Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 162343
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Jose Inez Medina appeals from the superior court’s order denying his statutory motion to vacate the judgment pursuant to Penal Code section 1016.5, in which he alleged that the trial court failed to advise him of the immigration consequences of his 1993 pleas of no contest to seven drug offenses. In 2006, defendant appealed from the trial court’s denial of his petition for writ of error coram nobis, premised upon his counsel’s failure to advise him of the immigration consequences of his pleas. We dismissed that appeal in an unpublished opinion for failure to state a prima facie case. (People v. Medina, H029870, decided 4/27/07.) In this appeal, we affirm the trial court’s order.
Unless otherwise indicated, all further statutory references are to the Penal Code.
HISTORICAL AND PROCEDURAL FACTS
According to the probation report prepared for defendant’s sentencing hearing in 1993, on September 1 and 16, October 5, and November 13, 1992, defendant sold cocaine to an undercover police officer. On November 13, 1992, search warrants were executed at defendant’s apartment and place of business and additional quantities of cocaine were found at both places. Defendant told the probation officer that he came to the United States illegally from Mexico in 1979, “went to college, learned English, became certified as a nursing assistant, ” and worked his way up from a dishwasher in a Mexican restaurant to a restaurant owner in his own right. He “became involved in the sale of drugs in an effort to dig himself out of financial difficulties.” Defendant and his wife were in danger of losing their home as well as their restaurant business. Although they declared bankruptcy in April 1992, creditors continued to hound them. “Being unable to pay these people off, and unable to buy the necessities of life for his family, he turned to selling drugs.”
On April 28, 1993, defendant pleaded no contest to five counts of controlled substance sales, and two counts of possession of a controlled substance for sale. (Health & Safety Code, §§ 11352, subd. (a), 11351.) He also admitted, as to one of the counts, that he possessed more than 28.5 grams of cocaine and was therefore ineligible for probation. (§ 1203.073, subd. (b)(1).) The minute order for April 28, 1993, contains a box next to the phrase “ADVISED OF IMMIG. STATUS.” The box is not checked. Defendant was sentenced to prison for three years.
According to the memorandum of points and authorities in support of his statutory motion to vacate, “[i]n 1994 the former INS initiated deportation proceedings against Mr. Medina with the issuance of an Order to Show Cause, charging him as deportable as an alien convicted of a drug trafficking offense, ” for violating Health and Safety Code section 11351. On November 24, 2004, an immigration judge ordered Mr. Medina removed. He appealed that decision.
On August 23, 2005, an employee of the Santa Clara County Superior Court wrote a letter “To Whom It May Concern” advising that there were no transcripts from defendant’s case, People v. Medina, 162343, “[d]ue to the fact that the case is over 10 years old.” In October 2005, defendant, through counsel, filed a petition for writ of error coram nobis in Santa Clara County Superior Court. On December 8, 2005, by written order stating its reasons, the superior court denied the coram nobis petition without a hearing.
According to the memorandum of points and authorities filed below, on February 10, 2006, defendant’s immigration appeal was dismissed.
On April 27, 2007, this court issued its decision. With respect to defendant’s argument on appeal that the trial court failed to advise him of the consequences of his plea, this court said:
“Defendant next argues that the trial court should have granted the writ on the ground that the trial judge who took his 1993 pleas did not advise him of the immigration consequences of his pleas, as required by... section 1016.5. ‘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.’ (People v. Totari [2002] 28 Cal.4th 876, 884 [Totari].) [¶] Assuming it is true, as the unchecked box on the minute order suggests, that the trial court failed to advise defendant of the immigration consequences of his plea, defendant is not entitled to any relief. In the first place, his petition did not allege that the trial court failed to advise him of the immigration consequences of his plea; he alleged, and argued in his memorandum of points and authorities, only that his counsel, Mr. Thompson, failed to so advise him. He did not allege any immigration consequences, and he did not allege that he was prejudiced by the nonadvisement. He admits as much in his opening brief, but argues that he should not be ‘penalized by the inartful pleading of counsel’ and ‘any problems of pleading could have been corrected had the trial court allowed [him] a hearing on the matter....’ Appellate counsel’s arguments on appeal are no substitute for verified factual allegations by the coram nobis petitioner, and the trial court was not permitted, much less required, to grant a hearing on the basis of a complete failure to specify facts that might give rise to a claim for relief. (Cf. People v. Goodspeed (1963) 223 Cal.App.2d 146, 156 [‘However laudable the objective, it cannot be attained... by the unjustified use of legal process whose scope is extremely narrow [citations] under circumstances where the essential requisites for the issuance of the writ have not been shown to exist’].) Defendant did not make a prima facie showing of merit on this claim. Accordingly, the trial court did not err in denying the petition on this ground.”
