Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. F95544614-1, Houry A. Sanderson, Judge.
Roger K. Litman, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Hill, J.
OPINION
On August 28, 1995, appellant, Juan Jose Morales, pled no contest to sexual battery (Pen. Code, § 243.4) and cultivation of marijuana (Health & Saf. Code § 11358). On July19, 2007, Morales filed a motion to vacate his conviction and judgment pursuant to section 1016.5. On August 30, 2007, the court denied the motion. On appeal, Morales contends the court abused its discretion when it denied his motion. We will affirm.
All further statutory citations are to the Penal Code unless otherwise indicated.
FACTS
Morales is a Mexican citizen who became a lawful permanent resident of the United States around 1987. On August 8, 1995, his wife filed a report with the Reedley police alleging that she had gone to Morales’s apartment to ask him for a divorce and was sexually assaulted by Morales. According to Morales’s wife, Morales touched her in a sexual manner and forced her to have intercourse with him. After she took a shower, Morales entered the bathroom with a large knife and threatened to kill himself for what he had done. Morales’s wife was able to get the knife away from Morales and leave the apartment. Officers arrested Morales at his apartment the next day and found two pots containing a total of three marijuana plants.
On August 28, 1995, Morales entered his plea before Judge Campagna as part of a plea bargain that provided for the dismissal of one additional count and a lid of three years eight months. Prior to entering his plea, Morales filled out and signed a change of plea form in which he initialed a box in front of paragraph 2 under the heading “CONSEQUENCES OF PLEA OF GUILTY OR NO CONTEST.” This paragraph stated: “If I am not a citizen my change of plea could result in my deportation, exclusion from admission to the United States, and/or denial of naturalization.”
During the change of plea proceedings, the following conversation occurred:
“THE COURT: Now Mr. Morales, let me ask, are these your initials and signature on this form?
“THE DEFENDANT: Yes.
“THE COURT: And am I correct that if you have any question about what you were pleading to, the consequences of that plea, and the rights that you would be waiving and giving up by this plea and form, that you would have discussed it completely with the attorney before you even signed it; is that correct?
“THE DEFENDANT: Yes.
“THE COURT: Did you do that in this case?
“THE DEFENDANT: Yes.
“THE COURT: Did you have enough time to do it?
“THE DEFENDANT: Yes.”
In 2003, immigration authorities at Los Angeles International Airport seized Morales’s legal resident card on his return from a visit to Mexico. During the next year, he was required to attend monthly appointments in San Francisco with various immigration inspectors. Eventually, an order for Morales’s deportation was issued.
On March 10, 2005, Morales was arrested by immigration authorities. On June 10, 2005, an immigration court judge granted him a waiver of inadmissibility. On June 6, 2006, the Board of Immigration Appeals overturned the judge’s decision.
On July 19, 2007, Morales filed a Motion to Vacate Conviction and Judgment pursuant to section 1016.5. In a supporting declaration, Morales stated that at the 1995 change of plea hearing his attorney told him he needed to put his initials on the change of plea form or he would “receive many years in jail.” He did not recall his attorney, the interpreter, or anyone else advising him that immigration consequences could result from his plea. Morales also claimed he was not guilty of the sexual battery offense he pled to because everything between him and his wife on the night in question was consensual and had he understood he was admitting wrongdoing with respect to his wife, he would not have signed the change of plea form.
At a hearing on the motion on August 23, 2007, Morales testified he did not recall signing the change of plea form. Although he initialed boxes on the form, the form was never explained to him and he initialed the boxes because he was told that if he did not, he would get “many years in jail.” Morales also claimed he only pled to the marijuana cultivation charge.
On August 30, 2007, the court denied Morales’s motion.
DISCUSSION
Section 1016.5 provides in relevant part 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.”
In People v. Ramirez (1999) 71 Cal.App.4th 519 this court stated:
“In the absence of advisements on the record, subdivision (b) of section 1016.5 presumes no advisement was given. Subdivision (b) also provides that the remedy for failing to give the advisement is to vacate the judgment which rests on the guilty plea. We note there is no language which states the advisements must be verbal, only that they must appear on the record and must be given by the court.” (People v. Ramirez, supra, 71 Cal.App.4th at p. 521.)
“Our state Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court. (In re Ibarra (1983) 34 Cal.3d 277, 285-286 ….) Particularly, in Ibarra, the court addressed constitutionally mandated advisements required under Boykin v. Alabama (1969) 395 U.S. 238 … and In re Tahl (1969) 1 Cal.3d 122 …. It also stated in Ibarra: ‘A sufficient waiver form can be a great aid to a defendant in outlining [a defendant’s] rights. The defense attorney, who is already subject to a duty to explain the constitutional rights outlined in a proper waiver form to his client prior to the client’s entering a plea, may even find it desirable to refer to such a form. Thus, a defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney.’ [Citation.]” (People v. Ramirez, supra, 71 Cal.App.4th at pp. 521-522.)
Here, Morales signed the change of plea form and initialed the paragraph that advised him of the immigration consequences of his plea. Further, in response to inquiries by the court Morales stated that if he had any questions about what he was pleading to, the consequences of his plea or the rights he was giving up, he would have asked defense counsel. Thus, even though the court did not orally advise Morales of the immigration consequences of his plea, the record contains evidence from which the court could reasonably conclude that prior to entering his plea Morales was aware of and understood its immigration consequences.
In Ramirez we also stated:
“As the Third Appellate District noted in People v. Quesada (1991) 230 Cal.App.3d 525 … the legislative purpose of section 1016.5 is to ensure a defendant is advised of the immigration consequences of his plea and given an opportunity to consider them. So long as the advisements are given, the language of the advisements appears in the record for appellate consideration of their adequacy, and the trial court satisfies itself that the defendant understood the advisements and had an opportunity to discuss the consequences with counsel, the legislative purpose of section 1016.5 is met. [Citation.] We agree with the analysis in Quesada.” (People v. Ramirez, supra, 71 Cal.App.4th at p. 522.)
In concluding that the above requirements of Quesada had been met in Ramirez we stated:
“[T]he record establishes the trial court inquired into whether appellant had reviewed the form with his attorney, whether it had been translated into Spanish and whether appellant understood the advisements discussed and the rights ultimately waived. The statute requires no more.” (People v. Ramirez, supra, 71 Cal.App.4th at p. 523.)
Morales relies on this latter quote to contend the evidence is insufficient to sustain the court’s implicit finding that he understood the immigration consequences of his plea because unlike the trial court in Ramirez,the court here did not inquire whether Morales: 1) reviewed the form with defense counsel; 2) had it translated into Spanish for him; or 3) understood the advisements. Morales is wrong. We did not intend for the inquiries cited in the latter quote to be the only way for a court to assure itself that the defendant was advised of and understood the immigration consequences of his plea when these consequences are not orally pronounced on the record. As noted in the preceding quotes, all the court need do to comply with section 1016.5 is to ensure that the requisite admonitions are given, that they appear in the record, and that the court satisfy itself that the defendant understood and discussed them with counsel. Since this occurred here, we reject Morales’s contention that the court abused its discretion when it denied his motion to vacate his 1995 convictions.
DISPOSITION
The judgment is affirmed.