THE PEOPLE v. CARLOS SARZOSA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Carlos Sarzosa appeals from the trial court's order denying his motion to vacate his plea of guilty to one count of possession of cocaine.   Sarzosa contends he was improperly advised of the immigration consequences of his plea and, if he had been properly advised, he would not have agreed to plead guilty to the charge.   We affirm.

factual and procedural background

In 1998, at the age of 35, Sarzosa entered the United States on a year-long visa to visit his parents and siblings who had immigrated from Peru 15 years earlier and had become legal residents of the United States.   At the end of the year, Sarzosa stayed with his family in this country.

In a felony complaint dated July 28, 2000, Sarzosa was charged with one count of possession of a controlled substance (cocaine) in violation of Health and Safety Code section 11350, subdivision (a), carrying a sentencing range of 16 months to three years in state prison.   He was deemed eligible for a drug diversion program, which would defer entry of judgment pending his completion of a treatment program.   Represented by a public defender and aided by a Spanish language interpreter, Sarzosa appeared in court on August 11, 2000 for his arraignment and to enter a plea of guilty to the charge.   In the course of his plea, Sarzosa was advised, “If you are not a citizen of the United States, this conviction, even if you successfully complete deferred entry of judgment, this conviction could cause you to be deported under the laws of the United States, it could result in your deportation, denial of re-entry to the United States and denial of naturalization rights.” ¹  Pursuant to the plea agreement, entry of judgment was deferred for 18 months;  and Sarzosa was released to participate in the required drug treatment program.²

In 2006 Sarzosa married an American citizen.   In October 2008 the Department of Homeland Security commenced a removal proceeding against Sarzosa on the ground he had overstayed his visa.   In December 2008 Sarzosa's wife petitioned the Department of Homeland Security to obtain legal residency for him.   On October 14, 2009 the immigration court issued a notice setting a hearing date of January 6, 2010 on the removal petition.   Shortly thereafter, Sarzosa was detained by federal agents and housed at the Mira Loma Detention Center in Lancaster pending deportation.

On December 11, 2009 Sarzosa moved pursuant to Penal Code section 1016.5, subdivision (a) (section 1016.5(a)), to vacate his conviction.   In a declaration submitted in support of his motion, Sarzosa claimed that he had been unaware his guilty plea would result in his “mandatory exclusion from admission to the U[nited] S[tates]” and that, had he known, he would have exercised his right to a jury trial.   He also stated his immediate family—his wife and their three-year-old son—would suffer financial devastation if he was permanently excluded and his entire extended family now resides in the United States:  “Needless to say, my family and I will be emotionally devastated if I am permanently excluded from the United States.”

At a January 19, 2010 hearing on the motion, the trial court acknowledged there were equities in Sarzosa's favor and, were those equities controlling, it would rule in his favor.   The court denied the motion, however, concluding the language “denied reentry” was equivalent to “denied admission” and, therefore, the immigration advisement was substantially correct.   The court specified its ruling was based on its interpretation of the law.

discussion

1. The Governing Standard

A defendant's right to an advisement about immigration consequences is statutory, not constitutional.  (People v. Superior Court (Zamudio ) (2000) 23 Cal.4th 183, 194 (Zamudio ).)   To prevail on a motion pursuant to Penal Code section 1016.5,³ a defendant must establish:  (1) at the time of the plea, the trial court failed to advise the defendant of the immigration consequences of the plea as provided in 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) properly advised, the defendant would not have entered the plea.  (People v. Totari (2002) 28 Cal.4th 876, 884;  Zamudio, at p. 192.)   The underlying purpose of Penal Code section 1016.5 is to ensure the defendant has actual knowledge of the possible adverse immigration consequences of a guilty or no contest plea and has had an opportunity to make an intelligent choice to plead guilty or no contest.  (Zamudio, at pp. 193–194;  People v. Gutierrez (2003) 106 Cal.App.4th 169, 173 (Gutierrez ).)