In the footnote we observed: “However, defendant argued in his memorandum of points and authorities: ‘[I]t is doubtful that [he] even understood the § 1016.58 [sic] admonition given to him by the district attorney.’ He fails to mention whether the admonition was given at the trial court’s request.” Having concluded that “defendant has not made a prima facie showing of merit on any of his claims for relief, ” we dismissed the appeal.
On October 6, 2009, the Department of Homeland Security ordered defendant’s wife, the obligor of the immigration bond that was posted for defendant, to deliver him to the Immigration and Customs Enforcement (ICE) for deportation.
The “Warning to Alien Ordered Removed or Deported” which follows the order to defendant’s wife states that defendant is “deportable under section 241 of the Act and ordered deported from the United States by an immigration judge in proceedings that commenced before April 1, 1997 under section 242 of the Act.”
On October 28, 2009, defendant, through different counsel, filed a motion to vacate his plea of guilty (sic) pursuant to section 1016.5 on the ground that the court failed to advise him of the immigration consequences of his pleas, as demonstrated by the minute order. In a supporting declaration, defendant avers that on April 28, 1993, when he “pled no contest to all of the counts charged against [him], [¶]... [¶] I did not have an interpreter at the change of plea hearing, and I didn’t speak English fluently at the time. My memory of that day has faded, but I remember some of what happened, and one thing I definitely do not remember is being given any warnings by anyone about the immigration consequences of my guilty plea. [¶] If I had known that my plea of no contest would render me deportable and never able to reenter the United States or become a United States citizen, I never would have agreed to plead guilty.”
Defendant’s wife also avers: “I was present at the Superior Court in Santa Clara County on April 28, 1993 when my husband Jose Medina pled no contest.... [¶] I have a clear memory of what happened on that day and I am sure that no one warned my husband that there would be immigration consequences as a result of his pleading no contest. His lawyer never discussed immigration consequences when he recommended that Jose plead no contest, and no consequences were mentioned by the judge the day Jose entered his plea. [¶] We have been trying for years to get Jose’s convictions vacated because he was never warned about the fact that he would get deported, that he would never be able to come back to the United States, and that he could never naturalize and become a United States citizen, just because he plead no contest to those charges. If Jose had known, he would never had [sic] agreed to plead guilty, because the consequences of his plea will result in our family being torn apart.”
The prosecutor filed a written opposition to defendant’s motion, in support of which he submitted declarations from Judge John G. Garibaldi, who took defendant’s pleas in 1993, and former deputy district attorney Ramona Budrys, who was present during defendant’s change of plea hearing and filled out a “Felony Plea Voir Dire Checklist.” Judge Garibaldi averred that he had no specific memory of defendant’s case, but he did recognize the court form (minute order) and believed he was the judge who presided over defendant’s change of plea on April 28, 1993. At that time, he was assigned felony narcotics case reviews and had occasion to preside over many changes of plea in felony narcotics prosecutions. “It was my practice to ask the same questions and give the same admonishments for every criminal case, adding questions depending on the nature of the case and the nature of the defendant but never omitting a question or admonishment. At that time, I understood the statutory requirement and the legal importance of giving the defendants this advisement. [¶] It was my habit and custom to advise every defendant in every criminal case of their immigration consequences. [¶] I make the above statement with the understanding that the box on the Minute Sheet was left unchecked by the court clerk.”
