THE PEOPLE v. GONZALO MENDEZ (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant Gonzalo Mendez appeals an order denying his motion to vacate judgment pursuant to Penal Code section 1016.5.¹  In 1997, Mendez pleaded guilty to possession of a controlled substance.   Mendez contends that when he entered his plea, the trial court failed to advise him that his conviction may have the consequence of excluding him from admission to the United States.   We agree with Mendez that the trial court's statement to him regarding the immigration consequences of pleading guilty did not substantially comply with the requirements of section 1016.5.   However, we conclude that the trial court did not abuse its discretion in denying Mendez's motion because Mendez did not meet his burden of showing that he was prejudiced by the trial court's error.

FACTUAL AND PROCEDURAL BACKGROUND

In 1985, when Mendez was 17 years old, he immigrated to the United States from Mexico, where he was born.   Mendez was subsequently granted lawful permanent resident status.   He is a citizen of Cuba and Mexico.

On July 1, 1997, pursuant to a plea agreement, Mendez was convicted of receiving stolen property in violation of section 496, subdivision (a).   Before Mendez was sentenced for that crime, he was charged in a separate case with possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a).   The second case is the subject of this appeal.

On October 22, 1997, a hearing was held regarding both cases.   With respect to the possession of a controlled substance case, Mendez indicated that he wished to plead guilty.   The trial then stated to Mendez:  “If you are not a citizen of this country, by entering this plea would [sic ] prevent you from ever becoming a citizen and would cause your deportation from this country at the conclusion of your jail sentence.”   After stating that he understood the consequences of pleading guilty, Mendez pled guilty to possession of a controlled substance.   The trial court sentenced Mendez to three years of probation, plus 150 days in county jail.   With respect to Mendez's conviction for receiving stolen property, the trial court imposed a sentence of three years of formal probation and 150 days in county jail, to be served concurrently with his sentence in the other matter.

On September 17, 2008, Mendez returned to the United States from a trip to Mexico.   At Los Angeles International Airport, he applied for admission to the United States as a returning resident alien.   Mendez contends that the immigration authorities “paroled” him into the United States pending a hearing before an immigration judge.

On October 21, 2008, Mendez was served with a notice to appear before an immigration judge regarding his removal from the United States.   The notice stated that under federal law Mendez could be removed from the United States because of his 1997 convictions for receiving stolen property and possession of a controlled substance.

On December 22, 2009, Mendez filed a motion to vacate judgment.   In that motion, Mendez argued that the trial court should vacate the October 22, 1997, judgment, and allow Mendez to withdraw his guilty plea because at the time he pled guilty, the trial court did not advise him of the possibility that he could face exclusion from admission into the United States as required by section 1016.5.

On February 1, 2010, the trial court denied Mendez's motion.   At the hearing on the motion, the trial court found that in light of Mendez's previous convictions, Mendez was “fully aware” of the immigration consequences of pleading guilty to possession of a controlled substance.

“I read the transcript of [Deputy District Attorney] Romeyn's discussion with the defendant and his counsel about his potential consequences for immigration.   I would agree that he was not complete in his description of the possibilities.

“I can only conclude that the defendant's experience prior to this case with the criminal justice system, Mr. Mendez was fully aware based on the substantial compliance and all of his prior contacts with the court system where he was admonished repeatedly in the cases that I described, that is what I found when I went through these files.”

On February 1, 2010, Mendez appealed the trial court's order denying his motion to vacate.²

CONTENTIONS

Mendez argues that the trial court's statement on October 22, 1997, regarding the immigration consequences of Mendez's guilty plea to possession of a controlled substance did not substantially comply with the requirements of section 1016.5.   He further argues that in adjudicating his motion to vacate judgment, the trial court erroneously did not analyze whether Mendez was prejudiced by the trial court's insufficient immigration advisement.   Mendez thus requests that we reverse the trial court's order denying his motion to vacate judgment, and remand the matter with instructions to the trial court to determine whether Mendez has proven prejudice.

DISCUSSION

1. Standard of Review

We review an order denying a motion to vacate pursuant to section 1016.5 for abuse of discretion.  (People v. Akhile (2008) 167 Cal.App.4th 558, 562 (Akhile );  People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio ).)   However, to the extent Mendez implicitly challenges the trial court's factual findings, we do not disturb such findings if they are supported by substantial evidence.  (Poniktera v. Seiler (2010) 181 Cal.App.4th 121, 130.)

