his probation. Defendant was sentenced to a one-year term in county jail, and probation was reinstated. Defendant again admitted violating probation on November 19, 2002.
In 2006, defendant pleaded guilty of violating Health and Safety Code section 11364 (possession of narcotics paraphernalia) as well as to Penal Code section 653F, subdivision (d). Defendant received probation.
In August 2006, defendant received a notice from the United States Department of Justice that stated, because of his conviction on December 20, 1999, for violating Health and Safety Code section 11351.5, he was subject to removal from the United States. Defendant was placed in federal custody on these removal proceedings on October 22, 2006.
On January 23, 2007, defendant filed a motion pursuant to section 1016.5 to vacate the 1999 judgment and a petition asserting error coram nobis. Defendant contended that, at the hearing in 1999, the trial court had failed to provide him the advisements required under section 1016.5. Defendant proposed to enter a plea of guilty to the Health and Safety Code section 11352, subdivision (a), which was the originally charged offense and a greater offense than his conviction for Health and Safety Code section 11351.5.
In support of this motion, defendant declared that he had told his trial attorney that he feared a felony conviction because deportation might result. He stated that his attorney responded that a felony plea would not prevent his naturalization, and that naturalization would prevent deportation. Defendant also provided the court with his trial counsel’s declaration. In his declaration, trial counsel asserted that he had told defendant that he believed defendant could prevent being deported by becoming a United States citizen. Defendant also submitted in support of his section 1016.5 motion the declaration of his immigration attorney. His immigration attorney stated that defendant’s plea in December 1999, which is an aggravated felony under the Immigration and Nationality Act (21 U.S.C. § 801 et seq.), prevents defendant from establishing good moral character, renders him ineligible for relief from deportation, subjects him to indefinite detention, and prevents his naturalization. He further stated that the original charge of violating Health and Safety Code section 11352 did not constitute an aggravated felony because it included solicitation and transportation for personal use.
On March 12, 2007, the trial court denied defendant’s motion and petition. The court concluded that the record “makes plain” that defendant received inadequate advisements under section 1016.5. It noted that the first court mentioned deportation and exclusion from admission from the United States, but nothing in the record established that it advised defendant that the plea could also result in denial of naturalization. The current court therefore presumed that the first court failed to give the required advisement. The current court found, however, that the record did not establish that defendant still faced one or more of the statutorily specified immigration consequences. The record did not establish the date of the removal hearing and whether defendant had been already deported or was still physically present in this country.
Further, the current court determined that defendant failed to establish prejudice because the record indicated he had previously received the required advisements under section 1016.5 and his prior convictions also had immigration consequences. Defendant’s prior criminal history in the United States included two previous misdemeanor dispositions for narcotics-related offenses, and the record made clear that defendant had entered a plea of guilty in at least one of those cases in 1996, which was a misdemeanor violation of Health and Safety Code section 11355 (agreeing to sell, furnish, transport, give or administer rock cocaine and delivering a substance in lieu of rock cocaine). Thus, the court concluded that it was reasonable to presume that defendant had received the proper advisements under section 1016.5 when he pleaded no contest to violating Health and Safety Code section 11355 in 1996. Moreover, defendant’s prior convictions for these two other misdemeanors for narcotics-related offenses “seem to qualify facially as controlled substance-related offenses (21 U.S.C. § 802), and nothing in the pleadings indicates that these dispositions fall outside the ambit of the relevant immigration and nationality provisions.”
Defendant filed a timely notice of appeal from the denial of his section 1016.5 motion.
DISCUSSION
It is undisputed that defendant is not a citizen of the United States and, prior to his plea of guilty of violating Health and Safety Code section 11351.5, the first court should have advised him pursuant to section 1016.5. The first court gave a partial advisement under section 1016.5, but defendant maintains this incomplete advisement was inadequate and he would never have pleaded guilty to this offense had he known the immigration consequences. He therefore argues that the second court should have granted his motion to vacate his plea.
Section 1016.5 provides the following: “(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) . . . If . . . 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 . . . 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. . . .”
In order to prevail on a motion to vacate brought pursuant to section 1016.5, a defendant must show that: “(1) he or she was not properly advised of the immigration consequences as provided by [section 1016.5]; (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.” (People v. Totari (2002) 28 Cal.4th 876, 884.) With respect to prejudice, a defendant “must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised.” (Ibid.) “Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. [Citation.] Thus, in deciding the merits of defendant’s motion to vacate, it may be important for the trial court to determine the factual issue of knowledge.” (Ibid.)