Ramona Budrys averred that one of her responsibilities as a deputy district attorney was to represent the District Attorney during a defendant’s felony change of plea from not guilty to guilty or no contest. She had reviewed the Felony Plea Voir Dire Checklist for defendant’s case, and the minute order for that case, and recognized her handwriting on the checklist as the deputy district attorney who was present during defendant’s change of plea on April 28, 1993. “By April of 1993 I had taken many change-of-pleas before Judge Garibaldi and other courts. I was aware of the advisements to the defendant that were necessary for a legally sufficient conviction by plea. To ensure that the defendant was asked the right questions and understood all of his rights and the consequences of his plea, I always used the Felony Plea Voir Dire Checklist to keep track of what the defendant was asked and advised by the Court. As each question and advisement was given, I would routinely check that item, indicating the court had covered that particular subject. [¶] I did not check items on the Felony Plea Voir Dire Checklist prior to a particular question being asked or a particular advisement being made and acknowledged by the defendant. In addition I did not check subjects, unless I heard the question asked and answered or I asked the question myself. It was my habit and custom to only check the subject matter that was actually articulated in open court. [¶] If a Judge neglected to advise a defendant of a right or a consequence, I would habitually remind the court to make the appropriate advisal or inquiry. Occasionally I would personally make the advisal or inquiry at the invitation by the Court. [¶] While I have no specific memory of the case at issue, I know that I checked the areas indicating that the advisement, regarding immigration consequences were given in court and that the defendant’s attorney acknowledged explaining those consequences to his client. Seeing my marks informs me that Mr. Medina was advised of the immigration consequences of his felony change of plea by both his attorney and either by the Judge or myself.” Under the heading “Consequences of Plea, ” the Felony Plea Voir Dire Checklist signed by “DA RBudrys” on April 28, 1993, shows an “x” beside the typed notation “Deportation, Exclusion, Denial Naturaliz’n if not U.S. Citizen, ” and another “x” beside the typed notation “Ask def atty if has fully explained conseq if not U.S. Cit.” The line next to the word “Reporter” at the bottom of the page is not filled in.
According to the memorandum filed below by defendant, a violation of Health and Safety Code section 11352 constitutes an aggravated felony under federal immigration law which renders him deportable, inadmissible, and ineligible for asylum, withholding of deportation, voluntary departure, suspension of deportation, and naturalization.
A hearing on defendant’s motion was held on February 9, 2010, at which both counsel argued their positions on the merits. Defendant’s attorney also acknowledged that the People had “raise[d] the issue of diligence” and argued that defendant had been diligent, and the People had not been prejudiced by the delay, given that they had been aware of the unchecked box on the minute order since 1995. Defendant was not present, having been deported. At the conclusion of the hearing, the court took the matter under submission.
On February 22, 2010, the court denied defendant’s motion in a written order, concluding: “[T]he Court finds that the declaration of Judge Garibaldi and former Deputy District Attorney Ramona Budrys, and the attached Felony Plea Voir Dire Checklist, constitute proof by a preponderance of the evidence that Defendant was in fact admonished at the time of his plea about the immigration consequences of that plea.” The court did not address the issue of diligence.
Defendant filed a timely notice of appeal and requested issuance of a certificate of probable cause, which request was denied.
DISCUSSION
Section 1016.5 allows a defendant to move to vacate a conviction by plea of guilty or no contest if the record shows that he was not advised of the immigration consequences of his or her pleas. Defendant argues that the “habit and custom” declarations by Judge Garibaldi and former Deputy District Attorney Budrys, and the Felony Plea Voir Dire Checklist, cannot rebut the statutory presumption that the advisements were not given, created by the judicial record in this case, which is presumed to be correct, that is, the unchecked box on the minute order. (But see People v. Dubon (2001) 90 Cal.App.4th 944 (Dubon) [habit and custom declaration by trial judge rebutted statutory presumption created by minute order].) He also argues that he was “prejudiced by the court’s failure to warn him [of the immigration consequences of his plea] because, had he been warned, he would not have elected to plead guilty.”