Ordinarily, we review the denial of a motion to vacate under Penal Code section 1016.5 for abuse of discretion.  (Zamudio, supra, 23 Cal.4th at p. 192.)   However, a denial based on the trial court's statutory interpretation is an issue of law we review de novo.  (People v. Akhile (2008) 167 Cal.App.4th 558, 562–563.)

2. The Trial Court's Advisement Was Substantially Correct

Penal Code section 1016.5 requires the court to expressly warn defendants of the “ ‘three distinct possible immigration consequences' ” of their convictions before taking their pleas.  (Gutierrez, supra, 106 Cal.App.4th at p. 173.)   Although Penal Code section 1016.5 specifically defines those consequences as “deportation, exclusion from admission to the United States, or denial of naturalization,” the use of the exact language of the statute is not required.  “[O]nly 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.”  (Gutierrez, at pp. 172, 174.)   “ ‘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.”  (Zamudio, supra, 23 Cal.4th at pp. 207–208.)

Sarzosa contends he was not fully advised of the immigration consequences of his plea because he was told his plea “could result in ․ denial of re-entry” rather than the possibility the plea might result in “exclusion from admission” to the United States, thereby preventing him from adjusting his status following his marriage to a United States citizen.   However, the same phrase used by the trial court in this case was extensively analyzed in Gutierrez, supra, 106 Cal.App.4th 169, where the defendant had contended “there are actually three components to exclusion:  reentry, rescission of resident status, and ineligibility to adjust one's status,” and argued error because he was only admonished, as here, as to re-entry.  (Id. at p. 174, fn. 4.) Our colleagues in Division Eight disagreed, noting “ ‘ “[e]xclusion” is “being barred from entry to the United States,” ’ ” and found substantial compliance with the requirements of the statute.  (Id. at p. 174, quoting Zamudio, supra, 23 Cal.4th at p. 207.)   As the Gutierrez court further noted, “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.”  (Id. at p. 174, fn. 4.)

Sarzosa contends Gutierrez is not controlling because, following his deportation, Gutierrez had attempted to reenter the country.   The advisement Gutierrez received, therefore, was adequate to advise him of the consequence he suffered.   Sarzosa, on the other hand, was not advised he would be prohibited from adjusting his status at a later date.   While that unanticipated consequence might be relevant to the question of prejudice (see People v. Castro–Vasquez (2007) 148 Cal.App.4th 1240, 1246, fn. 6 [proof defendant was, in fact, ignorant of immigration consequences may constitute corroborating evidence of prejudice] ), a warning of this possible consequence, in addition to the warnings actually given, was not required by section 1016.5(a).

As in Gutierrez, the advisement Sarzosa received substantially complied with section 1016.5(a).⁴  Although the advisement was not a verbatim recitation of the one stated in section 1016.5(a), it was nevertheless sufficient to comply with the statute.

3. Sarzosa Failed To Demonstrate Prejudice

Even if we were to conclude Sarzosa received an inadequate advisement, the motion to vacate was properly denied because he failed to establish the third prong of the required showing under People v. Totari, supra, 28 Cal.4th 876, 884:  “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.”  (See Zamudio, supra, 23 Cal.4th at p. 198 [“ ‘[N]ormally a motion to vacate a plea based on misadvisement or omission of a collateral consequence requires the defendant to demonstrate that he would not have entered into the plea had he known of the consequence.’  [Citations.]  We see no indication that the Legislature intended section 1016.5 to operate as an exception.”];   id. at p. 200 [when ruling on Pen.Code, § 1016.5 motion, trial court must consider not only whether it formerly failed to advise defendant as Pen.Code, § 1016.5 requires and whether, as a consequence of conviction, defendant actually faces one or more of the statutorily specified immigration consequences, “but also whether defendant was prejudiced by the court's having provided incomplete advisements”];  see also People v. Castro–Vasquez, supra, 148 Cal.App.4th at p. 1245;  People v. Akhile, supra, 167 Cal.App.4th at p. 565.)

