Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. MCR201117
Lambden, J.
In 1993, defendant pleaded guilty to unlawful possession of marijuana for purpose of sale (Health & Saf. Code, § 11359). In 2007, he was ordered to appear for removal proceedings in immigration court. Following this notice, defendant filed in the superior court a motion pursuant to Penal Code section 1016.5 to vacate the 1993 judgment. The superior court denied the motion. He appeals, arguing, among other things, that the trial court applied the wrong standard of prejudice. We are unpersuaded by his arguments and affirm the judgment.
BACKGROUND
Defendant is a citizen of Mexico and a legal permanent resident (LPR) of the United States. According to the probation report, a search warrant was served at defendant’s residence on October 14, 1992. During the search, deputies found 6.735 pounds of marijuana, 11.56 grams of cocaine, one 16-gauge single-shot shotgun, one 12-gauge pump shotgun, one .22-caliber rifle, one Colt .45-caliber handgun, a Calibron scale, and a Deering gram scale. Upon questioning, defendant told the detective that all of the marijuana and cocaine found in the house belonged to him. Defendant was arrested.
A complaint was filed on October 16, 1992, charging defendant with unlawful possession of marijuana for purpose of sale (Health & Saf. Code, § 11359) and unlawful possession for sale and purchase of cocaine (id., § 11351). Both counts alleged firearm enhancements (Pen. Code, § 12022, subd. (c)).
On April 7, 1993, defendant pleaded guilty to unlawful possession of marijuana in exchange for the dismissal of the charge related to cocaine. The minute order stated defendant was advised of the registration requirement under section 11590 of the Health and Safety Code and received the alien advisement. On May 20, 1993, the court granted defendant formal probation for two years.
According to defendant, in October 2006, he visited his extended family in Mexico. When he returned to the United States, defendant stated that he was cited as an “arriving alien” and put into deportation proceedings. On June 7, 2007, defendant received a notice to appear for a hearing in removal proceedings in the immigration court on September 20, 2007.
On September 6, 2007, prior to his immigration hearing, defendant filed a motion in the superior court pursuant to Penal Code section 1016.5 to vacate the 1993 judgment. Defendant asserted that, prior to entering his guilty plea to violating Health and Safety Code section 11359, the court did not properly advise him of the adverse immigration consequences resulting from a conviction under this statute and that he would not have entered a plea of guilty had he been properly advised. Defendant declared that his counsel also failed to advise him regarding the likely immigration consequences related to his conviction under Health and Safety Code section 11359. Further, he asserted that his counsel never suggested that he speak with an immigration attorney for immigration advice related to his criminal case. Defendant claimed that, at the time he entered his plea, he had been an LPR for approximately 20 years and had been working at his job since 1978. Further, he asserted that all of his immediate family resides in the United States and he has four children who are citizens of the United States. Defendant also avowed: “I have no prior record other than the present offense, and I have completed every aspect of the terms related to the sentence and subsequent probation.”
Defendant further declared: “Had I known of the immigration consequences I would have definitely proceeded to trial, as I do not believe that the case against me on the ‘sales’ charge was particularly strong. At the time of the offense, I told police officers that the visitors at my home were actually in possession of the controlled substances. I think that evidence supporting this would have provided me with a defense at trial.”
On October 18, 2007, the trial court denied defendant’s motion to vacate the judgment. The court found that defendant had established that he had not received the requisite advisement. The court stated that the record indicated that “some sort of ‘alien advisement’ was given, [but] the record [did] not show that the specific advisements were given, and the People [did] not rebut[] the presumption that the advisements were not given.” That court ruled that defendant also had “shown that he suffers more than just a remote possibility of one or more specified immigration consequences, as he is currently in deportation proceedings as a result of this conviction.” Nevertheless, the court rejected defendant’s request to vacate the judgment because it determined he had failed to show prejudice.
