Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Thomas James Borris, Judge, Super. Ct. No. 94NF1307
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Suleiman Abd Qazza (appellant) appeals from the denial of his motion to vacate a 1994 no contest plea. We appointed counsel to represent him on appeal. Counsel filed a brief that set forth the facts and procedural history of the case. Counsel presented no argument for reversal but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel presented one possible but not arguable issue on appeal: whether the court properly advised appellant of the immigration consequences of his plea. We granted appellant 30 days to file a supplemental brief. In his responsive brief, appellant also asserts that the trial court failed to adequately advise him of the immigration consequences of his 1994 no contest plea. We have now reviewed the entire record and find no error in the trial court’s order. The order and the judgment are therefore affirmed.
I
FACTS
On January 20, 2006, appellant filed, in propria persona, a “[p]etition to revise sentence to reduce it from one year to 364 day for the purpose of immigration (one day)[.]” Appellant’s petition alleged that in 1994 he had been convicted of violating Penal Code section 245, subdivision (a)(1), assault with a deadly weapon not a firearm, as the result of a misunderstanding with his brother. The trial court granted probation with various terms and conditions, including a suspended one-year jail term. Appellant attached a notarized letter, dated May 10, 2003, from his older brother (Mahmoud Alkhatib), attesting to the fact that a May 27, 1994, quarrel between the brothers had resulted in assault charges and the prosecution of appellant. Alkhatib stated that he had written a letter to the district attorney that included his stated desire to drop all charges and wish to “build a better relationship” with his brother. He also wrote, “It is my hope that my brother will gain his release to care for his four children and wife, also for my sick mother’s sake and that she will have peace of mind and to reunite our family again.”
On February 7, 2006, the trial court denied the petition, noting that the court had twice before considered and denied appellant’s request to vacate his no contest plea. Appellant subsequently filed a “petition” in this court, “appealing [the] superior court decision,” which was denied by order. (In re Suleiman Qazza (G036734, Feb. 24, 2006.) His appeal from the trial court’s order was denied by written opinion. (People v. Sulleiman Abd Quazza [sic](G036346, May 16, 2006) [nonpub. opn.].)
On March 24, 2008, appellant filed, in propria persona, a “Petition Under P.C. 1016.5 Seeking to Vacate Defendant Plea” in the trial court. The petition alleged that “[t]he trial court erred in failing to consider whether defendant was prejudiced by incomplete advisements given under Pen. Code, 1016.5.” Appellant requested the trial court vacate his 1994 plea on this ground. On April 10, 2008, the trial court treated appellant’s petition as a motion to vacate conviction under Penal Code section 1016.5 and denied the motion, citing People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 194 (Zamudio) and People v. Totari (2002) 28 Cal.4th 876, 884 (Totari).)
On June, 23, 2008, appellant filed a motion entitled, “Motion to Vacate Conviction Pursuant to Penal Code section 1016” in the trial court. Appellant’s motion contained the following points and authorities: “In a Criminal proceeding in which defendant moved to withdraw his plea of no contest to a felony charge in a previous prosecution, on the ground that the trial Court in three earlier prosecution [sic] had failed to fully advise Defendant of the immigration Consequences of his plea (pen.code, 1016.5).” According to the statement of facts attached to the motion, appellant and his brother got into a “heated argument” on May 27, 1994. Appellant was subsequently charged with assault with a deadly weapon. On December 8, 1994, he pleaded no contest to the charges, and the court permitted him to enroll in an “alternative sentencing program,” which included probation for six years, 355 days of house arrest with electronic detention, and an order to complete 200 hours of community service. Appellant also asserted that after he reviewed the record of his plea, he noticed that the court and the prosecutor failed to advise him of the possible immigration consequences of his no contest plea. Relying on Penal Code section 1016.5 and Zamudio, appellant argued that absent a record of the court orally advising him of the immigration consequences of his plea, “the defendant is presumed not to have received it . . . .” He also asserted that when the court asked the district attorney if he wanted to advise appellant of the immigration consequences of his plea, the prosecutor responded, “I don’t care.”
The trial court treated appellant’s latest motion to vacate his 1994 plea as an appeal from its April 10, 2008, denial of his petition/motion under Penal Code section 1016.5, and this appeal followed.
II
DISCUSSION
We review the trial court’s April 10, 2008 order denying appellant’s petition/motion to vacate guilty plea, pursuant to Penal Code section 1016.5. As stated by another court, “Section 1016.5, enacted in 1977, by Statutes 1977, chapter 1088, section 1, became effective January 1, 1978. [Citation.] Subdivision (a) thereof requires that, prior to accepting a guilty or no contest plea to an offense not an infraction, a court must advise the defendant concerning specified immigration consequences. Subdivision (b), provides a remedy when a court fails to give the requisite advisements and the plea may have a specified immigration consequence(s): a defendant may move to vacate the judgment, withdraw said plea, and enter a plea of not guilty.” (People v. Carty (2003) 110 Cal.App.4th 1518, 1524-1525, fns. omitted.)
However, in Zamudio, supra, 23 Cal.4th 183, the California Supreme Court held that to prevail on a motion to vacate judgment brought pursuant to Penal Code section 1016.5, subdivision (b), the defendant must first demonstrate he or she was prejudiced by the court’s failure to provide complete advisements under subdivision (a) of section 1016.5. (Id. at pp. 199-200.) In addition, the defendant must show that there was, at the time of the motion, more than a remote possibility that a conviction would have one or more of the specified adverse immigration consequences (id. at pp. 202-203), and that he or she would not have entered a plea had there been a proper advisement. (Id. at pp. 209-210.)
Here, even if we assume the trial court failed to adequately advise appellant of the immigration consequences of his 1994 no contest plea and that he would not have entered his plea with a proper advisement, appellant utterly fails to establish that there was more than a remote possibility he would suffer one or more specific adverse immigration consequences, or that he suffered any prejudice as a result of the court’s failure to give an advisement of adverse immigration consequences. Therefore, based on the record before us, appellant has failed to establish error in the trial court’s denial of his motion to vacate plea under Penal Code section 1016.5. Consequently, the trial court’s order denying appellant’s motion to vacate plea and the resulting judgment must be affirmed.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.