2. The Trial Court's Advisement Did Not Substantially Comply With the Requirements of Section 1016.5, Subdivision (a)

Section 1016.5, subdivision (a) provides:  “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.”

The trial court must substantially, not necessarily literally, comply with section 1016.5, subdivision (a).  (People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174 (Gutierrez );  Zamudio, supra, 23 Cal.4th at p. 208.)   This means that if the trial court uses words that are “equivalent” to the statutory language in lieu of the exact words of the advisement stated in the statute, section 1016.5, subdivision (a) is satisfied.  (Gutierrez, at p. 174.)

There is no substantial compliance, however, if the trial court does not advise the defendant of each of the three distinct possible immigration consequences of pleading guilty.   As the California Supreme Court explained in Zamudio:  “Section 1016.5 incorporates several distinct terms of art from immigration law.  ‘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.]”  (Zamudio, supra, 23 Cal.4th at pp. 207-208.)

An advisement that a guilty plea may lead to the deportation of the defendant does not amount to an advisement that such a plea may exclude the defendant from re-entering the country.   This is because “[a]liens subject to deportation ․ are not automatically or indefinitely subject also to exclusion.   An alien in the United States becomes subject to exclusion only if actually deported;  some deportable persons who agree to depart the United States at their own expense may have available a voluntary departure remedy not entailing exclusion from reentry.  [Citation.]  Moreover, some deported persons are barred from reentry only for a period of years, the length of which may vary depending on the circumstances.”  (Zamudio, supra, 23 Cal.4th at p. 208.)

Here, the trial court advised Mendez:  “If you are not a citizen of this country, by entering this plea would [sic ] prevent you from ever becoming a citizen and would cause your deportation from this country at the conclusion of your jail sentence.”   This advisement did not include a warning that Mendez's conviction could lead to his “exclusion from admission to the United States” or words to that effect.   Accordingly, the trial court's advisement did not substantially comply with the requirements of section 1016.5, subdivision (a).

3. The Trial Court Did Not Abuse Its Discretion In Denying Mendez's Motion to Vacate the Judgment Because Mendez Did Not Meet His Burden of Showing the Court's Error Was Prejudicial

Section 1016.5, subdivision (b) provides in relevant part:  “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.”

“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.”  (Totari, supra, 28 Cal.4th at p. 884.)   As explained in section 2, ante, Mendez was not properly advised of the immigration consequences of pleading guilty as provided by the statute.   Further, the People do not dispute that, at the time Mendez filed his motion, there was more than a remote possibility that the conviction would have one or more of the specified adverse immigration consequences.   But the People contend that Mendez did not meet his burden of showing that the trial court's error was prejudicial.

“On the question of prejudice, defendant must show that it is reasonably probable he would have not pleaded guilty or nolo contendere if properly advised.  [Citation.]  Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness.  [Citation.]  Thus, in deciding the merits of defendant's motion to vacate, it may be important for the trial court to determine the factual issue of knowledge.”   (Totari, supra, 28 Cal.4th at p. 884.)

In determining whether the defendant had actual knowledge of the immigration consequences of pleading guilty, despite the trial court's failure to provide him or her with a proper advisement, the trial court is not required “to ignore the obviously material fact of an earlier advisement.”  (Akhile, supra, 167 Cal.App.4th at p. 565.)   Thus, “if the advisement was inadequate, earlier advisements ‘may be a significant factor in determining prejudice.’  “ ³ (Ibid.)

Here, Mendez pled guilty to receiving stolen property in July 1997, less than four months before he pleaded guilty to possession of a controlled substance, the crime at issue in this case.   Mendez does not contend that he was not given a proper and complete advisement of the immigration consequences of pleading guilty to a crime when he pleaded guilty to receiving stolen property.   In addition, as the trial court noted, Mendez had been convicted of felonies in 1993 and 1996.   The trial court found based on its review of Mendez's criminal record that he had been “admonished repeatedly” about the immigration consequences of pleading guilty in those prior cases.⁴  Mendez's earlier advisements constituted substantial evidence to support the trial court's finding that Mendez was “fully aware” of the immigration consequences of pleading guilty.

Moreover, Mendez's assertion in his declaration to support his motion that he would have pleaded not guilty had he been given a proper advisement is belied by the complete absence of evidence and argument regarding the underlying charge against him.   Mendez did not present any evidence or make any argument regarding his chances of being acquitted if the case were tried.  (See Zamudio, supra, 23 Cal.4th at p. 210 [the Supreme Court declined to consider the probability of a conviction had the case been tried because whether the defendant was prejudiced by the trial court's incomplete advisements was a factual question for the trial court in the first instance].)