Section 1016.5 provides in relevant part: “(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.
However, the Attorney General raises five procedural bars to our review of defendant’s appeal on its merits. We reject the arguments that the denial of a statutory motion to vacate under section 1016.5 cannot be appealed without a certificate of probable cause; that the appeal is barred by the rules against successive and piecemeal litigation; that the appeal is barred by law of the case; and that the appeal is moot. We agree that defendant has not demonstrated reasonable diligence for the 16-year delay in bringing the motion. Therefore, we will affirm the trial court’s order denying the motion.
Appealability
The Attorney General argues that because a statutory motion to vacate the judgment pursuant to section 1016.5 challenges the validity of a guilty or no contest plea, section 1237.5 requires that defendant obtain a certificate of probable cause to appeal its denial. He cites no authority for that proposition. He made this same argument with respect to a petition for writ of error coram nobis in defendant’s last appeal. We rejected the argument there, and we reject it here, for similar reasons.
It has been often observed that for better or for worse, the terms writ of error coram nobis and motion to vacate “are often used interchangeably and the two procedures are similar in scope and effect.” (People v. Gallardo (2000) 77 Cal.App.4th 971, 982; see also People v. Totari (2003) 111 Cal.App.4th 1202, 1206 (Totari II).) While it is certainly true that the two procedures are not identical in every respect (People v. Carty (2003) 110 Cal.App.4th 1518, 1526), at least for the purposes of appealability, “[a] motion to vacate the judgment is the equivalent of a petition for a writ of error coram nobis. [Citation.] As such, it is an appealable order.” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 172.) Like an order denying a petition for writ of error coram nobis, an order denying a motion to vacate under section 1016.5 is appealable under section 1237.5, subdivision (b) as “ ‘an order made after judgment, affecting the substantial rights of the party.’ ” (Totari, supra, 28 Cal.4th at p. 887.) As the Attorney General acknowledges, Totari held that section 1016.5 represents a legislative determination that a noncitizen has a substantial right to complete advisements and to a remedy by a statutory postjudgment motion to vacate, such that an appeal lies from a denial of the motion. (Totari, at pp. 886-887.) In this respect, an appeal from a denial of a statutory motion to vacate under section 1016.5 is not unlike an appeal after a plea of guilty or no contest from a motion to suppress evidence pursuant to section 1538.5. In both cases, a successful appeal has the effect of causing the withdrawal of the plea, but no certificate of probable cause is required, because of the legislative determination that the denial of the motion involves substantial rights.
It is true that, in Totari, the defendant secured a certificate of probable cause. While our Supreme Court noted that fact in its statement of the case, its opinion did not hold that a certificate was required before an appeal from the statutory motion would be operable, even though the sole issue before the court was whether the denial of a statutory motion pursuant to section 1016.5 is an appealable order. Other courts have permitted the appeal to proceed without a certificate of probable cause. (See People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1243; People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312, disapproved on another ground in People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) Accordingly, we conclude that defendant did not need to obtain a certificate of probable cause to appeal from the denial of his statutory motion to vacate in order to appeal.
Successive Proceeding/Piecemeal Litigation
Relying on People v. Kim (2009) 45 Cal.4th 1078 (Kim), the Attorney General argues that defendant’s statutory motion to vacate pursuant section 1016.5 is barred because he first pursued his claim of immigration advisement error in a writ of error coram nobis. We disagree.
In 2003, the defendant in Kim filed a nonstatutory motion to vacate his three-year sentence, but not the convictions, in his 1997 case, and was successful. (Kim, supra, 45 Cal.4th at p. 1087.) Then, in 2005, he filed a writ of error coram nobis—that is, a second nonstatutory motion to vacate—to challenge the convictions in the same case, based on the same grounds as his earlier nonstatutory motion, and was again successful. (Id., at pp. 1089-1090.) The People appealed. The Supreme Court held that defendant Kim was not entitled to relief because several procedural bars applied, including (1) the rule against successive litigation of the same claim and (2) the rule against piecemeal litigation. (Id., at pp. 1099, 1100-1101.)
