P. v. Melgar
Filed 7/13/12
P. v. Melgar CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
RENE WILFREDO ARIAS
MELGAR,
Defendant and Appellant.
F063206
(Super. Ct. No. MCR033616A)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of
County. Mitchell C. Rigby, Judge.
Eduardo
Paredes, 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, Lewis A.
Martinez, and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
In April
2010, appellant, Rene Wilfredo Arias Melgar, pursuant to a plea agreement, pled
no contest to possession of
methamphetamine for purposes of sale, in violation of Health and Safety
Code section 11378 (section 11378). In
June 2010, the court placed appellant on five years’ probation. More than one year later, on August 3, 2011,
appellant filed a notice of motion to vacate his conviction pursuant to Penal
Code section 1016.5 (section 1016.5)
adequately inform him of the immigration consequences of his plea. At a hearing on August 24, 2011, the court
denied the motion. The instant appeal
followed. Appellant requested that the
court issue a certificate of probable
cause. The court granted that
request.
Appellant’s
sole contention on appeal is that the
court erred in denying his motion to vacate the judgment. We affirm.
PROCEDURAL BACKGROUND
On April 5,
2010, appellant executed a “DECLARATION REGARDING GUILTY PLEA†in which he
averred, “My attorney has explained … [that] my plea may have the consequence
of my deportation, exclusion from admission to the United States or denial of
naturalization pursuant to the laws of the United States.â€
Later that
day, appellant appeared in court with counsel.
Early in the proceeding, appellant and defense counsel affirmed that
appellant had entered into a plea agreement under which appellant would plead
no contest to the section 11378 violation and would received a grant of
probation. A short time later, the court
advised appellant, inter alia, “If you should not be a United States citizen,
as a result of your plea you could be deported, denied naturalization or
excluded from the country.†Shortly
thereafter, appellant entered his plea.
DISCUSSION
Appellant
argues that the trial court erred in failing to vacate the judgment of
conviction under section 1016.5 because the court that took his plea in 2010
failed to adequately advise him of the immigration consequences of his
plea. Specifically, he contends the
court erred in failing to advise him that under federal law, a plea to
violating section 11378 made his “removal from the United States†not just a
possibility, but a certainty. There is
no merit to this contention.
Section
1016.5(a) provides that prior to acceptance of a plea to any offense more
serious than an infraction, 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 United
States.†(§ 1016.5(a), italics
added.) “The exact
language of the warning given by the court is not
crucial.†(People v. Soriano (1987) 194 Cal.App.3d 1470, 1475.) “[S]ubstantial compliance [with the statutory
advisement] is all that is required, ‘as long as the defendant is specifically
advised of all three separate immigration consequences of his plea.’ [Citation.]â€
(People v. Castro-Vasquez (2007)
148 Cal.App.4th 1240, 1244.)
Section 1016.5(b) provides, as
relevant here: “If … the court fails to
advise the defendant as required by this section and the defendant shows that
conviction of the offense to which defendant pleaded guilty or nolo contendere
may have the consequences for the defendant of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the
laws of the United States, the court, on defendant’s motion, shall vacate the
judgment and permit the defendant to withdraw the plea of guilty or nolo
contendere, and enter a plea of not guilty.â€
We review denial of such a motion under an abuse of discretion
standard. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (
The court that accepted appellant’s
plea did not err by not advising him that exclusion from the country was a
mandatory consequence of his conviction.
Section 1016.5(d) provides, in relevant part: “it is the intent of the Legislature in
enacting this section [that] ... acceptance of a guilty plea or plea of nolo
contendere be preceded by an appropriate warning of the special consequences
for ... a defendant [who is not a citizen of the United States] which
courts advise defendants of the “potential
adverse immigration consequences.†(
identical to that set forth in section 1016.5(a), advised appellant about the
three possible immigration consequences.
Nothing more is required. (
Cal.App.4th 169, 174, fn. 4.)
Appellant bases his claim that the
court had an obligation under section 1016.5 to advise him that his plea would
result in mandatory exclusion from the United States on Padilla v. Kentucky (2010) 559 U.S. __ [130 S.Ct. 1473, 176 L.Ed.2d
284] (Padilla). In that case, Padilla, a native of Honduras,
was charged with transporting marijuana in Kentucky. In considering whether to plead guilty to the
charge, Padilla relied on his attorney’s advice that “he ‘“did not have to
worry about immigration status since he had been in the country so
long.â€â€™â€ (Id. at pp. 1477-1478.)
Contrary to the advice given by his attorney, the United States
government subsequently sought to deport Padilla. (Id.
at p. 1477.) The Kentucky Supreme Court
assumed the truth of Padilla’s allegation that he would not have pled guilty
absent his attorney’s erroneous advice, and held a criminal defendant’s Sixth
Amendment right to the effective assistance of counsel is not implicated by the
attorney’s incorrect advice about collateral consequences of a guilty plea,
such as the immigration consequences of such a plea. (Padilla,
supra, at p. 1478.)
The United States Supreme Court,
however, held “advice regarding deportation is not categorically removed from
the ambit of the Sixth Amendment right
to counsel.†(Padilla, supra, 130 S.Ct.
at p. 1482.) In the portion of the
opinion upon which appellant relies, the high court stated: “When the law is not succinct and
straightforward …, a criminal defense attorney need do no more than advise
a noncitizen client that pending criminal charges may carry a risk of adverse
immigration consequences. But when the
at p. 1483, fn. omitted.)
The duty to which the
of trial counsel under the Sixth Amendment to the United States
Constitution. Padilla does not address the court’s duty to advise of immigration
consequences of a plea under section 1016.5 or on any other basis. Therefore, Padilla does not, in appellant’s formulation, “contemplate an
expansion†of the matters on which a court must advise a defendant under
section 1016.5(a). (People v. Jennings (2010) 50 Cal.4th 616, 684 [cases are not
authority for propositions not considered therein].) Appellant asks that this court, in effect,
rewrite the statute. We will not do so. The trial court did not abuse its discretion
in denying appellant’s motion to vacate the judgment pursuant to section
1016.5(b).
DISPOSITION
The judgment is affirmed.
name="_ftn1" title="">* Before Cornell, Acting P.J.,
Poochigian, J., and Franson, J.
name="_ftn2" title="">[1] We
generally refer to subdivisions of section 1016.5 in abbreviated form, e.g.,
sections 1016.5(a), 1016.5(b), and 1016.5(d).