In addition, there was evidence that the trial court's failure to specifically mention exclusion as one of the immigration consequences of pleading guilty was not a material factor in Mendez's decision to plead guilty.   Mendez stated in his declaration:  “At the time I pled, I faintly remember the judge mentioning something about immigration consequences, but as a long time green card holder, I was not too concerned about my situation.”  (Italics added.)   This statement indicates that Mendez incorrectly assumed that as a “green card holder” he did not need to be concerned about his immigration situation, even though the trial court specifically advised him that he could be deported and that he might not become a naturalized citizen as a result of his conviction.   A reasonable inference can be made that Mendez would have made the same erroneous assumption had the trial court also advised him about the possibility of exclusion from the United States.

Under a totality of the circumstances, the trial court did not abuse its discretion by denying Mendez's motion to vacate because the trial court could reasonably conclude that Mendez did not meet his burden of showing the trial court's nonadvisement was prejudicial.

Mendez argues that the “[t]rial court erred because it did no analysis on whether [Mendez] was prejudiced by the immigration advisement.”   We reject this argument.

“ ‘A judgment or order of the lower court is presumed correct.   All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.   This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.”  (Denham, supra, 2 Cal.3d at p. 564;  accord People v. Giordano (2007) 42 Cal.4th 644, 666.)

The mere fact that the trial court did not expressly state that Mendez was not prejudiced does not support the conclusion that the trial court ignored the issue.  (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 [holding that the mere fact that the trial court did not expressly refer to a rule of court does not support the conclusion that the rule was ignored].)   The trial court found that at the time of Mendez's plea, he was not given a “complete” description of the negative immigration “possibilities” and that Mendez was “fully aware” of the immigration consequences of his plea.   We can infer from these findings the trial court concluded that, although the advisement did not satisfy the requirements of section 1016.5, Mendez's motion should be denied because Mendez did not meet his burden of showing prejudice.   For the reasons we have stated, we hold that this conclusion was not an abuse of discretion.

DISPOSITION

The order denying Mendez's motion to vacate judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Except as otherwise stated, all future statutory references are to the Penal Code..  FN1. Except as otherwise stated, all future statutory references are to the Penal Code.

FN2. This is an appealable order.  (People v. Totari (2002) 28 Cal.4th 876, 879 (Totari ).).  FN2. This is an appealable order.  (People v. Totari (2002) 28 Cal.4th 876, 879 (Totari ).)

FN3. Mendez contends that Zamudio rejected the consideration of earlier advisements in the court's prejudice analysis.   This is not true.   Zamudio held that earlier advisements had “no significance” for purposes of a laches defense asserted by the People.  (Zamudio, supra, 23 Cal.4th at p. 204.)   In the portion of the Zamudio opinion relating to prejudice, there is no discussion concerning earlier advisements.  (Id. at pp. 209-210.).  FN3. Mendez contends that Zamudio rejected the consideration of earlier advisements in the court's prejudice analysis.   This is not true.   Zamudio held that earlier advisements had “no significance” for purposes of a laches defense asserted by the People.  (Zamudio, supra, 23 Cal.4th at p. 204.)   In the portion of the Zamudio opinion relating to prejudice, there is no discussion concerning earlier advisements.  (Id. at pp. 209-210.)

FN4. Mendez did not include in the record a copy of the documents regarding his previous convictions that the trial court reviewed.   We therefore cannot determine from the record whether Mendez previously pleaded guilty to crimes in 1993 and 1996, and thus was presumably given the advisement required by section 1016.5, subdivision (a).   However, we presume the trial court's order was correct and make all reasonable inferences in favor of the order.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham ).)   On matters as to which the record is silent, Mendez, as the appellant, has the burden of affirmatively showing an error.  (Ibid.).  FN4. Mendez did not include in the record a copy of the documents regarding his previous convictions that the trial court reviewed.   We therefore cannot determine from the record whether Mendez previously pleaded guilty to crimes in 1993 and 1996, and thus was presumably given the advisement required by section 1016.5, subdivision (a).   However, we presume the trial court's order was correct and make all reasonable inferences in favor of the order.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham ).)   On matters as to which the record is silent, Mendez, as the appellant, has the burden of affirmatively showing an error.  (Ibid.)

KLEIN, P. J. ALDRICH, J.