Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA198272, George G. Lomeli, Judge.
Law Offices of Larry R. Glazer and Nicolette Glazer, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellant Rudy Monterroso appeals from the denial of his motion to vacate a judgment and withdraw his plea of guilty entered to one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Appellant argues that the trial court erred in denying his motion because he was not advised of the immigration consequences of his plea as required by Penal Code section 1016.5 (section 1016.5). He also claims that he did not understand the advisement because he had a limited command of English, and no Spanish language interpreter was present at the change of plea hearing. We find that the advisement substantially complied with the requirements of section 1016.5. Because the record does not show that appellant required an interpreter at the time he entered his plea, there was no abuse of discretion in the denial of his motion.
The order is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was charged by information with one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and one count of carrying a loaded firearm on his person and in a vehicle as an active participant in a criminal street gang (Pen. Code, § 12031, subds. (a)(1), (2)(C)). At a change of plea hearing appellant was advised by the trial court: “If you are not a citizen, this conviction will lead to your deportation, denial of naturalization, denial of a legal right to re-enter the United States or denial of amnesty.” The trial court then asked appellant whether he understood and gave up his constitutional rights, and appellant acknowledged that he did. He then pled guilty to the charge of possession of cocaine base for sale. Imposition of sentence was suspended, and appellant was placed on probation and sentenced to 180 days in jail. The charge of carrying a loaded firearm was dismissed.
Nine years later, appellant filed a motion to vacate the judgment and withdraw his plea pursuant to section 1016.5. Appellant, who is not a citizen of the United States, was in proceedings for removal from the United States. He was advised by his attorney that his conviction could be ruled a “deportable/excludable offense” with adverse consequences under federal immigration law. The motion was denied, and this appeal follows.
DISCUSSION
Appellant claims that the trial court’s advisement of the immigration consequences of his conviction did not meet the requirements of section 1016.5. In pertinent part that statute provides as follows:
“(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime 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) 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.”
In his motion to vacate made under this section, appellant claimed the trial court failed to advise him as required because he was not told of the potential consequence of “exclusion from admission to the United States,” and was instead advised that the conviction “will lead to... denial of a legal right to re-enter the United States or denial of amnesty.” He also claimed that he did not have the presence of an interpreter at the hearing, and therefore did not understand the advisement. The motion was denied, the court finding that appellant was adequately advised of the immigration consequences of the conviction. We review the court’s ruling for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
We first address appellant’s claim that the advisement was inadequate under section 1016.5. “[O]nly 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.” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174 (Gutierrez), disagreed with on another ground in People v. Carty (2003) 110 Cal.App.4th 1518, 1526.) In Gutierrez, the prosecutor advised the defendant that “‘[i]f 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.) The defendant in that case contended that “there are actually three components to exclusion: reentry, rescission of resident status, and ineligibility to adjust one’s status,” and argued error because he was only admonished as to re-entry. (Id. at p. 174, fn. 4.) The court disagreed, citing Zamudio, supra, 23 Cal.4th at page 207, for the proposition that because “‘[e]xclusion’ is ‘being barred from entry to the United States,’” the words used by the prosecutor were equivalent to the statutory language, and there was substantial compliance with the requirements of the statute. (Gutierrez, at p. 174.) The court noted that the defendant failed to cite authority for the proposition that there are three components to exclusion under federal immigration law, but found that “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.” (Ibid., fn. 4.)
Unlike the defendant in Gutierrez, appellant details the ways in which “exclusion from admission” differs from the term “denial of a right to re-entry” under federal law. But, his argument is identical to that of the Gutierrez defendant: “Section 1016.5 of the Penal Code mandates that an alien facing criminal proceedings is advised of the possibility of exclusion from admission, thereby covering the entire range of circumstances in which the issue of inadmissibility pursuant to section 212(a)(2)(A) [of the Immigration and Nationality Act] arises.” We disagree. Even if the advisement had used the words “exclusion from admission to the United States,” it would not have communicated any meaning that “exclusion” may have under federal law. The advisement that appellant’s conviction “will lead to... denial of a legal right to re-enter the United States or denial of amnesty” was in substantial compliance with the requirements of section 1016.5. (Gutierrez, supra, 106 Cal.App.4th at pp. 174-175; Zamudio, supra, 23 Cal.4th at p. 207.)
We note that it is difficult to understand how the use of the phrase “exclusion from admission” would have resulted in appellant’s assertion of his right to proceed to trial. (See People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1245 [prejudice results from improper advisement when it is reasonably probable defendant would not have pleaded guilty if properly advised].) Appellant claims he would not have pled guilty if he knew that “exclusion from admission” was a consequence of his conviction. But, at the plea hearing, he had been specifically advised that deportation “will” be a consequence of his guilty plea. Given that admonition, it is not reasonably probable that appellant would have changed his plea if the exact language of the advisement had been used.
Appellant claims that he did not understand the advisement because he “has a limited command of English and did not have a Spanish interpreter present.” (See People v. Carty, supra, 110 Cal.App.4th at pp. 1525-1526 [“[T]he term ‘advisement’ in subdivision (a) [of section 1016.5] reasonably must be understood to mean not merely that the trial court recites the specified subdivision (a) language, but that the defendant understands that recitation....”].) The record shows that a Spanish language interpreter was present at appellant’s arraignment, but not at the change in plea hearing or any subsequent hearings. But the record does not show that appellant required an interpreter. Appellant’s declaration supporting his section 1016.5 motion, written in English and lacking an interpreter’s certificate, does not state that he has or had any difficulty understanding English. The transcript of the change in plea hearing does not show that appellant had any difficulty in understanding the proceedings: although his answers were terse, appellant responded to the trial court’s questions in English. There is no declaration in the record from the counsel representing appellant at the plea hearing as to appellant’s ability to understand the proceedings. Indeed, the probation report filed when the charges were brought states: “The defendant states that he completed nine years of schooling and last attended the Belmont High School evening adult classes.”
Appellant also claims that the trial court erred by not inquiring as to whether he understood the advisement. The statute does not require that the trial court make any such inquiry.
The court was entitled to not credit appellant’s claim that he did not understand the advisement because an interpreter was not present at the change of plea hearing, and we find no abuse of discretion in its denial of his section 1016.5 motion.
DISPOSITION
The order is affirmed.
We concur: WILLHITE, J. MANELLA, J.