THE PEOPLE v. CARLOS GALVAN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CARLOS GALVAN, Defendant and Appellant.

B216518

Decided: June 30, 2010

Laura S. Kelly, 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, Stephanie C. Brenan and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The superior court denied Carlos Galvan's (appellant's) motion under Penal Code section 1016.5 1 to vacate his conviction on the ground that the court that took his “no contest” plea failed to advise him of an adverse immigration consequence.   Appellant appeals on the ground that the superior court erred in denying his motion because the trial court failed to follow the required language of section 1016.5 when advising him of the consequences of his plea.

FACTUAL AND PROCEDURAL BACKGROUND

According to appellant's probation report, Long Beach police were dispatched to a spousal abuse call on the night of May 18, 2001, and entered an apartment where they saw appellant, who was sweating profusely.   Appellant put his hands on his head when ordered, but he broke away from the officers and ran onto a balcony.   While police officers struggled with appellant, he pulled a handgun from his pocket and pointed it at one officer.   Another officer struggled with appellant until appellant released the gun.   During the struggle, appellant hit the officer on the face.

On December 21, 2001, appellant pleaded “no contest” to one count of assault on a peace officer with a semiautomatic firearm in violation of section 245, subdivision (d)(2).   Appellant admitted the special allegation that he personally used a semiautomatic firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a) in the commission of the assault.   The trial court sentenced appellant to the low term of five years for the assault and a consecutive three years for the firearm-use enhancement, for a total sentence of eight years in state prison.   Three other counts were dismissed pursuant to the plea agreement.

On February 5, 2009, appellant was given notice that he was charged with being subject to removal from the United States and that a removal hearing would be held.   On April 2, 2009, appellant filed a motion to vacate his conviction.   On May 7, 2009, the superior court heard appellant's motion to withdraw his plea based on the failure to advise him of his immigration consequences.   The court stated it had read the plea transcript and the admonition appellant received, and it saw no failure to advise.   The motion was denied.

I. Appellant's Argument

Appellant contends that the advisement he received failed to strictly track the language of section 1016.5 and thereby failed to capture the full meaning of the advisement the statute commands.  Section 1016.5 clearly mandates strict adherence to its statutory language.   According to appellant, he is therefore entitled to withdraw his plea.

Appellant also argues that the trial court stated only that it did not see a failure to advise and failed to determine whether appellant would face the adverse immigration consequences described in section 1016.5 and whether he suffered prejudice.   He contends we should reverse and remand to the trial court so that appellant may have the opportunity to demonstrate that he is likely to suffer adverse immigration consequences and to demonstrate prejudice.

Appellant also contends that this court should apply de novo review to the denial of a motion under section 1016.5 rather than the abuse of discretion standard.

II. Relevant Authority

Section 1016.5, subdivision (a) states:  “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.”  (Italics added.)

Section 1016.5, subdivision (b) provides in pertinent part that 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.”

Section 1016.5 requires the court to expressly warn defendants of the “ ‘three distinct possible immigration consequences' ” of their convictions before taking their pleas.  (People v. Gutierrez (2003) 106 Cal.App.4th 169, 173 (Gutierrez ).)  “ ‘Deportation is the removal or sending back of an alien to the country from which he or she has come․’  [Citation.]   ‘Exclusion’ is ‘being barred from entry to the United States.’  [Citation.]  ‘Naturalization’ is a process by which an eligible alien, through petition to appropriate authorities, can become a citizen of the United States.   [Citation.]”  (People v. Superior Court (Zamudio ) (2000) 23 Cal.4th 183, 207-208 (Zamudio ).)

“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.”  (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari );  Zamudio, supra, 23 Cal.4th at pp. 199-200;  People v. Carty (2003) 110 Cal.App.4th 1518, 1525, fn. 8.) We review the denial of such a motion under an abuse of discretion standard.  (Zamudio, supra, 23 Cal.4th at p. 192.)

III. No Abuse of Discretion or Error

At the outset, we address appellant's argument regarding the standard of review.   The denial of a motion under section 1016.5 is reviewed for abuse of discretion, but statutory interpretation is an issue of law that must be decided de novo.  (People v. Akhile (2008) 167 Cal.App.4th 558, 562-563.)   In the instant case, the trial court did not base its denial of appellant's motion on its own interpretation of section 1016.5.   Likewise, this court need not interpret section 1016.5 to determine whether appellant was adequately advised.   In any event, we conclude that under either standard of review, appellant's claim fails.

