THE PEOPLE v. EMANUEL MARTINEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. EMANUEL M. MARTINEZ, Defendant and Appellant.

B218063

Decided: June 25, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, Deputy Attorneys General, for Plaintiff and Respondent.

Emanuel Martinez appeals from an order denying his motion to vacate his conviction, by which he sought to withdraw his guilty plea to first degree burglary.   He contends that the trial court failed to properly advise him of the immigration consequences of his guilty plea.   We find the trial court properly advised Martinez of the consequences of his plea and therefore we affirm the order denying his motion.

FACTS AND PROCEEDINGS BELOW

An information charged Martinez with one count of first degree residential burglary in violation of Penal Code section 459.   On August 5, 1993, Martinez pled guilty to this charge and the trial court sentenced him to the low term of two years in state prison.   Sixteen years later, in 2009, Martinez filed a motion to vacate the conviction pursuant to Penal Code section 1016.5 alleging that the trial court failed to properly advise him of the immigration consequences of his guilty plea.   Martinez filed a declaration in support of his motion stating that he would not have pleaded guilty if he had known his conviction would result in his mandatory exclusion and removal from the United States.

On June 15, 2009, the trial court denied the motion to vacate.

Martinez filed a timely appeal.

DISCUSSION

Penal Code section 1016.5, subdivision (a) provides that prior to acceptance of a plea of guilty to any offense punishable as a crime under state law, the court shall advise the defendant that “[i]f 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.”  (Italics added.)

Subdivision (b) provides a remedy for a trial court's failure to give the required warning:  “If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.   Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.”

In this case, the court orally advised Martinez that “if you are not a citizen of this country, this conviction may result in your deportation, exclusion from this country, and may prevent you from becoming an American citizen.”   In addition, Martinez initialed a plea advisement form, item number 10 of which stated, “I understand that if I am not a citizen of the United States, the conviction for the offense 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.”

Martinez contends that the court should have advised him that he would automatically be excluded from admission to the United States as a result of his conviction.   We disagree.   The court's oral advisement and the written advisement properly tracked the statutory requirements.   As the Court observed in People v. Limon (2009) 179 Cal.App.4th 1514, 1518:  “To prevail on a section 1016.5 motion, ‘a defendant must establish’ that he or she ‘was not properly advised of the immigration consequences as provided by the statute.’   [Citation.]  Since the court did so advise [the defendant, the] statutory claim for relief is meritless.”  (Quoting People v. Totari (2002) 28 Cal.4th 876, 884;  italics added by the Limon court.)

People v. Superior Court (Zamudio ) (2000) 23 Cal.4th 183, cited by Martinez, does not support his contention.   In Zamudio, the trial court's error was in failing to make any mention of the consequences of Zamudio's plea on his ability to enter the United States.  (Id. at pp. 188-189.)   The court did not discuss what warning would comply with the requirements of section 1016.5.

Martinez also points to the current Judicial Council advisement form CR 101 which states, “I understand that if I am not a citizen of the United States, my plea of guilty or no contest may or, with certain offenses, will result in my deportation․”  (Bold type in original.)   Martinez does not contend that the form he now relies on was in effect at the time he entered his plea.   Indeed, it was first adopted in 2006, 13 years after Martinez entered his plea.   Further, Martinez cites no authority for his implied argument that the form supersedes the statutory requirements and we know of none.   In any case, use of the form is discretionary not mandatory.  (Cal. Rules of Court, App. A, Judicial Council Legal Forms List (West 2010 ed.) 895, 898.)   Martinez failed to establish that he was not properly advised pursuant to Penal Code section 1016.5;  therefore, we need not address whether Martinez would have been prejudiced if the trial court failed to properly advise him.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

MALLANO, P. J. JOHNSON, J.