P. v. Avila

Filed 8/6/09 P. v. Avila CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County.

Rand S. Rubin, Judge. Reversed and remanded.

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Miguel Avila appeals from the trial court's denial of his Penal Code[1] section 1016.5 motion to vacate his conviction in case number A980264, for failure to advise him of the immigration consequences of his guilty plea in that case.

We reverse the trial court's order finding that appellant was properly advised of the immigration consequences of his plea, and remand this matter to the trial court for a hearing to determine if appellant has met the other requirements for setting aside his guilty plea.

Facts

In 1989, in case number A980264, appellant pled guilty to two counts of sale or transportation of a controlled substance in violation of Health and Safety Code section 11352. He was granted probation for a period of three years, on the condition, inter alia, that he serve six months in county jail.

Appellant became a father in 1993 and again in 1994. He received both his eighth grade and high school diplomas in 1996. In 2001, appellant began attending Los Angeles City College, which he attended for 10 semesters. Appellant does volunteer work for a number of different charitable and public service organizations.

On November 29, 2005, appellant was found in violation of his probation in case number A980264, by virtue of his actions in another case, 5CR13505. Probation was revoked, then reinstated on the condition that appellant serve 180 days in county jail. At the conclusion of that jail term, appellant's probation was to terminate.

On July 8, 2008, appellant filed his motion pursuant to section 1016.5 to set aside the guilty plea in case number A980264.

Discussion

Appellant contends that the trial court erred in denying his motion to vacate his prior conviction pursuant to section 1016.5. We agree that the trial court erred in finding that appellant had been adequately advised of the immigration consequences of his plea, as required by that section.

A trial court's order denying a motion to vacate under section 1016.5 is an appealable order reviewed for an abuse of discretion. (People v. Totari (2002) 28 Cal.4th 876, 887; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)

Section 1016.5, subdivision (a) provides: "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: [] (b) 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." That section also provides: "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." ( 1061.5, subd. (b).)

Here, there is no known transcript from the 1989 plea hearing, and any reporter's notes from 1989 were disposed of pursuant to court order 10 years after the taking of the notes. The only record of the immigration advisements given to appellant is found in the minute order of the plea proceedings. On that minute order, there is a check by pre-printed box 42, which states in pertinent part "Defendant advised of possible effects of plea on any alien/citizenship/probation/parole status."

Our colleagues in Divisions Three and Four of this District Court of Appeal have found this language to be inadequate to show that a defendant was completely and accurately advised of the immigration consequences of his plea. (People v. Dubon (2001) 90 Cal.App.4th 944, 954-955; People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244-1245.) We agree. There is nothing in the above-quoted language to show that appellant was advised that his conviction could result in deportation or exclusion.

Appellant must show more than a failure to receive a proper advisement to prevail on his motion, however. He must also show that there is more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences and he was prejudiced by the nonadvisement. (People v. Totari, supra, 28 Cal.4th at p. 884.)

Appellant has shown that his 1989 conviction is a deportable offense and that an attorney had advised him that he will be deported and excluded from re-entry, both specific adverse immigration consequences covered by section 1016.5. Respondent does not dispute the adequacy of that showing.

Appellant also submitted a declaration in the trial court in which he states: "I would never have accepted the plea if I had known of these dire immigration consequences. Instead, I would have exercised my right to a jury trial and consulted with my attorney about the immigration consequences of my alternatives." This declaration does constitute a showing of prejudice.

Respondent contends that the declaration is not credible, for a variety of reasons. The issue of prejudice was not reached by the trial court, and the adequacy and credibility of appellant's showing on that issue should be assessed by the trial court. On the record before us, we cannot hold that appellant has or has not shown prejudice as a matter of law.

Respondent also contends that appellant was required to show due diligence and failed to do so. Respondent relies on People v. Totari (2003) 111 Cal.App.4th 1202 to support his contention.

We agree with our colleagues in Division Three that our Supreme Court in People v. Zamudio, supra, "effectively concluded that a defendant has no such burden as to a statutory motion, and the absence of evidence on these issues does not defeat such a motion." (People v. Carty (2003) 110 Cal.App.4th 1518, 1529.)

Disposition

The trial court's order is reversed and this matter is remanded for a hearing to determine prejudice.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.