With regard to its finding that defendant had not established prejudice, the trial court noted that defendant had declared that he would not have entered the plea had he been properly advised. The court gave almost no weight to this assertion because it considered defendant’s declaration to be “self-serving” and needed “to be corroborated by independent evidence.” Following this statement, the court cited In re Alvernaz (1992) 2 Cal.4th 924, 938 (Alvernaz) and In re Resendiz (2001) 25 Cal.4th 230, 254 (Resendiz). The court observed that defendant was facing four to seven years if convicted of all the charges and he did not have to serve any prison time because of the plea deal. The court noted that defendant claimed that the evidence against him was weak and that he had evidence that the drugs belonged to someone else, but such assertions were contrary to the record. The probation report indicated that defendant had admitted to the officer that the drugs were his and that he sold drugs. The court concluded: “In light of the evidence found in defendant’s home, and his admissions to the officer about his possession and sale of drugs, the probable outcome of the trial had he not entered a plea would likely have been a guilty verdict, subjecting defendant to the same immigration consequences he now faces. Additionally, defendant has not produced evidence that the prosecution would have agreed to a plea that would have allowed defendant to avoid adverse immigration consequences. Finally, defendant’s credibility is undermined by the fact that he claims that he has no prior record other than the present offense, yet the People have produced evidence indicating that defendant does in fact have a lengthy record. [¶] In sum, the court finds insufficient evidence that defendant would have proceeded to trial had he been properly advised of the immigration consequences.”
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant challenges the lower court’s denial of his motion to vacate the judgment. Before a state court accepts a plea of guilty or no contest, Penal Code section 1016.5 requires that the court advise the defendant that if he or she is not a citizen, the conviction “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization[.]” (Pen. Code, § 1016.5, subd. (a).) The statute further provides that if “the court fails to advise the defendant as required” and the defendant shows that the conviction may have adverse immigration consequences, then the court shall, on the defendant’s motion, vacate the judgment and allow the defendant to withdraw the plea. (Id., § 1016.5, subd. (b).)
Thus, to obtain relief under Penal Code section 1016.5, 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 conviction, the defendant actually faces one or more of the statutorily specified immigration consequences; and (3) the defendant was prejudiced by the court’s failure to provide complete advisements. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200.) We review the trial court’s ruling denying the motion to vacate judgment for abuse of discretion. (Id. at p. 192.)
In the present case, the lower court found that defendant established the court’s failure to advise him of the immigration consequences and that he would suffer an adverse immigration consequence as a result of his conviction. The court, however, determined that defendant did not show prejudice; defendant challenges the no prejudice finding.
The People contend that the minute order stating “alien advisement given” was sufficient to establish the requisite advisement. When addressing that exact issue in People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244-1245, the court held: “This was insufficient to show that appellant was advised of all three possible immigration consequences, and as the prosecution presented no further evidence, the presumption was not rebutted.” The People argue in a footnote that Castro-Vasquez was incorrectly decided because we must presume the trial court performed its duty under Evidence Code section 664. The People, however, ignore that Penal Code section 1016.5 expressly provides the following: “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.” (Pen. Code, § 1016.5, subd. (b), italics added.) The advisement need not be in the statutory language, but the defendant must be specifically advised of each of the three immigration consequences of his or her plea. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174.) Here, there is nothing in the record to indicate that defendant received an advisement regarding each of the three immigration consequences of his plea and, as required by Penal Code section 1016.5, subdivision (b), we will not presume that he received such an advisement.
Our Supreme Court has held that when the error is the failure to advise regarding the consequences of the plea, “ ‘the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is “reasonably probable” the defendant would not have pleaded guilty if properly advised.’ ” (Zamudio, supra, 23 Cal.4th at p. 210.) This question is a factual one. (Ibid.) Accordingly, when reviewing a finding of no prejudice, we apply the substantial evidence rule. (People v. Quesada (1991) 230 Cal.App.3d 525, 533, superseded by statute on another ground.) “ ‘When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.’ [Citation.]” (Scott v. Common Council (1996) 44 Cal.App.4th 684, 689, quoting Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.)
