P. v. Denys
Filed 5/23/13 P. v. Denys CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOAQUIN GUSTAVO DENYS,
Defendant and
Appellant.
H038212
(Santa Clara
County
Super. Ct.
Nos. C9929139, C9928517)
Defendant
Joaquin Gustavo Denys appeals from the trial court’s order denying his
two counts of possession for sale of
marijuana (Health & Saf. Code, § 11359) and one count of
advised of the immigration consequences of his plea pursuant to Penal Code
section 1016.5.
title="">[1] For the reasons set forth below, we find that
the trial court that took defendant’s plea adequately and substantially
complied with the requirements of section 1016.5, and we affirm the
judgment.
and Procedural Background
Defendant
was born in El Salvador. When defendant was a child, his father worked
for the El Salvadoran government transporting soldiers to and from battle
during the government’s war against the guerillas. In May 1981, defendant and his family fled to
Mexico due to
the ongoing violence. The family briefly
returned to El Salvador in October 1981.
In December 1981, defendant and his family lawfully immigrated from El
Salvador to the United States. Defendant
has a daughter who is a citizen of the United States by birth. His mother is a naturalized citizen, and his
father remains a lawful permanent resident.
Defendant has returned to El Salvador for visits, each of which have not
lasted more than 15 days.
On May 4,
1999, two San Jose Police Department officers stopped a vehicle driven by
defendant for failing to come to a complete stop at a stop sign. The officers discovered that defendant’s
passenger was on probation for narcotics transportation, and conducted a search
of the vehicle after defendant gave his consent. Defendant then gave officers consent to
search his person, and was discovered to be in possession of marijuana. Defendant was arrested and transported to the
San Jose preprocessing center where he was strip searched. There, officers found a white bag containing
methamphetamine on defendant.
On May 12,
1999, the officers obtained a search
warrant for the residence to which the vehicle was registered. At the residence, officers found marijuana in
the master bedroom where defendant resided, a pay-owe sheet, and a total of
$4,100 in cash on defendant and in two locations in the master bedroom. The police report indicated that defendant,
out of his own volition, told officers that the marijuana belonged to him.
Defendant
entered a plea of no contest to two counts of possession for sale of marijuana
(Health & Saf. Code, § 11359) and a count of possession for sale of
methamphetamine (id. § 11378) on June
17, 1999.
that he was out on bail when he committed the marijuana possession crime. In a declaration in support of his motion to
withdraw, defendant stated that his trial attorney failed to advise him of any
potential immigration consequences, and he was never informed that federal law
would likely make it mandatory that a conviction for the pleaded offenses would
result in deportation.
name="_ftnref3" title="">[3] When the trial court took his plea, it stated
on the record that: “Turning to the
consequences of your plea. You are advised
that if you are not a citizen, conviction of these offenses may have the
consequences of deportation, exclusion from admission or denial of
naturalization.†Defendant then
acknowledged that he read and understood English, that there was nothing the trial
court said that he did not understand, and that he did not have any further
questions.
The trial
court then placed defendant on probation for a period of three years subject to
various terms and conditions, including that he serve nine months in county
jail.
In 2008,
upon returning from a trip to Mexico, defendant was pulled aside by customs
immigration officials and was advised he had a court date for deportation
proceedings stemming from his 1999 convictions.
In June 2008, defendant received a written notice of removal proceedings
in federal immigration court. Defendant
hired an attorney, and thereafter applied for asylum and withholding from
removal.
attorney, defendant was ordered removed from the country in 2010. Defendant subsequently appealed the ruling of
the immigration court.
name="_ftnref5" title="">[5]
In February
2012, defendant filed a motion to withdraw his 1999 plea pursuant to section
1016.5. Defendant argued that the court
taking the plea failed to advise him of all the immigration consequences as
provided by section 1016.5 since it failed to specifically state that the
consequences of deportation, exclusion from admission, and denial of naturalization,
were from the United States.
