Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, Super. Ct. No. VA025118, A473823, Yvonne T. Sanchez, Judge
Law Office of Laurence B. Donoghue, Laurence B. Donoghue, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Angel Martinez Reyna was convicted by plea of the transportation or sale of marijuana (Health & Saf. Code, § 11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code§ 11359). He claims that, at the time of taking his pleas, the trial court did not fully advise him of the possible immigration consequences. Appellant argues that, although the court advised him that his plea could result in his being deported, it did not inform him that he might be forever barred from obtaining lawful admission to the United States. He filed a motion to vacate his convictions so he could withdraw his guilty pleas. (Pen. Code, § 1016.5.) The trial court denied his request. We affirm.
All further statutory references are to the Penal Code.
FACTS and PROCEDURAL HISTORY
Plea Agreements
On June 25, 1987, appellant (under the alias of Jesse Castro Alvarez) entered a plea of guilty to a violation of one count of the transportation or sale of marijuana (case No. A473823). (Health & Saf. Code, § 11360, subd. (a).) The court accepted his plea, and indicated that it would not impose additional time, and would grant appellant probation with time served. The court released him on his own recognizance and directed him to return on July 30 for probation and sentencing.
On July 18, 1987, appellant was arrested after committing another offense. He failed to appear for the sentencing hearing on his first case (case No. A473823) because he was in custody. On October 7, the trial court sentenced him to three years in state prison for the new offense to run concurrent with a three-year sentence imposed for the primary offense.
Six years later, on August 17, 1993, appellant (under the alias of Juan Zepeda) pleaded no contest to possession of marijuana for sale (case No. VA025118). (Health & Saf. Code, § 11359.) Pursuant to the plea agreement, the prosecution refrained from alleging prior conviction allegations and dismissed a charge. The court sentenced appellant to two years in state prison.
Motions to Vacate
On December 13, 2007, appellant filed motions to vacate the judgments in case numbers A473823 and VA025118 and to permit him to withdraw his pleas. Attached to the motions was appellant's handwritten letter to the court stating that he had lived in the United States from 1977 to 2004 and requesting that he be "pardoned" and permitted to return.
At the hearing, appellant's counsel acknowledged that appellant had been advised of the "possible consequences" of deportation at the time he entered both pleas. However, he was not informed that the convictions made him an aggravated felon for immigration purposes, meaning he could not only be deported, but might never again be admitted and was denied from being naturalized as a citizen. He contended that, if appellant was allowed to withdraw his plea and vacate his conviction, he "will have a realistic chance of reentering the United States." Counsel argued that appellant has not had any convictions since 1993, and his mother and siblings are United States citizens or lawful residents. Neither appellant nor his counsel indicated whether appellant voluntarily departed or was deported and, if so, the date and circumstances of his departure. The court denied the motions.
"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.]" (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 208.)
DISCUSSION
Appellant contends that the trial court erred by denying his motions to vacate his convictions under section 1016.5 and allowing him to withdraw his guilty pleas. He claims that he was advised he could be deported, but was not informed that he might suffer the additional consequence of being forever barred from reentering the United States.
The denial of a motion to vacate for a violation of Penal Code section 1016.5 constitutes an appealable order. (People v. Totari (2002) 28 Cal.4th 876, 887.) We review such an order for an abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) Section 1016.5, subdivision (a) provides: "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."
The statute provides a remedy if the trial court fails to give the requisite 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. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement." (§ 1016.5, subd. (b.) The advisements need not be given in the precise language of the statute. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Gutierrez (2003) 106 Cal.App.4th 169, 174.)
To prevail on a motion to vacate under section 1016.5, a defendant must show that (1) he 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 was prejudiced by the nonadvisement. (People v. Superior Court (Zamudio), supra, 23 Cal.4th at pp. 192, 199-200.) To establish prejudice, the defendant must show that it was reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. (Id. at p. 210.)
In 1987, appellant appeared with a co-defendant to enter his plea. (Case No. A473823.) The trial court stated: "if either of you are not a citizen of the United States, by pleading guilty to this charge, it could have the result that you would be deported from the country, denied reentry into the country, or denied citizenship if you apply." Appellant indicated he understood.
In 1993, the prosecutor advised appellant that "if you are not a United States citizen, your plea and conviction in this case could be the basis of your being deported, having reentry into the United States denied, or having any application for citizenship or residency also denied." (Case No. VA025118.) Appellant indicated that he understood the consequences. In both cases, appellant initialed and signed plea forms that included verbatim the statutory language.
In the original 1993 plea proceedings (case No. VA025118), appellant was not advised of the immigration consequences of his plea. A change in plea proceedings was held two weeks later to change the disposition and, at that time, appellant was advised of the immigration consequences.
The advisements given to appellant in 1987 and 1993 complied with the requirements of section 1016.5, subdivision (a). Appellant has not shown that he was not properly advised of the immigrations consequences of his pleas, thus, we do not reach the issue of prejudice. The trial court did not abuse its discretion in denying the motions.
The judgment (order denying motions to vacate) is affirmed.
We concur: GILBERT, P.J. YEGAN, J.