Filed 8/24/18 P. v. Soto CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Defendant appeals from an order denying his motion to withdraw his guilty pleas, and we appointed counsel to represent him. In conducting his analysis of potential appellate issues, appointed counsel informed us in his declaration that he consulted with a staff attorney at Appellate Defenders, Inc. Counsel then filed a brief pursuant to the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel did not argue against defendant, but advised the court he was unable to find any issue to argue on defendant’s behalf. Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.

We have examined the entire record and, like counsel, have not found an arguable issue on appeal. Accordingly, we affirm the postjudgment order.

FACTS

In December 1989, the district attorney filed a complaint alleging defendant had committed two felonies involving his possession for sale of controlled substances, tar heroin and cocaine. In January 1990, defendant, represented by the public defender’s office, entered guilty pleas to both counts. As a part of his entry of these guilty pleas, defendant, with the assistance of a Spanish speaking court interpreter, executed the standard Tahl[1] form, captioned “Guilty Plea in the Superior Court,” which included the following recitation: “I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” Defendant initialed this box, and he signed page two of the form under penalty of perjury. Above defendant’s signature, the printed form read in part: “I have personally initialed each of the above boxes and discussed them with my attorney.” As a consequence of his guilty pleas, defendant was placed on three years of supervised probation and he was required to serve ninety days in the county jail.

In September 2013, defendant moved the trial court to withdraw his guilty pleas, basing his motion on Penal Code section 1016.5. [2] The motion was denied on November 8, 2013. Defendant’s second motion to withdraw his guilty pleas, this time relying on sections 1016.5 and also 1473.7, was denied on February 9, 2018.

DISCUSSION

Following our usual standard of review on appeal, we recite the facts “in the light most favorable to the judgment . . . .” (People v. Johnson (1980) 26 Cal.3d 557, 578.) There are no facts in the record regarding the underlying 1990 offenses because defendant stipulated to a factual basis for his guilty pleas pursuant to People v. West (1970) 3 Cal.3d 595. In any event, the potential issues related to defendant’s current appeal relate only to his 2018 motion to vacate his guilty pleas.

Following the Wende guidelines, we have reviewed counsel’s brief and the entire appellate record, which includes the Tahl form executed by defendant in 1990. The reporter’s transcript for the 1990 hearing has apparently been destroyed pursuant to the Government Coded due to the passage of time.

Appointed counsel has directed our attention to three potential appellate issues: (1) whether the trial court abused its discretion in denying defendant’s 2018 motion to withdraw his 1990 guilty pleas; (2) whether the trial court abused its discretion in failing to specifically address arguments raised in defendant’s supplemental points and authorities related to section 1437.7 in its ruling on defendant’s motion to withdraw his guilty pleas; and (3) whether the trial court erred in its 2018 ruling by applying an incorrect legal standard to defendant’s motion to withdraw his guilty pleas.

The brief record in this case speaks for itself. Although defendant argued to the trial court that he was not properly advised of the potential adverse immigration consequences related to the entry of his guilty pleas, he concedes that the Tahl form he executed with the assistance of the court’s Spanish language interpreter contained the required advisement. It is impossible to reconstruct any colloquy that might have occurred between defendant and the court at the time of the entry of these guilty pleas due to the absence of the reporter’s transcript; nonetheless, the law in this area is well‑established: “Our state Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court.” People v. Ramirez (1999) 71 Cal.App.4th 519, 521. “The advisement need not be in the exact language of section 1016.5 and can be in writing. Substantial compliance is all that is required.” People v. Araujo (2016) 243 Cal.App.4th 759, 762. As was the case in Araujo, there is substantial compliance here. The written advisement received by defendant in 1990 as to the potential consequences of his guilty pleas was adequate.

But even if we were to find that the advisement in this case was inadequate, defendant has failed to bear “the burden of establishing prejudice.” People v. Martinez (2013) 57 Cal.4th 555, 565. ‘“[T]he test generally applicable may be stated as follows: That . . . the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210. Relying on the Zamudio analysis, the Supreme Court, in Martinez, concluded “the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been.” Martinez, supra, 57 Cal.4th at p. 564.

Defendant offered no evidence concerning prejudice to the trial court other than his own written declaration in which he admitted that he had executed the Tahl form but claimed he could “not recall” any conversation with the court or his attorney concerning its contents. He thereafter asserted that his guilty pleas had prejudiced him since he “currently face(d) adverse immigration consequences of removal,” and that, if he had been properly advised, he “would have negotiated an immigration-neutral bargain and, if not, gone to trial.”

To prevail on a motion to withdraw a guilty plea based on defendant’s theory here, “. . . 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 adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement.” People v. Totari (2002) 28 Cal.4th 876, 884.

The Supreme Court has found an argument similar to that made by defendant here insufficient to establish the required showing of prejudice. “Based upon our examination of the entire record, petitioner fails, ultimately, to persuade us that it is reasonably probable he would have forgone the distinctly favorable outcome he obtained by pleading, and instead insisted on proceeding to trial, had trial counsel not misadvised him about the immigration consequences of pleading guilty.” In re Resendiz (2001) 25 Cal.4th 230, 254. So too it is here.

Applying any potentially applicable standard, we find no abuse of discretion by the trial court. Our review of the entire record has not disclosed any issue reasonably arguable on appeal.

DISPOSITION

The postjudgment order is affirmed.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.