Here, the trial court considered defendant’s declaration and determined that he lacked credibility, and we conclude that the record amply supports such a finding. The lower court noted that defendant claimed that the evidence against him was weak and that he had evidence the drugs belonged to someone else. The probation report, however, disclosed that defendant had admitted to the officer that the drugs were his. The probation report indicated that defendant first told the officers that he purchased the marijuana at the bargain price of $400 per pound, but later claimed that he was merely storing the marijuana for a friend. Further weakening defendant’s credibility was his assertion that he had no prior record other than the present offense. The probation report stated that prior to the present offense defendant “had five separate conditional sentence grants. At the time of his arrest in the instant matter, he was subject to the terms of two conditional sentence grants.” Specifically, from 1983 to 1991, defendant was found guilty on three separate occasions of violating Vehicle Code section 14601.1, subdivision (a); was found guilty once of violating Vehicle Code section 23152, subdivision (a); and was found guilty once of violating Vehicle Code section 23152, subdivision (b). Further, in March 1994, after his conviction of the present offense, defendant admitted a violation of his probation and violating Vehicle Code section 23103.5. Defendant’s probation was again revoked and, on September 30, 1994, defendant admitted that he violated his probation by violating Vehicle Code section 23103.5. In 1995, defendant pleaded no contest to violating Penal Code section 273.5, subdivision (a).
In addition to defendant’s credibility problem, the record established that defendant had admitted to the police that the drugs belonged to him. In addition to the drugs, the officers found firearms and discovered equipment associated with the sale of drugs. If defendant had proceeded to trial, he faced a sentence with the upper term of seven years. He received no jail time under his plea agreement. Consequently, we concur with the trial court that it is not reasonably probable that defendant would have proceeded to trial and rejected the plea deal had he received his proper immigration advisements.
Defendant contends that the lower court abused its discretion in denying his motion to vacate because, according to defendant, the court used the wrong standard of prejudice. He claims that the court improperly required him to prove that the probable outcome of the trial would not have resulted in the same immigration consequences. He claims that the court’s citation to two writ of habeas corpus decisions (Alvernaz, supra, 2 Cal.4th 924; Resendiz, supra, 25 Cal.4th 230) in its written ruling establishes that it used the standard of prejudice for an ineffective assistance of counsel claim rather than the prejudice standard for a motion to vacate pursuant to Penal Code section 1016.
We are unpersuaded by defendant’s argument that the lower court incorrectly used a more stringent standard of prejudice. The trial court did cite one time to Alvernaz and Resendiz in its written ruling after it made the following statement: “[T]his court finds that defendant has failed to establish prejudice. Although defendant has declared that he would not have entered the plea had he been properly advised, the declaration is self-serving and needs to be corroborated by independent evidence.” Our reading of the court’s ruling and the Alvernaz decision indicates that the trial court relied on Alvernaz simply for the proposition that a defendant’s claim after trial must be examined carefully. Indeed, the Alvernaz court cautioned: “[A] court should scrutinize closely whether a defendant has established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain.” (Alvernaz, supra, 2 Cal.4th at p. 938, fn. omitted.) Similarly, the trial court’s citation to Resendiz does not suggest that it was requiring defendant to prove that a trial would have resulted in a more favorable outcome. Indeed, in Resendiz, the Supreme Court never even reached or addressed the issue of whether the defendant could have proved a more favorable outcome because it concluded that the defendant had not persuaded the court that it was “reasonably probable he would have forgone the distinctly favorable outcome he obtained by pleading, and instead insisted on proceeding to trial, had trial counsel not misadvised him about the immigration consequences of pleading guilty.” (Resendiz, supra, 25 Cal.4th at p. 254.)