With respect to the rule against successive litigation, the court held that Kim “failed to avail himself of other remedies when he had the chance.... In the instant case, defendant could have petitioned for a writ of habeas corpus while he was still in actual or constructive state custody, that is, in prison or on parole.” (Kim, supra, 45 Cal.4th at p. 1099.) With respect to piecemeal litigation, the court held that “a litigant seeking extraordinary relief from a final judgment is not entitled to bring his legal claims to court seriatim.... [O]ne seeking relief via coram nobis may not attack a final judgment in piecemeal fashion, in proceedings filed seriatim, in the hopes of finally convincing a court to issue the writ. Although defendant contends he has not violated this rule, his 2005 motion in the trial court to vacate his guilty plea (and hence his conviction) for the Costco crimes frankly concedes the motion was based ‘on the same grounds that all parties acknowledged in 2003’ in support of his successful motion for resentencing in the same case. If defendant knew of these grounds in 2003, he was not entitled to reraise them in 2005.” (Id., at p. 1101.)
Kim is distinguishable from this case. Defendant did not file two nonstatutory motions to vacate on the same grounds. Defendant’s petition for writ of error coram nobis alleged that his trial counsel had rendered ineffective assistance of counsel by failing to inform him of the immigration consequences of his pleas. Defendant’s statutory motion to vacate under section 1016.5 alleged that the trial court failed to inform him of the immigration consequences of his pleas. As our Supreme Court observed in Totari, “[b]ecause the grounds supporting a nonstatutory motion are not specifically defined, the ‘no second appeal’ rule [citation] serves as a procedural device to discourage defendants from raising any postjudgment claim that could have been raised before imposition of judgment or by way of direct appeal from the original judgment. [Citation.] On the other hand, the Legislature has established specific requirements for a motion to vacate under section 1016.5. Once the Legislature has determined that a noncitizen defendant has a substantial right to be given complete advisements and affords defendant a means to obtain relief by way of a statutory postjudgment motion to vacate, the ‘no second appeal’ rule loses its urgency and a denial order qualifies as an ‘order made after judgment, affecting the substantial rights of the party.’ (§ 1237, subd. (b)).” (Totari, supra, 28 Cal.4th at pp. 886-887.) In our view, these two procedural bars raised by the Attorney General do not apply here.
Law of the Case
The Attorney General asserts that the doctrine of law of the case bars defendant’s appeal from the denial of his statutory motion to vacate. We disagree. “ ‘The law of the case doctrine states that when, in deciding an appeal, an appellate court “states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal..., and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 870.) In defendant’s prior appeal from the denial of his writ of error coram nobis, we held that defendant was not entitled to a hearing to establish the elements of a section 1016.5 violation because, in his writ petition below, he had utterly failed to allege any of the elements of such a violation. Our opinion did not purport to decide what the trial court could or could not do if defendant ever properly pleaded the elements of a section 1016.5 violation in a statutory motion for relief. Defendant has now rectified the pleading defect and filed a proper statutory motion under section 1016.5. Defendant’s appeal from its denial is not barred by the doctrine of law of the case.
Mootness
Next, the Attorney General argues that “defendant’s deportation, the expiration of the conviction, and the absence of a current sentence affected by vacatur has render[ed] the appeal moot.” We disagree. There is nothing “expired” about defendant’s convictions for violation of Health and Safety Code section 11351. Defendant’s deportation is based on the fact of that conviction, which federal law considers an “aggravated felony.” (8 U.S.C. § 1101, subd. (a)(43)(B) (2010); former Immigration & Naturalization Act (INA) § 241, subds. (a)(2)(b)(i) & (a)(2)(a)(iii) (1994); 8 U.S.C. § 1227, subds. (a)(2)(A)(iii) & (a)(2)(B)(i) (2000); former 8 U.S.C. § 1251, subds. (a)(2)(A)(iii) & (a)(2)(B)(i) (1994).) If it were vacated, he could be entitled to a new deportation hearing. (Weidersperg v. I.N.S. (9th Cir. 1990) 896 F.2d 1179, 1182.) His appeal is not moot.
