Opinion
B203970
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. EMIGDIA ROSALES, Defendant and Appellant.
Luis A. Carrillo for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Emigdia Rosales appeals from the order denying her petition to vacate a 1988 conviction for selling marijuana. The order is appealable. (People v. Totari (2002) 28 Cal.4th 876, 879.) Appellant sought to vacate her guilty plea on the ground she did not receive an adequate advisement of immigration consequences under Penal Code section 1016.5, subdivision (a) (section 1016.5(a)), and because her counsel rendered ineffective assistance by failing to advise her of those consequences. Those arguments are renewed on appeal. We affirm, as the record contains substantial evidence of an advisement pursuant to section 1016.5(a), and appellant has failed to establish ineffective assistance of counsel.
FACTS AND PROCEDURAL HISTORY
On February 2, 1988, appellant was charged with one count of violating Health and Safety Code section 11359 (possession of marijuana for the purpose of sale) and three counts of violating Health and Safety Code section 11360, subdivision (a) (sale or transportation of marijuana).
On March 29, 1988, pursuant to a plea bargain, appellant pled guilty to two of the Health and Safety Code section 11360 counts. The charges had contained the possibility of a state prison sentence. Appellant agreed to probation with up to 180 days in county jail, concurrent on both counts. Her counsel at that time was Larry Williams.
The transcript of the plea proceedings shows that the prosecutor asked appellant, "You understand if you are not a citizen, by pleading guilty to a felony it is possible that it could result in your deportation from this country, prevent your re-introduction into this country or prevent you from becoming naturalized as a U.S. citizen?" Appellant answered, "Yes." In accepting the plea, the court found that appellant understood the consequences of the plea.
On April 26, 1988, appellant was sentenced to three years of probation with various conditions, including 50 hours of community service. She was ordered to spend five days in county jail but received five days of custody credit.
Over 19 years later, in August 2007, appellant moved to vacate the judgment and dismiss the case. The motion was filed by different counsel, Luis A. Carrillo. It asserted two grounds: (1) The court itself failed to advise appellant of immigration consequences at the time of the plea. (2) Appellants prior counsel, Mr. Williams, rendered ineffective assistance, by failing to advise her of those consequences at the time of the plea.
The "Statement of Facts" part of the motion recognized that at the time of the plea, appellant signed a written advisement of rights and waiver form that contained this language: "I understand that if I am not a citizen, a plea of guilty or no contest could result in deportation or exclusion from admission to this country, or denial of naturalization." The Statement of Facts asserted, however, that appellant was not advised of those rights by the trial court or by the deputy district attorney. Also, "to the best of her recollection," appellant did not recall being advised of those consequences by former defense counsel, who simply told her "she would receive less jail time" if she entered into the guilty plea. She learned of the immigration consequences when she received notification that she faced deportation proceedings. If she had known the immigration consequences of the plea, she would have elected a trial by jury rather than accepting the guilty plea.
The motion concluded with a declaration from Mr. Carrillo about what appellant knew and understood at the time of the plea. The motion did not include a declaration from appellant herself.
The motion was heard and denied on September 12, 2007.
This appeal followed. Mr. Carrillo continues to represent appellant.
DISCUSSION
Section 1016.5(a) states: "Prior 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."
Pursuant to subdivision (b) of section 1016.5, the remedy for an inadequate advisement of immigration consequences is to vacate the judgment and permit withdrawal of the guilty plea.
"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." (People v. Totari, supra, 28 Cal.4th at p. 884; see People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 200.)
The trial courts ruling on the motion is reviewed for abuse of discretion. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 172 (Gutierrez).)
"[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." (Gutierrez, supra, 106 Cal.App.4th at p. 174.)
"[T]he word `court as used in section 1016.5 [is construed] to refer to the tribunal in which defendant enters his plea. Under this construction, the advisement referred to therein may be given through any of the numerous individuals acting on behalf of that tribunal, including the judge, counsel, the court reporter, or the clerk. So long as the legislative purpose is advanced by having some person acting on behalf of the tribunal actually advise defendant of the immigration consequences of his plea and that advice is reflected `on the record, the actual adviser is immaterial." (People v. Quesada (1991) 230 Cal.App.3d 525, 535-536.)
Based on the above principles, we find no abuse of discretion here, as the record shows substantial compliance with section 1016.5.
Appellants chief argument is that the court itself had to give the advisement pursuant to the express language of section 1016.5. The argument lacks merit. An admonishment by the trial court was not required, as appellant signed a waiver form that included a written advisement under section 1016.5. (Gutierrez, supra, 106 Cal.App.4th at p. 175; People v. Ramirez (1999) 71 Cal.App.4th 519, 521; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 283, p. 497.)
Moreover, although the motion said that the prosecutor made no advisement of immigration consequences, the record shows that the prosecutor made such an advisement. On appeal, shifting gears, appellant argues that the advisement by the prosecutor was insufficient, as the court itself had to make the advisement. We reject the argument because the verbal advisement by the prosecutor was sufficient under Gutierrez, supra, 106 Cal.App.4th at page 174 and People v. Quesada, supra, 230 Cal.App.3d at pages 535-536.
Appellant further maintains that she received constitutionally ineffective assistance of counsel because her counsel advised her to plead guilty and did not insist that the court itself advise her of the immigration consequences. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 687-689.)
Upon an appropriate showing, affirmative misadvice of immigration consequences may constitute ineffective assistance of counsel. (In re Resendiz (2001) 25 Cal.4th 230, 240.) The defendant must establish "that a reasonable probability exists that, but for counsels incompetence, he [or she] would not have pled guilty and would have insisted, instead, on proceeding to trial." (Id. at p. 253.) Here, as in Resendiz, appellant did not meet that burden, as she has not established a reasonable probability that if counsel had given her different advice, she would have forgone the "distinctly favorable outcome" of the plea bargain and instead would have proceeded to trial. (Id. at p. 254.)
DISPOSITION
The order denying the petition to vacate the judgment is affirmed.
We concur:
RUBIN, Acting P. J.
BIGELOW, J. --------------- Notes: The waiver form itself is not in the record, but the parties do not contest the language of the waiver form, which appellant discussed in the motion.