P. v. Astorga
Filed 8/15/12 P. v. Astorga CA4/1
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REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIANA ASTORGA,
Defendant and Appellant.
D059763
(Super. Ct. No. SF135757)
APPEAL
from an order of the Superior Court of San Diego
County, Stephanie Sontag, Judge. Affirmed.
Adriana Astorga appeals from
an order denying her motion to vacate a guilty plea entered in 1999 to felony marijuana possession for sale. Astorga contends: (1) the court erred in denying her
motion as untimely because the six-month time limitation in Penal Code section
1018 (undesignated statutory references are to the Penal Code) was directory
rather than mandatory; and (2) the trial court failed to adequately advise her
of the consequences of her plea, as required by section 1016.5. We reject Astorga's arguments and affirm the
order.
FACTUAL AND PROCEDURAL HISTORY
In 1999, Astorga pleaded
guilty to felony possession of marijuana for sale after attempting to smuggle
55 pounds of marijuana across the San Ysidro border. On her plea form, Astorga initialed the
statement: "I understand that if I
am not a citizen of the United States a plea of Guilty or No
Contest could result in deportation, exclusion from admission to this country,
and/or denial of naturalization."
She also declared under penalty of perjury that she had read and
understood each of the items on the plea form and that they were "true and
correct." Astorga's attorney
attested that he "personally read and explained the contents of the [plea
form] to [Astorga]" and concurred in her plea and waiver of constitutional
rights. The court suspended a sentence
of 90 days in custody and granted Astorga three years probation.
In 2010, Astorga moved to
vacate her guilty plea, asserting the immigration advisement of the plea form
was insufficient under section 1016.5 and left her inadequately informed about
the immigration ramifications of her plea.
Specifically, Astorga alleged that she was unaware that her guilty plea
barred her from renewing her residency status in the United
States and subjected her to deportation.
The court denied the motion, finding that it was untimely. This appeal followed.
DISCUSSION
I. Timeliness of Motion to Vacate
Astorga argues the trial
court abused its discretion in denying her motion to vacate her guilty plea on
the basis that it was untimely.
Specifically, she contends the time limitation set forth in section 1018
should be "liberally construed" as directory rather than mandatory in
the interest of justice. We reject
Astorga's argument.
As a general rule, a
postjudgment motion to change a plea must be seasonably made. (People v. Schwarz (1927) 201 Cal. 309, 314.) Absent
a timely objection, a defendant forfeits his right to complain on grounds that
he was not advised of the collateral consequences of a guilty plea, such as
immigration consequences. (
v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 203.) The
trial court's denial of a motion to vacate a guilty plea will not be disturbed
unless an abuse of discretion is clearly demonstrated. (People
v. Francis (1954) 42 Cal.2d 335, 338; People v. McMillan (1971) 15 Cal.App.3d 576, 581.)
Section 1018 authorizes the
court to permit a defendant to withdraw his or her guilty plea "at any
time before judgment or within six months
after an order granting probation is made if entry of judgment is suspended." (Emphasis added.) The statute provides that it shall be "liberally
construed" to "promote justice."
(§ 1018.)
In People v. Miranda (2004) 123 Cal.App.4th 1124 (Miranda), the court considered whether section 1018's six-month
limitation period was directory or mandatory.
It determined that the limitation period was mandatory in light of the
legislative purpose "
'to eliminate
late withdrawal of pleas and the resultant jeopardy to the prosecution caused
by the passage of time.' " (Id.
at p. 1131 [citing Sen. Com. on Judiciary, analysis of Assem. Bill No. 2174 (1991–1992
Reg. Sess.) as amended May 30, 1991]; see also People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618 ["it
would be a mockery of justice to permit the defendant to change his plea after
12 years, after material witnesses may have died or disappeared"].) Thus, after expiration of the six-month time
period, the trial court lacks jurisdiction to consider defendant's motion to
vacate his guilty plea. (
Here, almost 12 years have
passed between Astorga's guilty plea and her motion to withdraw it. We see no reason in this case to depart from
the rationale and conclusion in Miranda that
section 1018's time limitation is mandatory rather than directory. Extending the statutory period would
prejudice the People and interfere with section 1018's stated purpose to
"promote justice."
