Opinion
B163595.
10-29-2003
Rene A. Ramos for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Margaret E. Maxwell, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Vitalino Ramirez appeals an order denying his motion to vacate a 1985 judgment based on inadequate advisement of the immigration consequences of a plea of guilty. (Pen. Code, § 1016.5.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1985, search warrants were served at seven locations including Ramirezs residence. Some of these locations were fortified houses at which the police found guns including an AR-15 with a silencer and stolen property. Of all the locations searched, the most cash, $74,000, and the most cocaine, approximately one kilogram, was found at Ramirezs home. At one location, a resident of the home being searched drew a weapon and was killed. Ramirez was present in the country illegally at the time and five of the defendants involved in the case used check-cashing businesses to launder money. Ramirez was connected to the ring by surveillance and telephone records.
Ramirez was charged with possession for sale of cocaine and initially pleaded not guilty. (Health & Saf. Code, § 11351.) Pursuant to a plea bargain under which Ramirez would be sentenced to one year in the county jail and three years probation, Ramirez changed his plea to guilty. Prior to the change of plea, the prosecutor advised Ramirez with respect to the immigration consequences of conviction as follows: "This may or may not apply to you. If you are not a legal residence of the United States, you could be subject to deportation or your ability to enter or reenter the United States could be affected."
On March 12, 2002, Ramirez filed a motion to vacate the 1985 judgment on the ground the prosecutors advisement failed to comply with Penal Code section 1016.5, which requires a defendant to be advised: "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 the motion, Ramirez argued the advisement he received in 1985 was defective because it failed to warn his plea could result in the denial of naturalization or exclusion from the United States and used the phrase "legal resident" rather than "not a citizen." Ramirez asserted he faces exclusion from admission because he is not able to adjust his status through his wife, who is an American citizen.
At a hearing on the motion to vacate, 48-year-old Ramirez testified he was born in Cali, Columbia, but has lived in the United States for the past 21 years. He is married to Janeth Ramirez who also was born in Columbia but now is an American citizen. They have two daughters, both of whom are American citizens, ages 18 and 14 years. Ramirez took classes in English and obtained an associate in science degree at Trade Tech. He has worked in the air conditioning and refrigeration field for approximately 10 years and Ramirez and his wife purchased a home in 1999.
In 1985, Ramirez was not aware his guilty plea could prevent him from becoming a naturalized citizen or a permanent resident. Had Ramirez known, he would have gone to trial. Ramirez claimed he wanted to be sure that he could one day become a citizen and thus did not leave the country when his mother died because he was afraid he might not be able to reenter.
On cross-examination, Ramirez admitted he was illegally in this country at the time of the plea and that he faced four years in state prison if convicted of possession for sale of cocaine. Ramirez claimed he asked his attorney whether he could be deported because Ramirez did not understand what that meant but defense counsel explained he did not know enough about immigration to advise Ramirez.
The trial court noted Ramirez spontaneously interjected at the time of the guilty plea in 1985, that he waived his right to call witnesses "as long as they accept the plan of probation and the three years." Ramirez protested his attorney told him to say that. The trial court indicated the statement, nonetheless, left the impression "[Ramirez] accepted the . . . agreement . . . in order to get probation, as opposed to a prison sentence, and you may have felt that, because of the extremely large amount of cocaine and the large amount of cash, that this was indeed a good resolution of the matter, and, whatever the immigration consequences were, you werent really that concerned about [them] . . . because twenty years ago, the immigration and naturalization service was not taking the position its now taking." Ramirez indicated "[i]t wasnt exactly for that reason."
Janeth Ramirez testified Ramirez was a good husband and provider. Although Ramirez discussed the drug case with her, she does not recall any talk about his immigration status.
The trial court ruled the advisement was defective but concluded Ramirez had not established prejudice. The trial court expressed sympathy for Ramirez and his family but found Ramirez had been offered "an extremely good deal for a serious matter, and he went ahead and took it." The trial court noted Ramirez even referred to the probationary term during the advisements leading to the guilty plea. The trial court interpreted this conduct to mean Ramirez would have agreed to any immigration consequence as long as he got three years probation and avoided state prison. The trial court conceded Ramirez had led an exemplary life after the crime, had a lovely family and was living the American dream but he had failed to demonstrate a basis upon which to vacate the judgment.
CONTENTION
Ramirez contends the denial of the motion was error.
DISCUSSION
As noted above, Penal Code section 1016.5, subdivision (a), requires a trial court to advise the defendant, prior to accepting a plea of guilty or nolo contendere as follows: "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." (Pen. Code, § 1016.5, subd. (a).)
Subdivision (b) of section 1016.5 provides, in pertinent part: "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 defendants 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 [section 1016.5]; (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. Totari (2002) 28 Cal.4th 876, 884, citing People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200, and People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) With respect to the issue of prejudice, the defendant "must show that it is reasonably probable he or she would not have pleaded guilty or nolo contendere if properly advised." (People v. Totari, supra, at p. 884, citing People v. Superior Court (Zamudio), supra, at pp. 209-210.) A trial courts ruling on a motion to vacate a plea is not disturbed on appeal absent an abuse of discretion. (People v. Superior Court (Zamudio), supra, at p. 192.)
Ramirez claims he has established all three of the required elements. The prosecutors advisement at the time of the plea was faulty because it failed to mention Ramirez could be denied citizenship. Also, denial of reentry or entry and naturalization are not the same. Thus, the prosecutors advisement did not substantially comply with section 1016.5. (Cf. People v. Superior Court (Zamudio), supra, 23 Cal.4th at pp. 207-208.) Ramirez also demonstrated his inability to adjust his immigration status through his wife and testified he would not have gone to trial had he been advised properly.
We are not persuaded by Ramirezs argument. Initially, notwithstanding the trial courts finding the advisement was defective, it could be argued that an advisement the defendant might be deported necessarily includes the possibility the defendant might be denied citizenship. (See People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174.) However, assuming for the sake of discussion the prosecutors advisement at the time of the plea was defective and that Ramirez now faces one of the immigration consequences omitted from the advisement, Ramirezs claim nonetheless fails because Ramirez failed to establish prejudice to the satisfaction of the trial court. That is, Ramirez failed to demonstrate a reasonable probability that in 1985 he would not have pleaded guilty or nolo contendere if properly advised. (Totari, supra, 28 Cal.4th at p. 878, citing People v. Superior Court (Zamudio), supra, 23 Cal.4th at pp. 209-210.)
The only available evidence on the issue of prejudice, apart from Ramirezs bare assertion he would not have accepted the plea bargain had he properly been advised, was Ramirezs statement at the time of the guilty plea indicating concern only that the trial court would "accept the plan of probation and the three years." (See In re Alvernaz (1992) 2 Cal.4th 924, 945 [petitioners uncorroborated statement is not sufficient to support review].) Also, Ramirez does not suggest he had any valid defense to the charge or that he might have avoided conviction had he gone to trial.
In light of these circumstances, no abuse of discretion appears in the trial courts denial of the motion to vacate the judgment entered following Ramirezs 1985 plea of guilty to possession for sale of cocaine.
DISPOSITION
The order denying the motion to vacate the judgment is affirmed.
We concur: CROSKEY, J. and KITCHING, J. --------------- Notes: Subsequent unspecified statutory references are to the Penal Code.