NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT*
INTRODUCTION
In 1998, defendant/appellant Antonio Castaneda Rodriguez entered into a plea agreement whereby he pled to one count of violating Health and Safety Code section 11352, sale of the controlled substance heroin, in exchange for dismissal of other charges and an indicated sentence of formal probation. In 2015, defendant moved to vacate his conviction pursuant to Penal Code section 1016.5, subdivision (b),1 for failure to advise of immigration consequences prior to entering his plea. The superior court denied the motion to vacate and defendant appeals. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 1998, defendant was a codefendant in a multi-count case that alleged the three defendants had engaged in drug trafficking. Defendant was charged with possession for sale and sale of heroin. Pursuant to a plea agreement, defendant pled to one count of violating Health and Safety Code section 11352 in exchange for dismissal of the other count and an indicated sentence of formal probation.
The written plea form initialed and signed by defendant included the following statement: "If I am not a citizen my change of plea could result in my deportation, exclusion from admission to the United States, and/or a denial of naturalization." Defendant initialed the box next to this statement. Defendant signed the change of plea form under penalty of perjury, verifying that he read, understood, and initialed each of the items on the form.
The Spanish interpreter signed the change of plea form, stating that he had interpreted the form into Spanish for defendant; defendant indicated he understood the contents of the form; and defendant then initialed the form. Defendant's lawyer also signed the change of plea form. The lawyer's verification states in part that the lawyer has gone over the form with the client; answered all of the client's questions about the change of plea form; and "explained the consequences of this plea."
At the June 25, 1998, change of plea hearing, defendant had the assistance of his lawyer and a Spanish interpreter. The trial court asked defendant if he had initialed and understood the change of plea form, to which defendant responded affirmatively. Defendant entered a guilty plea to the charge of selling heroin. The trial court asked defendant if he had any questions about his plea or the "consequences of that plea?" Defendant responded, "No." The trial court then asked, "In other words, do you understand what you're doing?" Defendant responded, "Yes."
On February 24, 2015, defendant filed a motion pursuant to section 1016.5 to vacate his conviction. Defendant submitted a declaration in support of the motion, in which he declared that he was "never advised of the immigration consequences as a result of my plea by either the translator, attorney, or judge." (Italics and underline in original.) He alleged that because of his 1998 plea, he could not obtain legal permanent resident status and was in danger of deportation. No copy of the change of plea form signed by defendant was included with the moving papers.
On March 4, 2015, the People filed opposition to defendant's motion to vacate. The People attached to their opposition a copy of the change of plea form signed by defendant. Defendant filed a response to the opposition.
A hearing on the motion was held on October 16, 2015; a Spanish interpreter was provided for defendant; defendant also had counsel present. The superior court granted a continuance to allow defendant to call his defense attorney from 1998 as a witness. At the November 17, 2015, continued hearing, defendant again had counsel and a Spanish interpreter present. Defendant's defense attorney from 1998 was not present. After reviewing the moving papers, opposition to the motion, the change of plea form, and the transcript from the 1998 change of plea hearing, the superior court issued its ruling, stating:
"[T]he Defendant initialed and signed the Change of Plea form, also that he understood, this includes or included the heading consequences of the plea, it sets forth three possible immigration consequences. The defendant's initials are in the box next to this paragraph. He signed and dated the form under penalty of perjury that he had read and understood and initialed each of item. The Change of Plea form has not only the defendant's statement under penalty of perjury, but also that of his attorney and that of the interpreter. The Court made specific findings that the defendant understood his rights and the consequences of his plea, and that he freely and voluntarily given up those rights.... My ruling is to deny the Defendant's motion to vacate...."
Defendant filed a notice of appeal of the denial of his motion to vacate the 1998 conviction. He also obtained a certificate of probable cause.
DISCUSSION
Defendant contends that even though he, defense counsel, and the Spanish interpreter signed the change of plea form verifying that defendant initialed, signed, and understood the form, "there was no attestation from the defense counsel that he explained the form" to defendant, that defendant "understood," or that defense counsel "witnessed" defendant sign and initial the boxes. Defendant apparently contends that the trial court was required to ask defense counsel to attest verbally, and that the written plea form is insufficient. He is mistaken.
Section 1016.5 and Standard of Review
Section 1016.5 provides, in relevant part:
"(a) 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.
"(b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If ... 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. [¶]... [¶]
"(d) The Legislature finds and declares 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...."
"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. [Citations.] On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. [Citation.] Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. [Citation.] Thus, in deciding the merits of defendant's motion to vacate, it may be important for the trial court to determine the factual issue of knowledge." (People v. Totari (2002) 28 Cal.4th 876, 884.)
We consider each requirement in turn, reviewing the trial court's ruling for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio). As we have previously explained in the context of a ruling on a motion brought under section 1016.5, "[T]he reviewing court may not disturb the trial court's order in the absence of abuse of discretion. [Citations.] An abuse of discretion occurs if the court acted `in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.' [Citations.] The defendant must establish by clear and convincing evidence the grounds for withdrawing a guilty plea. [Citations.]" (People v. Suon (1999) 76 Cal.App.4th 1, 4.)
