P.
v. Alvarez-Quintero
Filed 7/3/13 P.
v. Alvarez-Quintero CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO ALVAREZ-QUINTERO, Defendant and Appellant. | F065134 (Super. Ct. No. BF132212A) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Jennifer
Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
This is an
appeal from an order denying a motion to vacate the judgment pursuant to Penal
Code section 1016.5 (hereafter, section 1016.5). We conclude that principles of stare decisis
favor adherence to the rule established by this court in People v. Ramirez (1999) 71 Cal.App.4th 519, 522, permitting the
section 1016.5 advisement to be given in writing prior to acceptance of a
guilty or no contest plea, and that defendant and appellant Armando
Alvarez-Quintero has not presented sufficient reasons for changing that
rule. Accordingly, we affirm the order
on defendant’s section 1016.5 motion.
FACTS AND PROCEDURAL HISTORY
In 2011,
defendant pled no contest to four felony counts and one misdemeanor count, as
follows: transportation or sale of
methamphetamine (count 1, Health & Saf. Code, § 11379, subd. (a));
possession of methamphetamine while in possession of a loaded firearm (count 2,
id., § 11370.1, subd. (a));
possession of methamphetamine for sale (count 3, id., § 11378); possession of methamphetamine (count 4,
carrying a loaded firearm in a public place (count 5, former Pen. Code
§ 12031, subd. (a)(1).)
Pursuant to the plea bargain, the court on October 31, 2011, sentenced
defendant to an operative sentence of probation with one year in county
jail.
Prior to
the change of plea hearing, defendant met with his attorney and a Spanish
language translator and reviewed a change of plea form advising defendant of
his rights and providing certain other advisements. In particular, counsel and the translator
reviewed with defendant, and defendant initialed, a provision in the change of
plea form entitled “ALIEN STATUS,â€
which stated: “I understand that if I am
not a Citizen of the United States, my guilty or no contest plea will result in
my deportation, exclusion from admission to the United States, and denial of
naturalization under the laws of the United States. Deportation
is Mandatory for some offenses. I have
fully discussed this matter with my attorney and understand the serious
immigration consequences of my plea.â€
(All boldface in original.)
Defendant signed the form, declaring under penalty of perjury that he had
read and understood the advisements on the form. Defense counsel signed a statement that he
had reviewed the form with his client, explained it to him, and answered all
his questions. Counsel specifically
stated: “I have also explained any
possible immigration consequences that may result from this plea.†The translator certified that she had
translated the change of plea form into Spanish and that defendant stated to
her that defendant understood the contents of the form.
At the
change of plea hearing, the court
received the change of plea form. The
court asked defendant if he had enough time to talk to his attorney about the
case and whether he had any questions for counsel or for the court. Defendant said he had talked to his attorney
and had no questions. After other
stipulations and waivers, the court accepted defendant’s plea and set the
matter for sentencing.
By May 3,
2012, defendant was in the custody of immigration authorities awaiting deportation
on the basis of his criminal convictions in the present case. On that date, defendant filed a motion
pursuant to section 1016.5, subdivision (b), contending, as relevant to this
appeal, that the trial court had failed to advise him of the immigration
consequences of his no contest plea. At
the hearing on the motion, the court found, based on the reporter’s transcript
of the change of plea hearing and the change of plea form itself, “there was
sufficient compliance with 1016.5.â€
DISCUSSION
Section
1016.5, subdivision (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
States.†Subdivision (b) provides
that a defendant who is not so advised is entitled to have his or her plea and
judgment vacated upon a showing that conviction of the offense may have those
immigration consequences.
Defendant
acknowledges that in the case of People
v. Ramirez, supra, 71 Cal.App.4th at page 522, this court expressly held
that advisement of possible immigration consequences of a plea through the use
of a change of plea form like the one in this case satisfies the requirements
of section 1016.5. The holding in
concerning section 1016.5 by the court in People
v. Quesada (1991) 230 Cal.App.3d 525, 535-536, and the Supreme Court’s
decision in In re Ibarra (1983) 34
Cal.3d 277, 285-286, approving the use of change of plea forms for advisements
concerning constitutional rights waived by a guilty or no contest plea. Defendant nevertheless contends that the
settled case law in this area is wrong, and that section 1016.5,
subdivision (a), requires an oral advisement of immigration consequences by the
judge personally and on the record at the change of plea hearing. He employs the same reasoning rejected in
The
legislative statement of purpose expressed in section 1016.5: “[I]t is the intent of the Legislature in
enacting this section to promote fairness to [] accused individuals by requiring
in such cases that acceptance of a guilty plea or a plea of nolo contendere be
preceded by an appropriate warning of the special consequences for such a
defendant which may result from the plea.
It is also the intent of the Legislature that the court in such cases
shall grant the defendant a reasonable amount of time to negotiate with the
prosecuting agency in the event the defendant or the defendant’s counsel was
unaware of the possibility†of adverse immigration consequences. (Id.,
subd. (d).) Further, in the two decades
since the Quesada opinion and the 14
years since Ramirez, the Legislature
has not changed or clarified section 1016.5 to require oral advisement by
the trial court. Countless pleas of
guilty and no contest have been accepted during that time based upon the use of
change of plea form advisements of possible adverse immigration
consequences. In light of these
circumstances, defendant’s proffered reasons for revisiting this court’s
interpretation of section 1016.5, subdivision (a), are unpersuasive. (See, e.g., Arentz v. Blackshere (1967) 248 Cal.App.2d 638, 640.) Pursuant to the doctrine of stare decisis, we
reiterate the rule from People v.
Ramirez, supra, 71 Cal.App.4th at page 522:
No further oral advisement by the trial court concerning immigration
consequences of a change of plea is required when a defendant has been fully
advised of the possible adverse immigration consequences of his or her change
of plea; the defendant has advised the court, on the record, that he or she understands
that advisement and does not wish additional time to discuss the matter with
counsel; and the change of plea form is made a part of the record, attesting to
the fact that the advisement was given to the defendant in a language he
understood and that the defendant did understand the advisement. Accordingly, we reject defendant’s contrary
contention.
DISPOSITION
The order
denying defendant’s motion under section 1016.5 is affirmed.
name="_ftn1" title="">* Before
Levy, Acting P.J., Poochigian, J. and Peña, J.
