P. v. Sharma
Filed 8/6/12 P. v. Sharma CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
RITNESH PRASAD SHARMA,
Defendant and Appellant.
B237072
(Los Angeles
County
Super. Ct.
No. KA089637)
APPEAL
from an order of the Superior Court
of
County, Jack P. Hunt, Judge. Affirmed.
Law
Offices of Brian D. Lerner and Brian D. Lerner for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Steven D.
Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Ritnesh
Prasad Sharma appeals from the denial of a motion to set aside a negotiated
plea of no contest to first degree
burglary on the ground he was not properly advised of the immigration
consequences of his plea. We affirm the
trial court’s post-judgment order denying the motion.
BACKGROUND
On June 14,
2010, appearing with
private counsel, Sharma pleaded no contest to first degree burglary. Before entering his plea, Sharma was
informed of his constitutional rights and the consequences of his plea orally
and in writing. The trial court
specifically advised Sharma, “Among the consequences outlined on this plea form
are immigration consequences. They may
or may not apply to you depending upon your citizen status in this country. In the event you are not a legal citizen of
the United States, your plea today will
subject you to deportation from this country, exclude you from reentry into the
United States, and deny you
naturalization or amnesty pursuant to the law of the United States. Do you understand that as well” Sharma acknowledged that he understood.
In accordance with the
Sharma to the lower term of two years in state prison for burglary, and granted
the People’s motion to dismiss the remaining two counts in the
On April 15,
2011, an
Immigration Judge found Sharma removable from the United States based upon his burglary conviction,
a decision that was later confirmed by the Board of Immigration Appeals.
Having retained new counsel, Sharma
filed a “motion to vacate coram nobis[
or reduce sentence to 364 days” on September
15, 2011.
constitutionally inadequate advice from his retained counsel at the time, and
the advisements required by Penal Code
section 1016.5 did not precede entry of the plea.
he was a citizen of Fiji, but had been a lawful
permanent resident of the United States since 1984. He and his son were living with his parents.
The trial court noted Sharma had been
given the advisements required by section 1016.5 and summarily denied the
motion. Sharma filed a timely notice of
appeal.
Sharma contends his plea was not
knowing and voluntary because the advisements required by that section did not
reflect the true immigration consequences and defense counsel failed to advise
him of the section 1016.5 immigration consequences of his plea.
A defendant’s right to an
advisement about immigration consequences is statutory, not
constitutional. (People v. Superior
Court (Zamudio) (2000) 23 Cal.4th 183, 194.) The underlying
purpose of section 1016.5 is to ensure the defendant has actual knowledge of
the possible adverse immigration consequences of a guilty or no contest plea
and has had an opportunity to make an intelligent choice to plead guilty or no
contest. (Id. at pp. 193-194; People
v. Gutierrez (2003) 106 Cal.App.4th 169, 173.)
“‘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. [Citations.]’” (People v. Castro-Vasquez (2007)
148 Cal.App.4th 1240, 1244.) We
review the denial of a motion to vacate under section
1016.5 for abuse of discretion. (Zamudio,
supra, 23 Cal.4th at p. 192.)
On appeal, Sharma does not
dispute he was advised by the trial court of the immigration consequences as
required by section 1016.5. Instead,
Sharma contends, despite this advisement, he did not understand the immigration
consequences of his plea and, had he understood, he would have sought a
different plea bargain or would have taken the case to trial. Sharma asserts he pleaded no contest to an
offense that constitutes an “aggravated felony” under federal immigration laws,
and was therefore subject to each of the three immigration consequences
mentioned in the section 1016.5 advisements, namely deportation, exclusion from
admission and denial of naturalization.
worded, leads a defendant, who is an alien, to believe that a no contest plea
would subject him or her to only one of these immigration consequences,
presumably because of the words “may have” and “or.” Sharma argues that because an alien convicted
of an aggravated felony is subject to all three consequences, the section
1016.5 advisement misrepresents the actual immigration consequences of a no
contest plea. Sharma urges that the
statute be amended to read, “A conviction which constitutes an aggravated
felony under the immigration laws of the United States will have the
consequences of deportation, exclusion from admission to the United States, and
denial of naturalization pursuant to the laws of the United States.”
Sharma’s claim he did not enter a
knowing and voluntary plea because the section 1016.5 advisement did not
reflect his true immigration consequences is belied by the record. Sharma ignores the fact that the section
1016.5 advisement as orally given by the trial court and as written on the
“Felony Advisement of Rights, Waiver, and Plea Form” informed Sharma that his
plea “will” subject him to all three immigration consequences, as stated in the
conjunctive. Sharma acknowledged both
orally and in writing that he understood the section 1016.5 advisement conveyed
to him. Thus, the section 1016.5
advisement conveyed to Sharma went beyond what the statute requires, by making
Sharma fully aware of the actual immigration consequences of his no contest
plea.
Because Sharma was given a
proper section 1016.5 advisement, his additional claim of ineffective
assistance of counsel based on his attorney’s purported failure to properly
advise him “is not a wrong encompassed by the statute.” (People
v. Kim (2009) 45 Cal.4th 1078, 1107, fn. 20; see People v. Chien (2008) 159 Cal.App.4th 1283, 1285.) The proper vehicle is a petition for writ of
habeas corpus. (In re Resendiz (2001) 25 Cal.4th 230, 237, fn. 2.)
DISPOSITION
The order
is affirmed.
WOODS,
Acting P. J.
We concur:
ZELON,
J.
JACKSON,
J.
Citing
People v. Placencia (2011) 194
Cal.App.4th 489, the People argue the appeal should be dismissed for lack of
certificate of probable cause. The issue
of whether a certificate of probable cause is required for a defendant to
appeal from a post-judgment order denying a motion to vacate a guilty plea for
failure to advise of section 1016.5 immigration consequences is currently
before the California Supreme Court. (
429, review granted Feb. 12, 2012, S199339.)
At
the plea hearing, among the rights and consequences that Sharma initialed he
understood on the “Felony Advisement of Rights, Waiver, and Plea Form” was the
paragraph entitled “Immigration Consequences,” which stated, “I understand that
if I am not a citizen of the United States, I must expect my plea of guilty or
no contest will result in my deportation, exclusion from admission or reentry
to the United States, and denial of naturalization and amnesty.”