The record of the taking of appellant's plea reveals that the trial court stated the following:  “If you are not a citizen of this country, this conviction will result in deportation, denial of naturalization, denial of the right to come back into the country if you leave it.”  (Italics added.)   Although the word “exclusion” was replaced by the words “denial of the right to come back into the country if you leave it,” there was substantial compliance with the statutory advisement.

Only substantial compliance with the words of the statute is necessary as long as the defendant is specifically advised of all three separate immigration consequences of the plea.  (Gutierrez, supra, 106 Cal.App.4th at p. 174.)   The trial court's explanation that appellant would not be allowed back into the country if he left it (which followed the advisement that “you will be deported”), constituted a clear explanation of the meaning of the word “exclusion”-a term of art of immigration law that might not be clear to a lay person.   Appellant's admonishment is similar to the one given the defendant in Gutierrez, where the trial court told the defendant that he would be “denied re-entry” rather than using the words of the statute.  (Id. at pp. 173, 174.)   Appellant's admonition is likewise substantially compliant with section 1016.5.

The addition of the words “if you leave it” in appellant's admonition did not function as a condition for exclusion, nor did it convey a more limited potential consequence that would occur in only a particular set of circumstances, as appellant alleges.   Appellant argues that exclusion from admission entails not only a bar on reentry to the United States if one should leave it, but also an inability to adjust one's status to lawful permanent resident.   Thus, the admonition he received did not convey the full meaning of the statutory warning, but rather, a watered-down one.

As stated in Gutierrez, “a trial court does not have an obligation to advise on those immigration consequences that appellant may suffer other than the ones listed in section 1016.5.”  (Gutierrez, supra, 106 Cal.App.4th at p. 174, fn.   4) Under the circumstances of this case, moreover, where appellant was specifically told he would be deported, he was adequately advised of the exclusion consequences to which he was subject.

Finally, there is no need for this court to remand appellant's case for a determination of whether he is subject to adverse immigration consequences and whether he suffered prejudice.   The trial court properly ruled on the motion without making the additional findings, since these findings were superfluous once the court determined that appellant had been properly advised.   As noted in Totari, appellant must establish all three circumstances in order to prevail on a motion to vacate under section 1016.5, i.e., that he was not properly advised, that there was more than a remote possibility he would suffer one or more adverse immigration consequences, and that he suffered prejudice due to the court's failure to advise.  (Totari, supra, 28 Cal.4th at p. 884.)   Since appellant failed to establish the very first circumstance, he has clearly failed to make an adequate showing to prevail on his motion to vacate his conviction.

In any event, the record gives no indication that defendant was prejudiced by the improper advisement, the third prong of the Totari test.2  (Totari, supra, 28 Cal.4th at p. 884.)   In order to show prejudice, appellant must show it was reasonably probable he would not have pleaded guilty if properly advised.  (People v. Akhile, supra, 167 Cal.App.4th at p. 565, citing Zamudio, supra, 23 Cal.4th at pp. 209-210;  In re Resendiz (2001) 25 Cal.4th 230, 254, disapproved on another point in Padilla v. Kentucky (2010) _ U.S. _ [130 S.Ct. 1473, 1484.)   In this case, defendant was facing a maximum possible sentence of 21 years and eight months.   Appellant's plea resulted in a sentence of eight years.   A conviction after trial would have subjected him to the same immigration consequences, and appellant offers no indication as to how he could have avoided being convicted.  (See In re Resendiz, supra, 25 Cal.4th at p. 254.)   In sum, appellant presents no evidence-objective or otherwise-that he would not have pleaded guilty and would have proceeded to trial if the trial court had told him in the exact words of the statute, that “conviction of the offense for which you have been charged may have the consequence[ ] of ․ exclusion from admission to the United States,” instead of what he was told, i.e., that he would be denied the right to come back into the country if he left it. (§ 1016.5, subd. (a);  see In re Alvernaz (2006) 2 Cal.4th 924, 938 [a defendant's self-serving statement of prejudice must be corroborated independently by objective evidence].)   It is reasonable to believe appellant would have pleaded guilty under the circumstances of his case even if the exact words of the statute had been uttered by the trial court who took appellant's no contest plea.

We conclude appellant's arguments are without merit, and we find no error or abuse of discretion in the superior court's denial of his motion.

DISPOSITION

The trial court's denial of defendant's motion to vacate his conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. For the sake of argument, we accept the notice of appellant's impending hearing in removal proceedings as a showing on the second prong of the Totari test.   The record contains no information about whether the hearing took place or the outcome of the proceeding..  FN2. For the sake of argument, we accept the notice of appellant's impending hearing in removal proceedings as a showing on the second prong of the Totari test.   The record contains no information about whether the hearing took place or the outcome of the proceeding.

_, P.J. BOREN _, J. DOI TODD