Furthermore, defendant argues that there was more than a remote
possibility of adverse immigration consequences as a result of the plea, and
that he was prejudiced by the court’s failure to provide for a complete
advisement.
The trial
court held a hearing on the matter on February 21, 2012. After defendant and the People made their
respective arguments, the court denied defendant’s motion to withdraw his plea. In coming to its conclusion, the court stated
defendant “argued that a lay person would not understand when being told that
his or her conduct or choice could result in deportation that it means from
this country,†and that defendant was “suggesting that if that person is told
that [they’ll] be denied citizenship, that they wouldn’t understand it means in
this country, or that told they would not be allowed to reenter, that it means
from this country.†The court determined
that it could not come to that conclusion, “even more so in the case of someone
[like defendant] who has [an] extensive international history.†The court then reasoned that it could not
“find that the [trial court that took defendant’s plea] failed to give
[defendant] the necessary and proper advisement simply because of the omission
of the reference to the United States.â€
Defendant
filed a timely notice of appeal over the trial court’s judgment on April 18,
2012, after obtaining a certificate of probable cause.
Defendant’s
main contentions on appeal are that the trial court that took his plea in 1999
failed to satisfy the requirements of section 1016.5, and that the trial court
in 2012 that reviewed and denied his motion to vacate his judgment and withdraw
his plea abused its discretion.
Standard of Review
A motion to
vacate a judgment is an appealable order.
(People v. Dubon (2001) 90
Cal.App.4th 944, 950.) We review the
trial court’s order denying defendant’s motion to vacate judgment for abuse of
discretion. (People v. Superior Court (Zamudio)
Substantially Complied with Section 1016.5
Defendant
argues that the trial court that took his plea failed to comport with the
requirements of section 1016.5. As
described ante, the trial court in
1999 informed defendant that “[y]ou are advised that if you are not a citizen,
conviction of these offenses may have the consequences of deportation,
exclusion from admission or denial of naturalization.†This advisement deviates from the language of
section 1016.5.
Section
1016.5 provides that: “(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.â€
given by the court and the language in section 1016.5 is that here the court
failed to specifically reference the United States in its recitation. Defendant takes issue with this omission, and
argues that exclusion of the phrases “United States†and “pursuant to the laws
of the United States†renders the trial court’s advisement inadequate. We disagree with this assessment.
The
California Supreme Court has implied that compliance with section 1016.5 does
not mandate a verbatim recitation of the statute, so long as substantial
compliance is achieved and the defendant in question is advised of all three
possible immigration consequences as set forth in section 1016.5. (Zamudio,
supra, 23 Cal.4th at p. 208.) In Zamudio,
the California Supreme Court contemplated a situation where the defendant was
not advised of the possibility of “exclusion from admission to the United
States†(§ 1016.5, subd. (a)), but was advised of the two other consequences of
immigration, deportation and denial of naturalization. (Zamudio,
supra, at p. 207.) In that situation, the Supreme Court
recognized that if defendant’s circumstances, at the time of his original plea,
did not actually allow for the possibility of the consequence of exclusion from
the United States, “the advisements he received concerning deportation and
naturalization would have been in substantial compliance with the requirements
of section 1016.5.†(
Other
appellate courts have similarly upheld that trial courts need only
substantially comply with the required advisement under section 1016.5. In People
v. Gutierrez (2003) 106 Cal.App.4th 169 (Gutierrez), the prosecutor informed Gutierrez that “ ‘If you are
not a United States citizen, you will be deported from the United States,
denied re-entry and denied amnesty or naturalization. [¶] Mr. Gutierrez, do you
understand that?’ [Gutierrez] answered, ‘Yes.’ †(Id.
at p. 171.) Gutierrez appealed, in part
arguing that the prosecutor’s advisement failed to accurately track the
language of section 1016.5, as the prosecutor utilized the phrase “denied
re-entry†instead of the phrase “ ‘exclusion from admission.’ †(Gutierrez,
this argument, reiterating that “only 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.â€
(Id. at p. 174.) Gutierrez “was expressly told that one of the
immigration consequences of his conviction was that he would be denied reentry
into the United States; in other words, under the statute, he would be excluded
from the United States. The trial court,
thus, substantially complied with the statute, and, hence, committed no error
in the manner in which it took appellant’s plea.†(Ibid.)