Reasonable Diligence
Finally, the Attorney General argues that defendant has not demonstrated reasonable diligence in waiting 16 years to bring his motion to vacate under section 1016.5. In Totari II, this court held that “the well established rules requiring a defendant to make a showing of reasonable diligence to succeed on a motion to vacate or a petition for a writ of coram nobis are applicable here” and defendant bears the burden of proving his reasonable diligence. (Totari II, supra, 111 Cal.App.4th at p. 1208.)
On appeal, defendant does not dispute that he needs to show diligence, but argues that it would be unfair to find that he did not do so when he “hired an attorney to vacate his convictions almost immediately after the Immigration Judge ordered him removed as a consequence of those convictions, and while the Immigration Judge’s decision was still on appeal.” Although he now concedes that the procedure his attorney chose in 2005 to challenge the plea – a petition for writ of error coram nobis – was inappropriate, and unsuccessful, he argues that he “should not be prejudiced by his prior counsel’s legal errors.”
The record developed by defendant below shows that he knew, in 1994, that his conviction for violation of Health and Safety Code section 11351 rendered him deportable. Yet, he waited until 2005 – after learning that the transcripts in his case were unavailable – to challenge his convictions in state court. Even then, despite the unchecked minute order, defendant did not claim in his coram nobis petition that the trial court failed to advise him of the immigration consequences of his plea. Instead, he actually admitted in the memorandum of points and authorities that the district attorney had given him the advisement, although he claimed that he did not understand it. He did not assert that the trial court had committed immigration advisement error until two years after this court pointed out the fatal flaws in his coram nobis pleadings. Defendant does not explain or justify the delay from 1994 until 2009 in making his claim of trial court error under section 1016.5, except to say it was caused by prior counsel’s legal errors. On this record, it is just as likely that the cause was prior counsel’s tactical calculation. Defendant has not carried his burden of demonstrating reasonable diligence in asserting his statutory claim of error.
However, even if we were we to overlook this procedural bar to relief, we would conclude that the declarations by Judge Garibaldi and Deputy District Attorney Budrys rebutted the presumption raised by the minute order that he had not been properly advised. As the court explained in Dubon, “[S]ection 1016.5 establishes a rebuttable presumption affecting the burden of proof, rather than the burden of producing evidence.... [¶]... The language of... section 1016.5, subdivision (b), does not specify that a burden of proof higher than the preponderance of the evidence is required. Thus, the presumption places upon the People the burden of proving by a preponderance of the evidence the nonexistence of the presumed fact, i.e., that the required advisements were given.” (Dubon, supra, 90 Cal.App.4th at pp. 953-954.)
Furthermore, evidence of habit or custom “is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” (Evid. Code, § 1105.) In Dubon, the trial judge’s testimony about his habit and custom in giving immigration advisements was held sufficient, along with other evidence, to overcome the presumption that defendant had not been properly advised. (Dubon, supra, 90 Cal.App.4th at pp. 956-957.) Here, the trial court did not err in concluding that the “habit and custom” declarations by the trial judge and the prosecutor, coupled with the prosecutor’s checklist, rebutted the statutory presumption of non-advisement created by the minute order, and proved by a preponderance of the evidence that defendant had, in fact, been advised of the immigration consequences of his plea in 1993. No error appears.
CONCLUSION
No certificate of probable cause is necessary to perfect an appeal from the denial of a motion to vacate pursuant to section 1016.5. The appeal is not barred by the rules against successive and piecemeal litigation. The appeal is not barred by the doctrine of law of the case. The appeal is not moot. Defendant has not demonstrated reasonable diligence for the 16-year delay in bringing the motion. Even if we overlook that procedural bar, the trial court did not err in finding that the statutory presumption of non-advisement was rebutted by the habit and custom declarations of the trial judge and prosecutor, and the prosecutor’s checklist.
DISPOSITION
The trial court’s order denying defendant’s statutory motion to vacate is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
“(b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If, after January 1, 1978, 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 or nolo contendere, 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.”