Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FWV14433 & RCR9373, Douglas M. Elwell, Judge. Affirmed.
Karlin & Karlin and Marc A. Karlin for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
On February 1, 1984, the San Bernardino County District Attorney filed an information charging defendant and appellant Martin Ramirez with unlawful driving or taking of a vehicle under Vehicle Code section 10851. On March 2, 1984, defendant pled guilty to the charged offense. On March 28, 1984, the trial court sentenced defendant to two years in state prison, suspended execution of the sentence, and placed him on probation for a term of three years.
On March 21, 2008, twenty-four years after pleading guilty, defendant filed a motion to vacate the conviction. On May 9, 2008, the trial court denied defendant’s motion.
On appeal, defendant contends that the trial court erred in denying his motion to vacate his guilty plea. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
The facts of the underlying case are neither part of the record nor relevant to the issues on appeal.
On March 2, 1984, defendant pled guilty to unlawful driving or taking of a vehicle under Vehicle Code section 10851. Defendant’s plea agreement stated that, if defendant was not a citizen of the United States, he may be deported. The agreement read: “I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty nolo contendere (no contest).” Defendant initialed the box next to this statement. A court translator also signed the plea form, indicating that the text of the agreement was translated to defendant on March 2, 1984.
On March 28, 1984, defendant appeared for sentencing. Defendant was assisted by a Spanish interpreter. The court imposed a two-year prison term, suspended execution of the sentence, and placed defendant on three years’ probation.
Twenty-four years after pleading guilty, on March 21, 2008, defendant filed a motion to vacate the 1984 conviction. Defendant argued that the trial court failed to properly advise him of the immigration consequences of his plea, and that his plea was neither knowing nor voluntary. Additionally, defendant’s motion included a petition for a writ of error coram nobis. In his declaration in support of his motion, defendant claimed that neither his attorney nor the trial court advised him that his guilty plea would foreclose his ability to remain in the United States. Defendant claimed that at the time of the plea, he was unable to understand English; therefore, he was forced to rely on the assistance of a translator.
At the hearing on May 9, 2008, the trial court found that, at the time defendant entered his plea, he had been adequately assisted by a court-certified interpreter. The court also found that defendant’s plea form included an advisal of the potential immigration consequences, next to which defendant placed his initials, indicating that he read the advisal. The court went on to deny defendant’s petition for writ of error coram nobis, holding that defendant’s alleged misunderstanding was a mistake of law and not cognizable under a petition for writ of error coram nobis.
On May 12, 2008, defendant filed a request for a certificate of probable cause. The court granted defendant’s request on May 27, 2008.
II
ANALYSIS
1. The Trial Court Properly Denied Defendant’s Motion to Vacate His Guilty Plea
Defendant claims that in 1984, the sentencing court failed to advise him that his plea agreement would unequivocally result in deportation. Therefore, defendant argues that we must vacate his conviction under Penal Code section 1016.5, subdivision (b). We disagree.
All further statutory references are to the Penal Code unless otherwise specified.
We review the trial court’s ruling denying the motion to vacate a judgment for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio); see also People v. Suon (1999) 76 Cal.App.4th 1, 4.)
Subdivision (d) of section 1016.5 provides, in pertinent part, that “[t]he Legislature finds... that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea.”
Subdivision (a) of section 1016.5 provides that “[p]rior 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.” (Italics added.)
The statute specifies a remedy for a trial court’s failure to administer the mandated advisements: “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).)
In order to obtain relief under section 1016.5, subdivision (b), a defendant must demonstrate that (1) the court taking the plea failed to advise the defendant of the immigration consequences as provided by section 1016.5; (2) as a consequence of his conviction on the offense to which he pleaded guilty, there is more than a remote possibility that defendant faces one or more of the statutorily specified immigration consequences; and (3) defendant was prejudiced by the court’s failure to provide complete advisements under subdivision (a) of section 1016.5. (People v. Totari (2002) 28 Cal.4th 876, 884; Zamudio, supra, 23 Cal.4th at pp. 199-200.)
The “critical issue under section 1016.5 is whether a defendant has been advised that his guilty plea may have immigration consequences.” (People v. Soriano (1987) 194 Cal.App.3d 1470, 1475.) The exact language used by the court is not dispositive to whether the defendant was adequately advised. (Ibid.) Moreover, section 1016.5 does not indicate a specific manner in which the court must advise the defendant. While the court is obligated to advise the defendant of the potential immigration consequences of a guilty plea, it is not obligated to do so verbally. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521.) Thus, a validly executed plea agreement containing immigration advisements is sufficient. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 175 (Gutierrez).)