Analysis
Although an advisement under section 1016.5 need not track the statutory language exactly and only substantial compliance with section 1016.5 is required (Zamudio, supra, 23 Cal.4th at pp. 207-208; People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174), a defendant nonetheless must be specifically advised of all three separate immigration consequences of his plea, namely, deportation, exclusion from admission, and denial of naturalization (People v. Gutierrez, supra, at p. 174).
It has been held that "the legislative purpose of ensuring a defendant is aware of the possible immigration consequences of a guilty plea ... is best and most reasonably served by construing the word `court' as used in section 1016.5 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 [or] counsel.... 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.... [¶] ... [¶] Nor need the statutory admonition be given orally. It is sufficient if ... the advice is recited in a plea form and the defendant and his counsel are questioned concerning that form to ensure that defendant actually reads and understands it." (People v. Quesada (1991) 230 Cal.App.3d 525, 535-536.)
In defendant's case, the change of plea form specifically advised of all three separate immigration consequences, and defendant initialed this provision of the form. At the change of plea hearing, the trial court asked defendant if he understood the contents of the form and defendant responded, "Yes." The trial court also asked defendant if he had in fact initialed each provision of the form and signed the form; defendant again responded, "Yes." The trial court also asked defendant if he had any questions about the consequences of his plea; defendant responded, "No." Finally, the trial court asked defendant if he "understood what you're doing," and defendant responded, "Yes."
This record establishes that defendant affirmatively represented he understood the change of plea form; affirmatively represented he had personally initialed and signed the change of plea form, including the paragraph on immigration consequences; and affirmatively represented he had no further questions about the consequences of entering a plea. This record establishes that defendant was adequately advised of the consequences of his plea in 1998 because the record demonstrates that the trial court questioned defendant on whether he understood the form, which included the immigration consequences advisement, and defendant affirmatively represented he understood. (People v. Quesada, supra, 230 Cal.App.3d at p. 536.)
There is no requirement that the trial court verbally advise defendant of immigration consequences; the written plea form is sufficient. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521-522.) Because the written change of plea form included the three immigration consequences set forth in the statute, there was no obligation on the part of the trial court to provide a verbal advisement. A trial "court `may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment.' [Citation.]" (People v. Gutierrez, supra, 106 Cal.App.4th at p. 175.)
Furthermore, contrary to defendant's assertion, there is no requirement that the trial court ask defense counsel to verbally attest to having reviewed the change of plea form with the defendant; defense counsel's written verification is sufficient. (People v. Araujo (2016) 243 Cal.App.4th 759, 761; People v. Ramirez, supra, 71 Cal.App.4th at pp. 520, 523.) Here, defense counsel signed the change of plea form, verifying that he had "gone over this form" with defendant, "explained the consequences of this plea" and "answered all of the defendant's questions."
The cases cited by defendant for the proposition that a verbal immigration advisement must be made by the trial court, In re Ibarra (1983) 34 Cal.3d 277 and In re Tahl (1969) 1 Cal.3d 122, simply do not stand for that proposition. They both address a defendant's constitutional rights; not the statutory immigration advisement under section 1016.5.
Because we conclude the record establishes defendant was fully advised in 1998 of the immigration consequences of his plea, we need not address the other two factors required to be established in order to prevail on a section 1016.5 motion. (See People v. Totari, supra, 28 Cal.4th at p. 884.)
As for defendant's assertion that defense counsel failed to fully advise of immigration consequences, section 1016.5 allows for a conviction to be vacated if a trial court failed to advise of immigration consequences; it cannot serve as a basis for asserting a failure by defense counsel to advise of immigration consequences. (People v. Chien (2008) 159 Cal.App.4th 1283, 1285.)
The California Supreme Court's recent opinion in People v. Patterson (2017) ___ Cal.5th ___ (2017 WL 1130944), does not mandate a different result. In Patterson, unlike in defendant's case, Patterson was seeking to withdraw a plea pursuant to section 1018 and alleged ineffective assistance of counsel. Patterson provided proof that he faced certain deportation; proof that defense counsel had not adequately advised of the certainty of an immigration consequence; and the trial court did not hold an evidentiary hearing. Patterson acknowledged that he received the standard advisement on immigration and did not contend the trial court was required under section 1016.5 to allow him to withdraw his guilty plea. (Patterson, at fn. 5.) In defendant's case, defendant sought to withdraw his plea under section 1016.5 despite receiving the standard advisement; an evidentiary hearing was held by the trial court; defendant failed to present evidence of misadvisement or inadequate advisement of immigration consequences at the time of his plea; and defendant failed to provide proof that he was subject to immigration consequences with certainty at the time of entry of his plea.
Under the facts of this case, the superior court did not abuse its discretion in denying defendant's section 1016.5 motion. (Zamudio, supra, 23 Cal.4th 183 at p. 192.)
DISPOSITION
The order denying defendant's section 1016.5 motion to vacate his 1998 conviction is affirmed. Respondent's second motion to strike appellant's opening brief is denied.
