P. v. Davila
Filed 8/15/08 P. v. Davila CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO DAVILA, Defendant and Appellant. | B204570 (Los Angeles County Super. Ct. No. A964854) |
APPEAL from an order of the Superior Court of Los Angeles County. David M. Horwitz, Judge. Affirmed.
Law Offices of Brian D. Lerner, Brian D. Lerner and Christopher A. Reed for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
______________
Appellant Francisco Davila appeals from an order denying his motion to vacate judgment and withdraw his plea pursuant to Penal Code section 1016.5,[1]contending that his plea was not knowing and voluntary and that the advisements given pursuant to section 1016.5 are inadequate. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 9, 1988, appellant pled guilty to a felony complaint charging him with the sale of cocaine in violation of Health and Safety Code section 11352. According to the probation report, appellant had been selling rock cocaine for one month prior to his arrest solely to support his own use of cocaine. Prior to the change in plea, appellant was advised: A plea to this offense will result in your being deported from the United States, denied citizenship from the United States and a right to reenter the United States if you leave the United States. This is on the condition of fact that you may not be a United States citizen. Appellant was then placed on three years probation conditioned on 180 days in county jail and completion of a drug treatment plan, among other things.
On December 5, 2002, after completing his probationary term, appellant petitioned for and was granted relief pursuant to section 1203.4.[2]In July 2007, appellant filed a motion to vacate the judgment and withdraw his guilty plea on the basis of improper advisement of immigration consequences as required by section 1016.5, subdivision (a). The trial court denied appellants motion on September 10, 2007. This appeal followed.
DISCUSSION
The trial court did not abuse its discretion in denying the motion to vacate the judgment
Appellant contends that his plea was not knowing and voluntary because he did not understand the advisements regarding the consequences of the plea on his immigration status and that the advisements set forth in section 1016.5 are incorrect and inadequate. We conclude that the trial court did not abuse its discretion in denying appellants motion to vacate his conviction.
Section 1016.5, subdivision (a) provides that prior to entering a plea of guilty the defendant must be advised: 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.
Subdivision (b) of section 1016.5 provides that if the advisement is not given and the defendant shows that conviction of the offense to which he pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization, on the defendants motion, the court shall vacate the judgment and permit the defendant to withdraw the plea of guilty.
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. ([People v. Superior Court (Zamudio) (2000)] 23 Cal.4th 183 at pp. 192, 199-200; People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) 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. (Zamudio, supra, 23 Cal.4th 183 at pp. 209-210.) (People v. Totari (2002) 28 Cal.4th 876, 884.) We review the trial courts ruling denying the motion to vacate judgment for abuse of discretion. (Zamudio, at p. 192.)
Here, appellant fails to show that he was not given the correct advisements by the trial court. On the contrary, the record shows that appellant was advised that a guilty plea will result in your being deported from the United States, denied citizenship from the United States and a right to reenter the United States if you leave the United States. This is on the condition of fact that you may not be a United States citizen. (Italics added.)
Nevertheless, appellant contends on appeal that the advisements set forth in section 1016.5, subdivision (a) are inadequate and misleading because the words may and or may lead a defendant to believe that he or she may be subject to only one of the consequences rather than all three. He urges that the statute should be amended to replace the word may with will and the word or with the word and. He argues that the advisements set forth in section 1016.5 may have been adequate when the statute was enacted in 1978. But, he contends, the advisements are no longer adequate because the definition of an aggravated felony was dramatically broadened by the Immigration Reform and the Immigrant Responsibility Act of 1996. He complains that appellant became removable from the United States, permanently inadmissible to the United States, and permanently barred from establishing good moral character for naturalization purposes because he was convicted of an aggravated felony for immigration purposes under the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(B)). However, the advisement given to appellant did not suffer from the alleged deficiency that he claims exists in section 1016.5, subdivision (a) because the words will and and, the words which appellant now claims should have been used, were in fact used. At oral argument, appellant also urged the trial courts admonition to appellant that he would be denied the right to reenter the United States if he left the United States, was an improper advisement because the exact language of section 1016.5, subdivision (a), which includes as a consequence, exclusion from admission to the United States, was not used. As noted in Zamudio, supra, 23 Cal.4th at page 207, however, Courts of Appeal have held that use of the exact language of the statute is not crucial. (People v. Soriano (1987) 194 Cal.App.3d 1470, 1475; People v. Valenciano (1985) 165 Cal.App.3d 604, 605-606 [denial of the right to reenter is an adequate advisement].) We therefore conclude that appellant has not shown that he was given incorrect advisements.
Next, appellant fails to support his further contention that he did not fully understand the immigration consequences of his plea with any citations to the record. Rather, our review of the reporters transcript shows that after appellant was advised of the consequences of his plea on his immigration status, appellant, assisted by an interpreter, responded that he understood the consequences of his plea.
We conclude that the trial court did not abuse its discretion in denying appellants motion to vacate the plea.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
______________________________, P.J.
BOREN
______________________________, J.
ASHMANN-GERST
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Section 1203.4, subdivision (a) provides that where a defendant has fulfilled the conditions of probation, the defendant shall be permitted by the trial court to withdraw his guilty plea and enter a plea of not guilty, and the trial court shall dismiss the information and the defendant shall be released from all penalties except as provided in Vehicle Code section 13555. That section also states: However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. ( 1203.4, subd. (a).)