We review a trial court’s ruling on a motion to vacate a plea under the standard of abuse of discretion. (See, e.g., People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) An abuse of discretion is shown when the court exercises its discretion in an arbitrary, capricious, or patently absurd manner. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
In the present case, the second court ruled that the first court gave inadequate advisements at the plea hearing. Although defendant expressly stated at the plea hearing that he understood that he could be deported or excluded from the United States, he received no advisement that a consequence could be the denial of naturalization. The second court denied defendant’s section 1016.5 motion, however, because it found that defendant failed to establish that the conviction had an adverse immigration consequence or that he was prejudiced by the nonadvisement. The People agree with the latter two findings of the lower court, but they argue that the court abused its discretion when making its first finding because there was substantial compliance with the advisement requirements. (See Zamudio, supra, 23 Cal.4th at pp. 207-208.) We need not determine whether the advisements were sufficient under Zamudio, because we affirm on the basis that defendant failed to establish prejudice.
Defendant asserts that, once he demonstrated that the admonishments were inadequate, the People had the burden to establish prejudice. Defendant is clearly incorrect. The Supreme Court in Zamudio, supra, 23 Cal.4th at page 209, reversed the lower court after concluding the lower court erred “in failing to require that defendant demonstrate prejudice in connection with his section 1016.5.”
When making this argument, defendant cites People v. Dubon (2001) 90 Cal.App.4th 944. Dubon, however, provides no support for defendant’s argument. Indeed, the Dubon court pronounces: “To prevail on a motion brought pursuant to Penal Code section 1016.5, a defendant must establish: (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, i.e., if properly advised, he or she would not have pleaded guilty or nolo contendere.” (Id. at pp. 951-952, italics added.)
When ruling on defendant’s section 1016.5 motion, the trial court found that defendant knew about the potential immigration consequences because he had pled guilty to another misdemeanor in 1996, which required these advisements. Defendant contends that this finding by the trial court was based on speculation and argues that “the trial court did not establish proof of any previous admonishment” of defendant. Defendant misconstrues the role of the trial court. The trial court does not “establish proof”; rather, the trial court makes findings based on the evidence presented to it by the parties. Defendant had the burden of proof.
The trial court noted that defendant had two prior misdemeanor convictions, and defendant never disputes this. The record only documents the guilty plea in 1996 to violating Health and Safety Code section 11355.
Here, the record established that defendant had pled guilty in 1996 to a misdemeanor that required the trial court to give the section 1016.5 advisements. Defendant provided no evidence that he did not receive the required advisements at the 1996 hearing. The second court could infer that, although the court in 1999 advised defendant only about the possible deportation and exclusion consequences, defendant knew there could be possible naturalization consequences as a result of his receiving the complete advisements at his earlier plea hearing in 1996. Accordingly, it concluded that defendant knew about the immigration consequences and it is not reasonably probable that his plea would have been different had the court in 1999 given him a complete advisement under section 1016.5.
Defendant argues that prior advisements do not establish knowledge. However, our Supreme Court has expressly stated that a defendant’s knowledge of the potential immigration consequences has bearing on the question of establishing prejudice from inadequate advisements at the time of the plea. (People v. Totari, supra, 28 Cal.4th at p. 878.) The fact that defendant had pled guilty in the past to a crime that required the section 1016.5 advisements provided some evidence of knowledge and supported the lower court’s finding of no prejudice.
Defendant quotes the following language in Zamudio, supra, 23 Cal.4th at page 204, to support his position that prior advisements are irrelevant: “We see no significance for present purposes in defendant’s having received some immigration advisements in 1990. The mandated advisement refers to ‘the offense for which you have been charged’ (§ 1016.5, subd. (a)) and no other. Defendant cannot in 1990 have been advised––adequately or otherwise––about the possible consequences of a no contest plea he would enter in 1992 to criminal charges brought against him that same year.” However, the sentences quoted by defendant concerns the People’s argument of laches; this quoted material is not from the discussion on prejudice. The People have the burden of establishing laches and the People did not meet this burden in Zamudio because they failed to establish that the prior advisements had any particular relevance to when the defendant realized the consequences from his later conviction. (Id. at pp. 204-205.) As already emphasized, the defendant has the burden of establishing prejudice. Indeed, defendant ignores that, after denying the People’s defense of laches, the Supreme Court also rejected the defendant’s contention that he did not need to establish prejudice. (Id. at p. 210.)
Defendant states that knowledge of immigration consequences is relevant to the requirement of due diligence, but he claims that it is irrelevant to the question of prejudice. We agree that prior advisements are relevant to the question whether the defendant moved to change his plea with reasonable diligence (Zamudio, supra, 23 Cal.4th at pp. 203-204), but they are also germane to the issue of prejudice. A defendant cannot establish prejudice if he previously received the immigration advisements and indicated that he understood them. This is especially true in the present case where there was not a complete absence of any advisements. At the 1999 hearing, defendant stated that he knew his plea could have the consequences of deportation and exclusion from admission to the United States. Thus, given that defendant received a partial advisement combined with evidence in the record indicating that he previously received a complete advisement, the record supported the trial court’s factual finding of knowledge and no prejudice. (See, e.g., People v. Totari, supra, 28 Cal.4th at p. 884.)
