P. v. Araiza

Filed 5/28/08 P. v. Araiza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Robert Quall, Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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In March 2006, appellant Alfonso Araiza, pursuant to a plea agreement, pled no contest to unlawful sexual intercourse with a person under the age of 18 (Pen. Code,  261.5, subd. (c)).^[1] In that same proceeding, the court placed appellant on three years probation, one of the terms of which was that he serve six months in county jail.

In September 2006, appellant moved to vacate the judgment on the grounds that he was not adequately advised of the immigration consequences of the judgment pursuant to section 1016.5.^[2]The court denied the motion, and the instant appeal followed. The court granted appellants request for a certificate of probable cause ( 1237.5).

On appeal, appellant contends the court erred in denying appellants section 1016.5-based motion to vacate the judgment. We will affirm.

PROCEDURAL BACKGROUND

On March 22, 2006,^[3]appellant executed an ADVISEMENT OF RIGHTS, WAIVER, AND PLEA FORM FOR FELONIES (plea waiver form), a printed form consisting largely of numbered statements, each of which is followed by a space to be initialed by the person executing the form to indicate adoption of the statement. Appellant initialed the following statement: I understand that if I am not a citizen, my guilty or no contest plea will result in my deportation (removal), exclusion from admission to the United States, and denial of naturalization. Following the last numbered statement of the plea waiver form, there appears directly above appellants signature the following statement: I have personally initialed the above items. I have discussed all of the above with my attorney and my attorney has answered all of the questions I have about this plea.

On the last page of the plea waiver form is a statement executed by appellants trial counsel one week later on March 29 which includes the following: I am the attorney of record for the defendant. I have reviewed this form with my client. I have explained each of the defendants rights to the defendant and answered all of the defendants questions with regard to this plea. I have also explained the consequences of this plea .

Also on March 29, prior to accepting appellants plea, the following exchange took place:

THE COURT: [] Okay. Mr. Araiza, I have a plea form here in front of me. Have you signed it?

THE DEFENDANT: Yes, I have.

THE COURT: Have you signed and dated and initialed it?

THE DEFENDANT: Yes, I have.

THE COURT: Do you have any questions about it?

THE DEFENDANT: No, I dont.

At no point did the court orally deliver the admonition set forth in section 1016.5.

In his declaration filed September 8 in support of his motion to vacate the judgment appellant averred as follows: 1. When I entered my plea on March 29, 2006, I was not informed of the immigration consequences of my plea. If I had been aware of the consequences I would not have plead [sic] to a crime involving burglary and unlawful sex with a minor rendering me deportable. [] 2. Before entering my plea, my attorney did not explain any of the immigration consequences. All I recall is that he told me he had worked out a deal and to agree. I then signed the change of plea form. [][] h. At the time of pleading I did not know that I could have plea-bargained for some other disposition, such as (P.C. 246), false imprisonment. I would have gladly paid a higher fine. Anything would have been better than pleading to a crime that would render me deportable.

Appellants trial counsel averred in his declaration filed in support of appellants motion to vacate the judgment as follows: Appellants conviction of violating section 261.5 makes [appellant] deportable under the federal immigration laws. The immigration consequences of appellants plea, viz. [d]eportation and exclusion, are not theoretical; they are real. Appellant is presently undergoing removal (deportation), proceedings, and he will be deported.

DISCUSSION

The People do not dispute that the court failed to orally advise appellant of the immigration consequences of appellants plea pursuant to section 1016.5. The People argue, however, that appellants execution of the plea waiver form, which contained the section 1016.5 advisements, established compliance with section 1016.5. The People rely, in part, on this courts decision in People v. Ramirez (1999) 71 Cal.App.4th 519 (Ramirez).