We find
that the advisement given to defendant in 1999 was in substantial compliance
with section 1016.5. Defendant was
specifically informed of all three immigration consequences of his plea if he
was not a citizen, including the possibility of deportation, exclusion from
admission to the United States, and denial of naturalization pursuant to the
laws of the
States. The trial court’s main
deviance from the statutory language in section 1016.5 is that it failed to
specifically state that the consequences were “exclusion from admission
naturalization pursuant to the laws of
the United States.†However, we do
not believe the lack of reference to the “United States†in the trial court’s
statement rendered the advisement unacceptably vague. The advisement given to the defendant in
reference to the United States, yet was still determined to be in substantial
compliance. (Gutierrez, supra, 106
Cal.App.4th at p. 171.)
In the situation presented here,
defendant was informed of all three immigration consequences required under
section 1016.5. Furthermore, it is
implied from the trial court’s advisement that it was referencing the United
States. A trial court, located with the
United States, would not reasonably admonish a defendant that a possible
immigration consequence of a conviction in the United States would be exclusion
from admission from country that is not
the United States, and that another consequence may be denial of naturalization
pursuant to the laws of another country.
We find no merit to defendant’s contention that the trial court’s
advisement prior to his plea is similar to the defective advisement
contemplated in Zamudio. In Zamudio,
the defendant was not advised of the possibility of exclusion. (Zamudio,
supra, 23 Cal.4th at pp.
207-208.) Here, defendant was advised of
all three consequences. While the
language of the advisement was not a verbatim recitation of section 1016.5,
subdivision (a), the advisement substantially complied with the requirements of
the statute.
We note
that there were some deficiencies with the trial court’s reasoning behind its
denial of defendant’s motion to vacate.
First, the trial court noted that since defendant has an “international
history,†it is expected that defendant, his family, or others similarly
situated, would be “uniquely aware of the terms deportation, citizenship and
reentry.†The fact that a defendant may
be more well-informed about potential immigration consequences of a plea does
not negate the court’s duties under section 1016.5. Second, the trial court reasoned that the
advisement’s sufficiency was bolstered by the fact that defendant, after being
given the advisement, was asked by the trial court if he had any questions, to
which he answered in the negative, and was also asked if he understood the
advisements, to which he answered in the affirmative. If the trial court’s advisement did in fact
lack compliance with section 1016.5, defendant’s answers that he understood the
advisement and that he had no further questions about it would not cure the
defects.
However,
the deficiencies in the trial court’s rationale for denying defendant’s motion
to vacate do not undermine the validity of our conclusion that the advisement
sufficiently complied with section 1016.5.
We find that the lack of reference to the United States by the trial
court in 1999 was not fatal to its admonishment. Since we determine that the advisement was
adequate, we need not reach the issue of whether or not defendant demonstrated
prejudice. We therefore conclude there
was no abuse of discretion by the trial court when it denied defendant’s motion
to vacate judgment and withdraw his plea.
The trial
court’s order denying defendant’s motion to vacate judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Further unspecified statutory references are to the Penal Code.
Defendant pleaded no contest in two cases that were ultimately
consolidated. In case No. C9928517,
defendant pleaded nolo contendere to a count of possession for sale of
marijuana (Health & Saf. Code, § 11359) and a count of possession for sale
of methamphetamine (id. §
11378). In case No. C9929139, defendant
pleaded nolo contendere to a count of possession for sale of marijuana (
enhancement that the crime was committed when he was out on bail (§ 12022.1).
