P. v. Cao
Defendant Phong Thanh Cao appeals from a postconviction order denying his statutory and nonstatutory motions to vacate his guilty plea to two counts of assault with a firearm and one count of obliterating the firearm’s identification, and his admission of enhancements for use of a firearm. This plea was entered on November 30, 2001, more than 10 years ago. Defendant moved to vacate his plea on August 22, 2011.
The basis of Cao’s motions was ineffective assistance of counsel. Cao, who is not a United States citizen, asserts his counsel mistakenly advised him that his guilty plea would not result in his being deported. Cao is, however, the subject of a deportation order, although one presently in abeyance. Had he known about the immigration implications of his plea, he asserts, he would not have accepted the plea deal and would have gone to trial.
The court denied both motions. It denied the statutory motion, under Penal Code section 1016.5,[1] because Cao received the required advice regarding the immigration consequences of pleading guilty and acknowledged his understanding of these consequences in open court and in writing. It denied the nonstatutory motion because it lacked jurisdiction to consider it.
We affirm the trial court’s rulings in both respects.
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