THE PEOPLE v. BRIAN PATRICK ROBLES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEDURAL HISTORY

This is an appeal from an order denying a motion to vacate a judgment.   We affirm the order.

In 2002, defendant and appellant Brian Patrick Robles, while represented by counsel, pled no contest to violation of Penal Code section 243, subdivision (e)(1), domestic battery, a misdemeanor.   At the change of plea hearing, defendant submitted to the court an advisement and waiver of rights form.   Defendant initialed a box beside the following statement (boldface in original):  “If I am not a citizen my change of plea can result in my deportation, exclusion from admission to the United States, and/or a denial of naturalization.   Deportation is Mandatory for some offenses.   I have fully discussed this matter with my attorney and understand the serious immigration consequences of my plea.”   His counsel signed the lawyer's statement indicating, in relevant part, that she had gone over the form with defendant and had explained the consequences of the plea to him.   At the change of plea hearing, defendant told the court he had read, understood, signed and initialed the change of plea form.   The trial court also signed the form indicating it was making certain findings which included that defendant understood the consequences of his plea.

Approximately eight years later, defendant was taken into custody by the Department of Homeland Security and was served with a notice of commencement of removal proceedings.   Defendant then filed a motion in the trial court seeking to vacate his conviction and withdraw his no contest plea.   As relevant here, the motion was based on a letter to the trial court in which defendant claimed, notwithstanding the representations made in the change of plea form, that “I was never advised by legal counsel of the consequences of pleading no contest or guilty to that crime with immigration or any immigration law.”

Over the prosecutor's objection that defendant's letter was inadmissible hearsay, the court considered the matter on the merits.   Although the ruling is somewhat unclear, it appears the court determined that the change of plea form and the reporter's transcript established that defendant had been adequately advised as stated in the form, and that no factual basis existed to vacate the judgment or to permit withdrawal of the no contest plea.   In any event, the court denied the motion.

Defendant filed a timely notice of appeal.

DISCUSSION

Although defendant acknowledged in his moving papers in the trial court the requirement that he establish that he was prejudiced by any failure of counsel or the trial court to advise him concerning immigration consequences of his plea (see Pen.Code, § 1016.5), on appeal he fails to address the requirement of prejudice.   Nevertheless, there is such a requirement (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210):  A defendant moving to vacate a plea and judgment on the grounds of inadequate advisement of immigration consequences must establish that it is reasonably probable he would not have entered a plea of no contest or a plea of guilty if he had been properly advised.

In the present case, even if defendant's assertions concerning the 2002 proceedings were properly presented (they appear to be submitted in the form of inadmissible hearsay), defendant does not assert, much less establish, that he would not have entered his plea if he had been adequately advised pursuant to Penal Code section 1016.5.   Accordingly, defendant has failed to establish a prima facie basis for relief on his motion to vacate.   The trial court did not err in denying the motion.

DISPOSITION

The June 10, 2010, order denying defendant's motion to vacate judgment and withdraw plea is affirmed.

THE COURT