Defendant contends that he did establish prejudice by submitting proof that his family and fiancé are in the United States and that the immigration consequences of his plea were of utmost importance to him. We agree that defendant has presented evidence that he wanted to remain in the United States and that members of his family live in the United States. However, at the plea hearing, defendant stated that he understood that his conviction could result in his deportation or exclusion from the United States. Thus, he was clearly willing to accept the plea despite knowing it could have immigration consequences.
Defendant claims his situation is similar to the one in People v. Bautista (2004) 115 Cal.App.4th 229 (Bautista). His reliance on this case, however, is misplaced. Bautista did concern inadequate advisements under section 1016.5, but it was not an appeal from the denial of a motion to vacate the judgment. Instead, it was a claim of ineffective assistance of counsel, which was raised in a petition for writ of habeas corpus. The defendant in Bautista alleged that he was prejudiced by his trial counsel’s deficient representation because his attorney failed to advise him that deportation and exclusion from readmission were consequences of his plea and his counsel did not attempt to negotiate a plea deal that would not have resulted in deportation. (Id. at p. 237.) The appellate court issued an order to show cause to the trial court for a hearing to take evidence and resolve factual issues relating to defendant’s legal advice at the time of his plea. (Id. at p. 242.)
The present case is clearly distinguishable from the situation in Bautista, supra, 115 Cal.App.4th 229. Firstly, Bautista concerns prejudice resulting from the trial counsel’s failure to advise the defendant about the particular consequences of a plea bargain. The case before us concerns the prejudice resulting from the trial court’s incomplete advisements under section 1016.5. While the role of the trial attorney is to advise his or her client of the particular consequences of a plea, the trial court’s obligation is simply to provide general advisements required under section 1016.5. Thus, the question of prejudice for purposes of an ineffective counsel claim is not the same as the issue of prejudice for an inadequate trial advisements claim. Secondly, the appellate court in Bautista did not hold that defendant had established prejudice; it simply determined that the defendant had made a “persuasive case” if he prevailed with a referee. (Bautista, supra, at p. 241.) The Bautista court concluded that there should be a hearing on the defendant’s ineffective assistance claim. Here, defendant had his hearing on his motion to vacate the judgment and the trial court, after considering all of the evidence presented, found no prejudice.
Not only did defendant plead guilty to violating Health and Safety Code section 11355 in 1996, he pleaded guilty to violating Health and Safety Code section 11364 (possession of narcotics paraphernalia) in 2006. The fact that defendant has repeatedly pled guilty to offenses––despite these offenses having possible immigration consequences, including naturalization consequences––indicates that his plea in the present case would have been no different had he been told there was a possible naturalization consequence.
Defendant contends that his 1999 conviction is for an aggravated felony (8 U.S.C. § 1101(a)(43)), which precludes a finding of good moral character and permanently prevents naturalization pursuant to title 8 United States Code section 1101(f)(8). He asserts that none of his prior offenses was an aggravated felony, and therefore none of his other convictions constitute a permanent bar. If he had pleaded guilty to the greater offense of Health and Safety Code section 11352, defendant claims the mandatory deportation law would not have been triggered. Instead, according to defendant, his eligibility for naturalization would have depended on his establishing good moral character.
It may be true that defendant’s plea resulted in a permanent bar to naturalization while a plea to violating Health and Safety Code section 11352 would have only resulted in a temporary bar. That, however, has no bearing on any prejudice he may have suffered from the trial court’s failure to advise him that his plea may have naturalization consequences. Defendant admits that he would have pleaded guilty to Health and Safety Code section 11352. Such a plea may have different consequences to him, but it required the identical advisement by the court. Thus, it is clear that it is not the court’s failure to advise him about possible naturalization consequences that would have made any difference to his plea. Rather, it was his knowledge of the actual naturalization consequences that would have affected his plea. The trial court, however, had no obligation to advise him on the duration of the potential consequences of immigration. (See, e.g., People v. Gutierrez (2003) 106 Cal.App.4th 169, 174, fn. 4.) “[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. Barocio (1989) 216 Cal.App.3d 99, 105 . . . [no obligation to advise on right to request a ‘recommendation against deportation’ under 8 U.S.C. former § 1251(b)(2)].)” (Ibid.) The trial court was not obligated to tell defendant that his plea could result in a permanent bar to his naturalization. Rather, the court was simply obligated to admonish him that his plea could result in the denial of his naturalization. Consequently, the court’s failure to provide such a general advisement resulted in no prejudice to defendant.
We conclude that the second court did not abuse its discretion in denying defendant’s section 1016.5 motion as defendant failed to establish any prejudice resulting from the first court’s failure to advise him that his plea could have naturalization consequences.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.