P. v. Quintero

Filed 8/26/08 P. v. Quintero CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from an order of the Superior Court of Los Angeles County.

Bradford L. Andrews, Judge. Affirmed.

Nicolas J. Estrada for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

In 1996, appellant Filiberto Quintero pled no contest to one count of possession of marijuana for sale in violation of Health and Safety Code section 11359. He was placed on three years probation on the condition he serve 180 days in county jail. In 2007, appellant filed a motion pursuant to Penal Code section 1016.5[1]to vacate his plea. Appellant appeals from the denial of that motion. We affirm the trial court's order.

Facts

Appellant has lived legally in the United States for more than 26 years. Recently, due to new immigration laws, federal authorities began proceedings to deport him on the basis of his 1996 conviction for violating Health and Safety Code section 11359. In June 2007, he filed a motion to vacate his conviction on the ground that he had not been warned of the immigration consequences of a no contest plea.

The trial court elected not to have an evidentiary hearing on the motion. The trial court stated: "You have room for a declaration. There is no declaration supporting it. The motion is denied." When appellant's counsel pointed out that both he and appellant had provided declarations, the court replied: "The declaration is insufficient. The motion is denied."

Discussion

Appellant contends that the trial court abused its discretion in denying his motion to vacate his no contest plea pursuant to section 1016.5. We see no grounds for reversal of the trial court's order.

A trial court's order denying a motion to vacate under section 1016.5 is an appealable order reviewed for an abuse of discretion. (People v. Totari (2002) 28 Cal.4th 876, 887; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)

Respondent contends that appellant failed to show due diligence in bringing the motion and so we should uphold the trial court's denial of the motion on that basis.

Assuming that a defendant is required to show due diligence to obtain relief under section 1016.5,[2]the adequacy of a defendant's showing is a factual question which is better resolved by a trial court. Here, there were statements in appellant's motion and declaration which could support a finding of due diligence, but there is nothing to show that the trial court considered whether appellant had exercised due diligence or concluded that he had not. We need not reach this issue, since, as we discuss below, we have found that appellant was properly advised of the immigration consequences of his plea.

Section 1016.5, subdivision (a) provides: "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."

Although section 1016.5 sets forth a specific advisement to be given to the defendant, the use of the exact language of the statute is not required. "[O]nly substantial compliance is required under section 1016.5 as long as the defendant is specifically advised of all three separate immigration consequences of his plea." (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174.)

Here, the trial court which took appellant's plea did not use the express language of section 1016.5, subdivision (a) to advise appellant of the immigration consequences of his plea. Instead, the court gave the following advisement: "If you're not a citizen of this Country, pleading to this charge could prevent you from becoming a citizen and get you deported. [] If you're here lawfully, but not as a citizen, that right could be taken from you. [] You could be denied a right to reenter the Country lawfully in the future."

The trial court correctly explained the concepts of deportation, exclusion from admission and denial of naturalization to appellant and so substantially complied with section 1016.5. As our Supreme Court has explained: "Section 1016.5 incorporates several distinct terms of art from immigration law. 'Deportation is the removal or sending back of an alien to the country from which he or she has come . . . .' (Roseman, The Alien and the Guilty Plea: Caveat to the Defense (1984) 12 W. St. U. L.Rev. 155, 163.) 'Exclusion' is 'being barred from entry to the United States.' (Id. at p. 165, fn. omitted.) 'Naturalization' is a process by which an eligible alien, through petition to appropriate authorities, can become a citizen of the United States. (Id. at pp. 167-168.)" (People v. Superior Court (Zamudio), supra, 23 Cal.4th at pp. 207-208.)

Appellant contends that the trial court's failure to use the term "exclusion" was confusing and misleading. We cannot agree. As explained in Zamudio, exclusion means "'being barred from entry to the United States.'" (Id. at p. 207.) The court explained that appellant could be deported and "denied a right to reenter the Country lawfully in the future." The trial court's advisement was, if anything, clearer than the advisement in section 1016.5. (See People v. Gutierrez, supra, 106 Cal.App.4th at p. 174, fn. 4 ["the phrase 'denied re-entry' is the legal equivalent of 'exclusion of admission'; moreover, linguistically, 'denied re-entry' is a more precise statement of the consequence."].)[3]

To the extent that appellant contends that the trial court denied him due process by failing to properly consider the declarations in support of his motion or to hold an evidentiary hearing, we would find any denial harmless, since the transcript of the plea proceedings show that appellant was properly advised of the immigration consequences of his plea.

Disposition

The trial court's order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] There is a split of authority in the Courts of Appeal as to whether a defendant has the burden of showing when he first had reason to believe that he was not properly advised of the immigration consequences of his plea. (People v. Carty (2003) 110 Cal.App.4th 1518, 1528-1529 [absent evidence that defendant long ago had cause to question accuracy of trial court's advisements, defendant is not barred from bringing motion; People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207 [defendant has burden of showing reasonable diligence].)

[3] To the extent that appellant is attempting to contend, as the appellant did in Gutierrez, that there are actually three components to exclusion under federal law: reentry, rescission of resident status, and ineligibility to adjust one's status, that claim fails. Like the appellant in Gutierrez, appellant has failed to cite any legal authority for that proposition. Further, unlike the trial court in Gutierrez, the court in this case did advise appellant that he could lose his legal residency status and be denied citizenship in the future, as well as be barred from re-entry.