Although this factual inquiry is usually delegated to the trial court (see Zamudio, supra, 23 Cal.4th at p. 210), the record provided by Sarzosa is bereft of cognizable evidence of prejudice.  (See In re Alvernaz (1992) 2 Cal.4th 924, 938 [defendant's self-serving statement of prejudice must be corroborated independently by objective evidence].) ⁵  In this case, Sarzosa was facing a maximum possible sentence of three years in state prison.   His plea resulted in placement in a diversion program that enabled him to avoid incarceration.   A conviction after trial, on the other hand, would have subjected Sarzosa to the same immigration consequences;  and he offered no indication how he could have avoided that result.   Indeed, Sarzosa failed to offer any evidence from his counsel relating to possible defenses to the charged offense or to excuse his inability to do so.  (See 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, 176 L.Ed.2d 284].)

In sum, Sarzosa presented 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 instructing he would be denied reentry to the country.   He therefore failed to demonstrate the prejudice required for a successful motion to vacate his guilty plea.

disposition

The order is affirmed.

We concur:

FOOTNOTES

FN1. Sarzosa was not provided with a form containing the advisement of the possible immigration consequences of his plea.   After the court had completed its lengthy advisement of the rights, waivers and burdens imposed by the proposed plea, Sarzosa asked for “a complete copy of all the rights that you read to me so I can have that for my own reference.”   The court declined the request, explaining it did not have an extra copy, and suggested Sarzosa obtain a copy of the transcript from his counsel.   The record does not indicate whether Sarzosa was given a copy of the transcript..  FN1. Sarzosa was not provided with a form containing the advisement of the possible immigration consequences of his plea.   After the court had completed its lengthy advisement of the rights, waivers and burdens imposed by the proposed plea, Sarzosa asked for “a complete copy of all the rights that you read to me so I can have that for my own reference.”   The court declined the request, explaining it did not have an extra copy, and suggested Sarzosa obtain a copy of the transcript from his counsel.   The record does not indicate whether Sarzosa was given a copy of the transcript.

FN2. Sarzosa ultimately failed to complete the diversion program.   On September 5, 2001 judgment was entered, and Sarzosa was placed on three years formal probation on condition he serve 90 days in the Los Angeles County jail..  FN2. Sarzosa ultimately failed to complete the diversion program.   On September 5, 2001 judgment was entered, and Sarzosa was placed on three years formal probation on condition he serve 90 days in the Los Angeles County jail.

FN3. Penal Code section 1016.5 provides, “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime 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. [¶] (b) ․ If, ․ 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.”  (Italics added.).  FN3. Penal Code section 1016.5 provides, “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime 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. [¶] (b) ․ If, ․ 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.”  (Italics added.)

FN4. Unlike Gutierrez, the record here does not indicate Sarzosa executed a written waiver of rights containing the exact language of section 1016.5(a), although the minute order entered following the plea proceedings contains the proper advisement under section 1016.5(a).   Nonetheless, in light of the oral advisement Sarzosa received, there was no error..  FN4. Unlike Gutierrez, the record here does not indicate Sarzosa executed a written waiver of rights containing the exact language of section 1016.5(a), although the minute order entered following the plea proceedings contains the proper advisement under section 1016.5(a).   Nonetheless, in light of the oral advisement Sarzosa received, there was no error.

FN5. “In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include:  whether counsel actually and accurately communicated the offer to the defendant;  the advice, if any, given by counsel;  the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer;  and whether the defendant indicated he or she was amenable to negotiating a plea bargain.   In this context, a defendant's self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence.   A contrary holding would lead to an unchecked flow of easily fabricated claims.”  (In re Alvernaz, supra, 2 Cal.4th at p. 938.).  FN5. “In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include:  whether counsel actually and accurately communicated the offer to the defendant;  the advice, if any, given by counsel;  the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer;  and whether the defendant indicated he or she was amenable to negotiating a plea bargain.   In this context, a defendant's self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence.   A contrary holding would lead to an unchecked flow of easily fabricated claims.”  (In re Alvernaz, supra, 2 Cal.4th at p. 938.)

ZELON, J. JACKSON, J.