In Gutierrez, supra, the defendant pled guilty to attempted carjacking. (Gutierrez, supra, 106 Cal.App.4th at p. 171.) The defendant was advised of the potential immigration consequences, both verbally and in writing, in the plea agreement form. (Ibid.) Nevertheless, the defendant moved to vacate the judgment, arguing that neither the verbal nor the written admonitions satisfied the requirements of section 1016.5. (Gutierrez,at p. 173.) The appellate court disagreed. The court held that, while the verbal admonition varied slightly from the language of section 1016.5, the sentencing court had substantially complied with the purpose of the advisement requirement. (Gutierrez,at p. 174.) The court also held that, even if the sentencing court did err in its verbal advisements, any error was cured by the written plea agreement, which advised the defendant of the possible immigration consequences, as required under section 1016.5. (Gutierrez, at p. 175.)
In this case, defendant’s written plea form includes the following statement: “I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty nolo contendere (no contest).” In addition, the plea agreement contains the signatures of defendant’s attorney and a translator. Therefore, we find that the written plea agreement shows that defendant was properly advised of his possible immigration consequences under section 1016.5.
Notwithstanding, defendant contends that he was not properly advised of his immigration consequences in 1984 because of subsequent changes in immigration law in 1996. When a defendant made a similar complaint in People v. Borja (2002) 95 Cal.App.4th 481, the court noted, “[o]bviously neither the court nor his defense counsel had a duty to divine these changes in the law. All that they could do and were expected to do was to inform [the defendant] that his guilty plea could have immigration consequences, including possible deportation, in the future.” (Id. at pp. 485-486.)
Moreover, defendant seems to be arguing that the trial court should have advised him that the 1996 Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2254(d)(2)) would make his deportation mandatory. Again, defendant is wrong. The United States Supreme Court has held that the Anti-terrorism Act is not to be applied retroactively. (INS v. St. Cyr (2001) 533 U.S. 289, 292-297.)
Based on the above, we conclude the trial court did not abuse its discretion by denying defendant’s motion to vacate the judgment of conviction based on his guilty plea.
2. The Trial Court Properly Denied Defendant’s Motion to Vacate the Conviction
Defendant refers to this motion as his “Motion to Vacate Judgment/Petition for Writ of Error Coram Nobis.” Although “the terms ‘motion to vacate’ and ‘petition for writ of error coram nobis’ are often used interchangeably and the two procedures are similar in scope and effect,” a motion to vacate does not always meet the standard for a writ of error coram nobis. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) A writ of error coram nobis asks the court to consider newly discovered evidence. A motion to vacate, however, serves as a statutory remedy for a court’s errors. (Id. at p. 982, fn. 5.) Because defendant’s argument does not rely on newly discovered evidence, the motion will be treated solely as a motion to vacate the judgment.
Defendant contends that the trial court erred in denying his motion to vacate the conviction because his 1984 guilty plea was neither knowing nor voluntary. We disagree.
A valid guilty plea requires that a defendant be advised of his constitutional rights. (Boykin v. Alabama (1969) 395 U.S. 238, 243 [for valid guilty plea, due process requires voluntary and intelligent waiver of confrontation right, right to jury trial, and privilege against compulsory self-incrimination]); In re Tahl (1969) 1 Cal.3d 122.) Whether a defendant has been advised of and waived these rights is determined by considering the totality of the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1178.)
In this case, the plea agreement signed by defendant lists the constitutional rights defendant waived by entering into the plea—including the privilege against self-incrimination, the right to trial by jury, and the right to confront witnesses. Defendant initialed the boxes next to each of the advisements.
Nevertheless, defendant contends that his plea was neither knowing nor voluntary because he was not aware of the immigration consequences. However, as discussed ante, the trial court complied with the requirements of section 1016.5, subdivision (b), and defendant was advised of the potential immigration consequences when he pled guilty in 1984.
Moreover, the change of plea form shows that the form was “translated by” an interpreter. As provided above, the form contained the following language: “I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty nolo contendere (no contest).” A defendant is presumed to have understood an advisement if given in the defendant’s language. (People v. Carty (2003) 110 Cal.App.4th 1518, 1526.) Once such an advisement is given, “the defendant can no longer claim that [he] was unaware of the immigration consequences specified in that advisement.” (Ibid.)
Furthermore, the only evidence offered in support of defendant’s contention that he did not enter into the plea knowingly and voluntarily is defendant’s self-serving declaration. As a general rule, a self-serving declaration lacks trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 611.) The trial court appears to have discredited or given little weight to defendant’s self-serving declaration. As is the case with most evidentiary rulings, determining defendant’s credibility and the evidentiary value of his self-serving declaration is within the trial court’s discretion. (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) On appeal, we will not disturb this determination unless the court abused its discretion. (People v. Greenberger (1997) 58 Cal.App.4th 298, 335.)
Based on the above, we find that defendant entered into his guilty plea knowingly and voluntarily. Therefore, the trial court properly denied defendant’s motion to vacate the conviction.
III
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., King, J.