P. v. Chavez

Filed 6/22/06 P. v. Chavez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H028921

Plaintiff and Respondent, (Monterey County

Superior Court

v. No. SC950682)

MIGUEL LOPEZ CHAVEZ,

Defendant and Appellant.

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This appeal follows the remand in People v. Chavez (H022163), in which this court ordered the trial court to determine if defendant Miguel Lopez Chavez had suffered prejudice when the trial court did not inform him of the immigration consequences of his guilty plea. The trial court found that defendant had not shown prejudice and reinstated the judgment of conviction. We find no error and affirm.

I. Statement of the Case[1]

In August 1995, defendant was charged with burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496.1).[2] On September 7, 1995, defendant pleaded guilty to burglary on condition that he receive felony probation. The trial court did not inform him of the immigration consequences of his plea. On October 11, 1995, the trial court suspended imposition of sentence and placed defendant on probation on several conditions, including that he serve 180 days in county jail. Defendant was convicted of drug and theft offenses the following year. Based on that case, he later admitted a probation violation. On October 24, 1996, the trial court revoked defendant's probation and sentenced him to two years in prison.

On April 4, 2000, defendant filed a motion to vacate the judgment pursuant to section 1016.5.[3] The trial court denied the motion. Following defendant's appeal, this court reversed the judgment and remanded the matter to the trial court for a hearing to determine prejudice pursuant to People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183.

Following a hearing, the trial court found that defendant had not been prejudiced by the failure to inform him of the immigration consequences of his plea and reinstated the judgment.

II. Discussion

Defendant contends that the trial court abused its discretion in denying his motion to vacate the judgment.

When the trial court fails to give the immigration advisements required by section 1016.5, a defendant may bring a motion to vacate the judgment. (People v. Totari (2002) 28 Cal.4th 876, 879 (Totari).) In order to prevail on this motion, a defendant must establish: â€