Accordingly, the trial court’s mere citation to these ineffective assistance of counsel cases does not establish that it required defendant to use the heightened standard of prejudice applicable to these cases. It is true that the lower court pointed out that the probable outcome of a trial would have been a verdict of guilty, which would have subjected defendant to the same immigration consequences. However, the court did not base its ruling on this observation and it expressly found there was “insufficient evidence that defendant would have proceeded to trial had he been properly advised of the immigration consequences.” This latter statement reflects the proper test for prejudice.
To bolster his argument that the lower court used the incorrect standard of prejudice, defendant points to the court’s ruling that he did not become aware of the possible immigration consequence of his plea until late 2006 or early 2007. He maintains that this factor was a significant factor related to a finding of prejudice and the trial court’s failure “to reconcile its finding of lack of [defendant’s] actual knowledge and insufficient prejudice further supports the finding that the trial court applied the wrong standard of prejudice.”
It is true that “[w]hether [the] defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice . . . . ” (People v. Totari (2002) 28 Cal.4th 876, 884, italics added.) Here, defendant had five prior convictions before the plea in this case, and the prosecutor had argued that defendant would have received the immigration waiver advisements for all five of these violations. The court essentially rejected this argument and found defendant did not have actual knowledge of the consequences of his plea in the present case until late 2006 or early 2007. Thus, although the lower court could have made a finding that these prior convictions supported a finding of no prejudice, it did not. Rather, it found that these prior convictions were irrelevant and based its finding of no prejudice on the fact that defendant was facing a maximum seven-year prison term, that defendant’s statements were not credible, and that defendant had told the police that the drugs belonged to him. The fact that the lower court found in favor of defendant on this one factor does not mean that the lower court had to find defendant had established prejudice. Indeed, if that were the case, the court would be required to find no prejudice whenever the defendant had no prior convictions requiring immigration advisements. That is clearly not the law; the Supreme Court has consistently held that the trial court may allow the withdrawal of a guilty plea only when the defendant was prejudiced by the nonadvisement. (People v. Totari, supra, 28 Cal.4th at p. 884.) As noted above, prior knowledge is simply one factor the court may consider.
Defendant also criticizes the lower court’s ruling for failing to give proper consideration to his evidence “of reasonably related pleas that would not have resulted in the immigration consequences that he faces now.” The trial court found that defendant had not presented any evidence that the prosecution would have agreed to a plea that would have allowed defendant to avoid the adverse immigration consequences. Defendant contends this is the wrong standard under People v. Bautista (2004) 115 Cal.App.4th 229 (Bautista).
After criticizing the trial court for citing to writ decisions involving ineffective assistance of counsel claims in its written ruling, defendant relies on such a case, Bautista, supra, 115 Cal.App.4th 229, when arguing that the present court used the wrong standard when considering his alterative plea possibilities. The defendant in Bautista alleged that he was prejudiced by his trial counsel’s deficient representation because his attorney failed to advise him that deportation and exclusion from readmission were consequences of his plea and his counsel did not attempt to negotiate a plea deal that would not have resulted in deportation. (Id. at p. 237.) The appellate court issued an order to show cause to the trial court for a hearing to take evidence and resolve factual issues relating to defendant’s legal advice at the time of his plea. (Id. at p. 242.)
Defendant argues that the present case is controlled by the holding in Bautista where the reviewing court held that the trial counsel’s failure to investigate, advise, and “utilize defense alternatives” to a plea of guilty to an aggravated felony prejudiced the defendant. (Bautista, supra, 115 Cal.App.4th at pp. 238-239.) Defendant’s reliance on Bautista is misplaced. The fact that the trial counsel in Bautista had a responsibility to advise his client about alternatives to the plea of guilty has no bearing on the question before us. The court has no duty to advise the defendant about the actual immigration consequences of a plea. The court’s responsibility is simply to give the immigration advisements. Here, the lower court did not give the proper advisements, but the judgment will be vacated only if defendant can establish that it is not reasonably probable that he would not have entered the plea had he been provided the requisite advisements. In assessing defendant’s claim that he would not have agreed to the plea but would have sought an alternative plea with less serious immigration consequences, the lower court properly considered whether the defendant submitted any evidence that the prosecution would have considered any other plea deal.