Accordingly, we conclude the trial court properly denied Astorga's
motion to vacate her guilty plea because it did not have jurisdiction to grant
her motion beyond the six-month statutory limit.
II. Notice of Immigration Consequences
Even if Astorga timely moved
to vacate her guilty plea, we reject her argument on the merits that the trial
court failed to adequately advise her of the consequences of her guilty plea
because section 1016.5 required a verbal advisement by the trial court to
supplement the notice provided in her written plea form. We conclude that the plea form satisfied the
statute's notice requirements.
Section 1016.5, subdivision
(a), requires courts to inform noncitizens pleading guilty to certain felonies
that a conviction "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."
This advisement shall be given on the record. (Ibid.) If the court fails to advise the defendant of
the possible immigration consequences, it must vacate the judgment and permit the defendant to enter a plea of
not guilty. (§ 1016.5, subd. (b).)
Our Supreme Court has held a
validly executed written plea form is a proper substitute for verbal
admonishment by the trial court and satisfies a knowing and intelligent waiver
of constitutional rights. (In re Ibarra (1983) 34 Cal.3d 277,
281, disapproved on another ground in People
v. Howard (1992) 1 Cal.4th 1132, 1175-1178.) "[A] defendant who has signed a waiver
form upon competent advice of his attorney has little need to hear a ritual
recitation of his rights by a trial judge . . . . [¶] .
. . So long as the waiver form contains sufficient information, and both the
defendant and his counsel attest to its valid execution, the judge may, in his
discretion, dispense with further explanation to the defendant of his
rights." (Id. at p.
286.) The rule applies to constitutional
rights as well as statutory rights. (
519, 522 (Ramirez).)
In Ramirez, the immigration advisement required by section 1016.5
appeared in defendant's plea form but was not orally recited at the plea
hearing. (Ramirez, supra, 71
Cal.App.4th at pp. 520-521.) The court
rejected defendant's claim that he should have been advised of the immigration
consequences orally by the court, noting the statute contains "no language
which states the advisements must be verbal, only that they must appear on the
record and must be given by the court."
(Id. at p. 521; see also
Cal.App.4th 169, 174-175 [written notice of immigration consequences can cure
deficiencies in oral advisement].) The
purpose of section 1016.5 "is to ensure a defendant is advised of the
immigration consequences of his plea and given an opportunity to
consider them." (Ramirez,
supra, at p. 522.)
Here,
as in Ramirez, Astorga was advised of
the possible immigration consequences through her plea form. She acknowledged on the form that she
understood that her plea could result in deportation, exclusion from the United
States and denial of naturalization.
Further, Astorga's attorney attested that he explained the contents of the
plea form to her. The plea form along
with Astorga's acknowledgment of its contents and her attorney's attestation
satisfied section 1016.5's purpose to ensure that Astorga was advised of the
consequences of her plea and had an opportunity to consider them. Under these circumstances, there was no need
for oral advisement from the court.
Astorga further discusses
recent changes in immigration laws and alleges that the plea form was
inadequate because it failed to capture the "virtual certainty" of
her deportation from the country.
However, as Astorga acknowledges, the plea form "mirror[ed] the
language of [] section 1016.5, subdivision (a)" which only requires an
advisement that a conviction "may" have immigration
consequences. We note that the trial court
did not have control over Astorga's immigration status and thus could not
advise her that she would certainly be deported. Under the circumstances of this case, section
1016.5's requirements were satisfied because Astorga was put on notice of the
possible consequences of her plea.
DISPOSITION
The order is
affirmed.
McINTYRE, J.
WE
CONCUR:
HUFFMAN, Acting P. J.
HALLER,
J.
