Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 05-920290-4
SIMONS, J.
In 1992, Jose Alberto Montano (appellant) pled guilty to two counts of sale or transportation of cocaine. He appeals from the denial of his motion to vacate that conviction, contending he received an inadequate advisement regarding the immigration consequences of his plea. We affirm.
BACKGROUND
In May 1992, appellant pled guilty to two counts of sale or transportation of a narcotic (cocaine) in violation of Health and Safety Code section 11352, subdivision (a). The court placed him on probation. In June 2007, appellant filed a motion to vacate his conviction, which he later styled, in the alternative, a petition for writ of error coram nobis. The trial court denied the motion.
DISCUSSION
Subdivision (a) of Penal Code section 1016.5 provides: “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.” A defendant is “presumed not to have received” the advisement unless the record shows to the contrary. (§ 1016.5, subd. (b); see also People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 191 (Zamudio).)
All undesignated section references are to the Penal Code.
The statute specifies a remedy for a trial court’s failure to administer the advisement: “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.” (§ 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.” (People v. Totari (2002) 28 Cal.4th 876, 884, citing Zamudio, supra, 23 Cal.4th at pp. 192, 199-200.) The trial court denied appellant’s motion to vacate for failure to show the first element, that he did not receive the section 1016.5 advisement. We review the trial court’s denial of the motion for abuse of discretion. (Zamudio, at p. 192.)
Appellant averred in his declaration accompanying the motion to vacate, “I do not recall the Judge or my attorney ever explaining to me, when I made my plea, that my guilty plea would mean that I would have no opportunity to stay in the United States, that I may be deported or that my plea would foreclose any future immigration applications that I may file.” He further averred that he was not “aware, at the time of making [the guilty plea], that the plea would mean I would not be eligible to stay in the United States without any type of relief. I entered the guilty plea without an understanding of what would happen to me.” In fact, the record shows that appellant was advised in 1992, when he entered his plea, that his plea could have adverse immigration consequences. According to the reporter’s transcript of the plea hearing, the prosecutor advised appellant, “If you are not a citizen of the United States as a result of your plea today you can be deported, if you left this country you can be denied reentry, or if you applied for citizenship or were applying for citizenship that can be denied as a result of your plea today; do you understand that consequence of your plea, sir?” Appellant responded, “Yes.”
On appeal, appellant does not argue that the 1992 advisement failed to comply with section 1016.5. Instead, appellant contends that the 1992 advisement was inadequate because it failed to inform him that his conviction would render him absolutely ineligible for relief from deportation under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214). However, “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. [Citation.]” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174, fn. 4.) In support of his argument, appellant cites only Zamudio, supra, 23 Cal.4th at p. 208, but Zamudio does not require courts to provide any advisement beyond that required by section 1016.5. The trial court properly denied appellant’s motion.
Of course, it is difficult to understand how the trial court could have provided such an advisement in 1992.
Because we conclude the trial court properly denied appellant’s motion on the ground he received an adequate advisement at the time of his 1992 plea, we need not address respondent’s additional arguments regarding, timeliness, prejudice, and the likelihood that appellant faces adverse immigration consequences due to his plea.
Appellant’s section 1016.5 motion was styled, in the alternative, a petition for writ of error coram nobis. The writ is a common law remedy that provides relief where the petitioner was deprived of a fair trial through fraud, coercion, or excusable mistake. (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The purpose of the writ is to make relief available “ ‘where no other remedy exists.’ ” (Ibid.) Carty affirmed denial of a petition for writ of error coram nobis claiming inadequate advisement of immigration consequences because the statutory motion under section 1016.5 was an available remedy. (Carty, at p. 1529.) Similarly, the section 1016.5 motion was the appropriate avenue for appellant to seek relief in this case. Appellant presents no argument or authority that he is entitled to separate relief under a petition for writ of error coram nobis.
Appellant also contends the failure to advise him the conviction would make his deportation mandatory means his plea was not voluntary and intelligent, as required for validity of the plea under the federal Constitution. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) To ensure the constitutional validity of pleas, trial courts are obligated to advise defendants of the “direct consequences” of pleas. (People v. Lytle (1992) 10 Cal.App.4th 1, 4; see also Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) However, trial courts are not obligated to advise defendants of “secondary, indirect or collateral consequences” for pleas to be valid. (People v. Moore (1998) 69 Cal.App.4th 626, 630; see also People v. Crosby (1992) 3 Cal.App.4th 1352, 1354-1355.) As appellant acknowledges, “immigration consequences . . . are considered ‘collateral’ consequences of a criminal conviction.” (Zamudio, supra, 23 Cal.4th at p. 198; In re Resendiz (2001) 25 Cal.4th 230, 242.) Appellant cites no authority that an advisement regarding immigration consequences is necessary for a plea to be voluntary and intelligent in the constitutional sense. (See Carty, supra, 110 Cal.App.4th at pp. 1523-1524 & fn. 6 [no constitutional right to advisement regarding immigration consequences].) Appellant’s constitutional claim is without merit.
DISPOSITION
The trial court order is affirmed.
We concur: JONES, P.J., NEEDHAM, J.