Here, the record amply supported the lower court’s determination that it was not probable that the prosecution would have offered defendant a more lenient plea deal. This finding was supported by the following evidence: the amount of drugs found in defendant’s home, the equipment and firearms found in defendant’s home, defendant’s credibility problems, defendant’s criminal history, and defendant’s admission to the officers. Defendant provided no evidence on this record to indicate that the prosecution would have offered him a deal that would have allowed him to plead guilty to transportation, offering to sell, simple possession, or accessory after the fact; crimes that he claims would have resulted in less serious immigration consequences.
Further, we note that defendant simply argues that any of the foregoing offenses would have allowed him to avoid the extreme immigration consequences that he now faces and does not assert these offenses do not require the very same immigration advisement. In any event, the question here is not whether another plea would have had less severe immigration consequences. As already emphasized, the trial court is only obligated to give the advisements; it, unlike defense counsel, does not have to explain to the defendant the actual immigration consequences. It may be true that a different plea would have resulted in less severe immigration consequences, but that has no bearing on any prejudice defendant may have suffered from the trial court’s failure to advise him that his plea may have naturalization consequences.
In his reply brief, defendant argues that the trial court’s statement that defendant failed to provide evidence that alternative pleas were available to him establishes that the court used the standard of prejudice necessary for an ineffective assistance of counsel claim. We disagree. Under the harmless error analysis, defendant had to establish that, had the court given him the proper advisements, he would not have accepted the plea agreement. One of defendant’s arguments was that he would have negotiated a different plea agreement, i.e., a deal that would not have had the same immigration consequences. Any defendant can make such a claim. Here, the lower court properly considered whether there was any evidence to support such a claim.
The only evidence defendant points to in support of his argument that the prosecutor would have been amenable to a plea deal that did not result in such harsh immigration consequences is the probation report. Defendant stresses that the probation report recommended leniency. The probation report recommended supervised probation, but it did not suggest that defendant should have been offered a different plea deal. Further, the probation report stated that this “crime was somewhat more serious than other instances of the same crime, in that the defendant possessed nearly seven pounds of marijuana. He also possessed four firearms, including a handgun. His prior record indicates a pattern of regular criminal conduct. He was on conditional sentence, in two separate matters, at the time of this offense.” Indeed, although the probation report recommended probation, it noted: “Should the court instead choose a direct commitment to CDC, the factors in aggravation and mitigation appear to be roughly in balance, suggesting the mid-term.” Thus, nothing in this report suggests that the probation officer would have supported a more favorable plea deal for defendant.
Finally, defendant argues that the trial court relied exclusively on “outcome determinative factors in assessing prejudice” and ignored the other factors such as his ties to the United States. He maintains that his family’s presence in the United States, his children’s American citizenship status, and his job supported a finding that he would not have entered a plea if adequately advised of the immigration consequences. We disagree that the court did not consider this evidence. When taking the matter under submission, the court expressly stated that it had reviewed “all of the documents” but wanted additional time to research the issue. There is nothing in the record to indicate that the court was not aware of defendant’s ties to the United States. Rather, it appears that the court considered these factors but found that the potential for a seven-year prison term, the strength of the prosecution’s case, the unlikelihood of a better plea deal, and defendant’s lack of credibility made it unlikely that defendant would have given up the plea deal resulting in probation had he been properly advised of the immigration consequences. This was not a situation where the trial court simply concluded that the defendant would not have gone to trial. The court expressly stated that it had reviewed all of the documents and it set forth its reasons for denying defendant’s motion to vacate the judgment. The record supports the lower court’s findings.
We conclude that the trial court did not abuse its discretion in denying defendant’s Penal Code section 1016.5 motion and substantial evidence supported its finding of no prejudice.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.