In that case, this court concluded section 1016.5 does not require a trial court to orally advise a defendant of the possible immigration consequences of a guilty plea, and the written change of plea form signed by the defendant satisfied the section 1016.5 requirements. (Ramirez, supra, 71 Cal.App.4th at pp. 521-523.) Ramirez noted, there is no language [in section 1016.5] which states the advisements must be verbal, only that they must appear on the record and must be given by the court. ( Id. at p. 521.) Citing In re Ibarra (1983) 34 Cal.3d 277, it noted the Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court. [Citation.] (Ramirez, supra, at p. 521.) Although the court in In re Ibarra expressly addressed the constitutionally-mandated advisements required under Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, Ramirez concluded its reasoning was equally applicable to legislatively-mandated advisements. (Ramirez, supra, at pp. 521-522.)

But Ramirez also stated as follows: As the Third Appellate District noted in People v. Quesada (1991) 230 Cal.App.3d 525, the legislative purpose of section 1016.5 is to ensure a defendant is advised of the immigration consequences of his plea and given an opportunity to consider them. So long as the advisements are given, the language of the advisements appears in the record for appellate consideration of their adequacy, and the trial court satisfies itself that the defendant understood the advisements and had an opportunity to discuss the consequences with counsel, the legislative purpose of section 1016.5 is met. [Citation.] We agree with the analysis in Quesada. (Ramirez, supra, 71 Cal.App.4th at p. 522, italics added.)

Appellant, relying on the principle set forth in the italicized portion of the passage quoted in the preceding paragraph, argues that there was no compliance with section 1016.5 because the court, although it asked appellant if he had signed, dated and initialed the plea waiver form, did not inquire of appellant on the record as to whether appellant understood the adverse immigration consequences of his plea and thus the court did not satisfy itself that appellant understood those advisements. However, assuming for the sake of argument that the court failed to comply with section 1016.5, appellants claim fails because, as we explain below, appellant has not established he was prejudiced by this failure.

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. Totari (2002) 28 Cal.4th 876, 884.) We review the courts order denying a section 1016.5 motion to withdraw a guilty plea for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).)

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. (People v. Totari, supra, 28 Cal.4th at p. 884.) This question is a factual one. (Zamudio, supra, 23 Cal.4th at p. 210.) Accordingly, on review we apply the substantial evidence rule. (People v. Quesada, supra, 230 Cal.App.3d at p. 533.) Under this rule, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578.) Rather, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. If the circumstances reasonably justify the trial courts findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Quesada, supra, 230 Cal.App.3d at p. 533.)

Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice . (People v. Totari, supra, 28 Cal.4th at p. 884.)

Appellant contends he was prejudiced by the courts failure to comply with section 1016.5 because, as he also argued below, the offense of false imprisonment would not have rendered him deportable, a factual basis existed for that offense, he was willing to plead no contest to that offense and [n]othing in the record indicates the prosecution would have been unwilling to enter into a plea agreement under which appellant pled no contest to that offense rather than the instant offense. Under the circumstances, appellant argues, it was reasonably probable that had appellant been properly admonished, he would have been able to have his counsel fashion an alternative plea bargain that did not carry such devastating collateral consequences. There is no merit to this contention.

As indicated above, on March 22 appellant executed the plea waiver form in which he acknowledged the immigration consequences of his no contest plea, and on March 29 appellants trial counsel averred that he had explained to appellant the consequences of such a plea. As appellant does not dispute, from these facts it is reasonably inferable that on March 22 appellant understood the consequences of his plea. And the court reasonably could have concluded further that appellant was still aware of these consequences one week later when he entered his plea, and that therefore it was not reasonably probable that appellant would not have pleaded no contest had the court, at the time appellant entered his plea, inquired further of appellant and satisfied itself that appellant understood the immigration consequences of his plea. Thus, substantial evidence supports the denial of appellants motion to vacate the judgment.

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Gomes, J., and Kane, J.

^[1] All statutory references are to the Penal Code.

^[2] Section 1016.5 provides, in relevant part: (a) 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: [] 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.

^[3] Further references to dates of events are to dates in 2006.