Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A042320, Mark C. Kim, Judge. Reversed and remanded with directions.
Law Office of Mark A. Davis and Mark A. Davis for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Jose Antonio Mota appeals from the trial court’s order denying his motion under Penal Code section 1016.5 to set aside his 1989 negotiated guilty plea to one count of second degree robbery. We reverse and remand to the trial court with directions.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Mota is a citizen of Mexico. He came to the United States with his mother in 1974 when he was six years old. In 1987, he became a lawful permanent resident. Mota is now employed as a dockworker, and the divorced father of a seven-year-old child born in the United States. Members of his immediate family are also lawful permanent residents of this country.
On February 10, 1989, Mota was charged by information with second degree robbery (§ 211). Assisted by public defender Patrick Thomason, Mota pleaded guilty as charged pursuant to a negotiated plea agreement on March 3, 1989, and was thereafter placed on three years formal probation on condition he serve eight months in county jail and make restitution to the victim, Elena Barnett.
At the plea hearing, the prosecutor advised Mota of the immigration consequences of his guilty plea as follows: “All right. I don’t know whether or not you’re a citizen of the United States – ”
“[Mota]: Yes.
“[Prosecutor]: If you were not a citizen, your plea of guilty could cause you problems in staying in the United States. Do you understand that?
“[Mota]: Yes.”
Mota performed successfully on probation, and on November 8, 1991 Mota was allowed to withdraw his plea of guilty, substitute a plea of not guilty and have his case dismissed pursuant to section 1203.4.
Contrary to the People’s claim on appeal, because a dismissal under section 1203.4 does not eradicate the conviction for all purposes, the 1989 judgment remains subject to attack by a motion under section 1016.5. (See People v. Wiedersperg (1975) 44 Cal.App.3d 550, 554; see also People v. Totari (2002) 28 Cal.4th 876, 879-880 [§ 1016.5 motion brought following §§ 1203.3 and 1203.4 relief granted].)
On July 17, 2008, Mota filed a motion under section 1016.5 to set aside his plea on the ground he was not advised of the immigration consequences of his plea. Mota further argued he was prejudiced by the deficient advisement, in that he would not have entered a plea had the proper advisement been given; and he acted with reasonable diligence in seeking to set aside the plea.
In his declaration in support of the motion, Mota testified he contacted immigration attorney Enrique Arevalo in 2006 and learned he is “deportable in immigration court because of this conviction.” Attorney Arevelo referred Mota to attorney Mark A. Davis, who is also Mota’s counsel on appeal. Attorney Davis advised Mota a motion to set aside his plea could be heard “in the middle of June 2006.” However, Mota did not have the funds to retain attorney Davis until January 2008. According to Mota, his case was “defensible” because the purported robbery victim’s “ability to perceive and recall was impaired at the time in question.” Had Mota known of “the true consequences of entering a guilty plea,” he “would have opted to fight the case as opposed to being banished to a county [he] did not know.”
Mota’s motion did not include a declaration by attorney Arevalo.
Mota’s motion did not include a declaration by attorney Davis.
At the September 11, 2008 hearing on the motion, the trial court reviewed the reporter’s transcript and heard argument. The court denied the motion, finding the advisement given to Mota was adequate because it substantially complied with section 1016.5, subdivision (a).
The trial court encountered difficulties in obtaining a reporter’s transcript of the 1989 plea proceedings and the hearing was continued for about one month, when the People were able to locate a copy of the transcript.
DISCUSSION
A defendant's right to an advisement about immigration consequences is statutory, not constitutional. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 194 (Zamudio).) The underlying purpose of section 1016.5 is to ensure the defendant has actual knowledge of the possible adverse immigration consequences of a guilty or no contest plea and has had an opportunity to make an intelligent choice to plead guilty or no contest. (Id. at pp. 193-194; People v. Gutierrez (2003) 106 Cal.App.4th 169, 173.)
As it did in 1989, section 1016.5 provides, “(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)... 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 or nolo contendere, and enter a plea of not guilty.”
“‘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. [Citations.]’” (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244.) We review the denial of a motion to vacate under section 1016.5 for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192.)
Although section 1016.5 sets forth a specific advisement to be given to the defendant, the use of the exact language of the statute is not required. “[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, supra, 106 Cal.App.4th at p. 174.) Here, the plea hearing transcript shows Mota was not expressly advised of each of the three immigration consequences, deportation, exclusion, and denial of naturalization. The prosecutor’s admonishment, “[Y]our plea of guilty could cause you problems in staying in the United States,” given a generous reading, might be viewed as adequate to apprise Mota of the possible deportation or denial of naturalization consequences of his plea, but it could not be interpreted as advising Mota his conviction could lead to exclusion from admission to the United States. The advisement did not substantially comply with section 1016.5.
The minute order of the plea hearing shows only: “Defendant advised of possible effects of plea on any alien/citizenship/probation/parole status.” No written waiver reciting the language of section 1016.5 exists in the record on appeal.
“An alien in the United States becomes subject to exclusion only if actually deported; some deportable persons who agree to depart the United States at their own expense may have available a voluntary departure remedy not entailing exclusion from reentry. [Citation.] Moreover, some deported persons are barred from reentry only for a period of years, the length of which may vary depending on the circumstances. [Citation.]” (Zamudio, supra, 23 Cal.4th at p. 208.)
The People’s claim Mota “invited error” by making the prosecutor believe he was a United States citizen is without merit. The statute requires the advisement regardless of whether it applies to the defendant before the court and the defendant is not required to disclose his or her legal status. (§ 1016.5, subd. (d).)
In Zamudio, supra, 23 Cal.4th 183, the trial court advised the defendant about possible consequences leading to deportation or affecting naturalization but failed to advise the defendant that a conviction resulting from his plea might result in his exclusion from admission to the United States. The California Supreme Court construed section 1016.5 to require a defendant seeking relief under subdivision (b) of the statute to demonstrate that he or she was prejudiced by the court’s failure to provide complete advisements. The trial court errs “in failing to consider, not only whether it formerly had failed to advise defendant as section 1016.5 requires and whether, as a consequence of his conviction on the offense to which he pleaded nolo contendere, defendant actually faces one or more of the statutorily specified immigration consequences, but also whether defendant was prejudiced by the court’s having provided incomplete advisements.” (Id. at pp. 199-200 see also People v. Totari, supra, 28 Cal.4th at p. 884 [To prevail on a motion to vacate under section 1016.5, a defendant must also establish that there existed, at the time of the motion, more than a remote possibility the conviction would have one or more of the specified adverse immigration consequences; and that he or she was prejudiced by the deficient advisement, in that it is reasonably probable the defendant would not have pleaded guilty or nolo contendere if properly advised. ].)
Basing its decision entirely on “substantial compliance” with section 1016.5, the trial court failed to consider not only whether as a consequence of the felony plea, Mota actually faced one or more of the statutorily specified immigration consequences, but also whether Mota was prejudiced by having been provided an incomplete advisement. The cause must therefore be remanded to the trial court to consider these elements. (Zamudio, supra, 23 Cal.4th at p. 200.)
DISPOSITION
The order denying Mota’s motion to set aside his plea is reversed and the cause is remanded to the trial court for a hearing. If the trial court finds that Mota establishes he faced one or more of the statutorily specified immigration consequences and was prejudiced by having been provided an incomplete advisement, it shall grant the motion to set aside the plea, vacate the judgment, and enter a plea of not guilty. If the court finds Mota has failed to establish either of these two necessary elements, it shall reinstate the original order denying Mota’s motion to set aside his plea.
We concur: PERLUSS, P. J. JACKSON, J.