People v. Zamora CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD215127
- Trial judge
- Michael T. Smyth
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- O'Rourke (author), Judith D. McConnell, McINTYRE
Analysis
The trial court denied Zamora's motion to set aside his guilty plea, finding that he had been properly advised of the immigration consequences required by Penal Code section 1016.5. The Court of Appeal affirmed the order, concluding that the trial court did not abuse its discretion because the record demonstrated that Zamora was advised both in writing and orally, and that he understood the advisements.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to set aside guilty plea under Penal Code section 1016.5“We reject Zamora's contention the trial court abused its discretion by denying his motion to set aside the guilty plea.” | abuse of discretion | correct | agree with court agree with court |
Authorities
- relied: People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183 — Establishes that the review of a trial court's denial of a motion to vacate a plea under section 1016.5 is for abuse of discretion.
- relied: People v. Arriaga (2014) 58 Cal.4th 950 — Defines the three elements a defendant must establish to succeed on a motion to vacate a plea under section 1016.5: lack of advisement, potential adverse immigration consequences, and prejudice.
- relied: People v. Martinez (2013) 57 Cal.4th 555 — Clarifies that the defendant bears the burden of establishing prejudice by showing it is reasonably probable they would not have pleaded guilty if properly advised.
- relied: People v. Watson (1956) 46 Cal.2d 818 — Provides the standard for determining prejudice in the context of a plea, requiring a showing that it is reasonably probable the defendant would not have pleaded guilty.
- relied: People v. Ramirez (1999) 71 Cal.App.4th 519 — Holds that a written advisement of immigration consequences contained in a change of plea form and signed by the defendant satisfies the requirements of section 1016.5.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court denied Zamora's Penal Code section 1016.5 motion to vacate his 2008 guilty plea to selling methamphetamine, finding he had been advised of the immigration consequences by counsel and the court. The Court of Appeal affirmed, holding the written and oral advisements satisfied section 1016.5 and the record belied his claim that he did not comprehend them.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate guilty plea under Penal Code section 1016.5 for failure to advise of immigration consequences“Zamora failed to establish he was not properly advised of the immigration consequences set forth in section 1016.5. Rather, the record shows that Zamora was twice advised of such consequences.” | abuse of discretion | correct | agree with court Section 1016.5 requires only the statutory 'may have the consequences' advisement on the record; the plea form initialed by Zamora tracked the statutory language and the court repeated it orally, which Ramirez and the statute itself make sufficient. The statute does not require the court to warn that deportation is certain, and the first Arriaga element (advisements not given) fails, so the trial court had no basis to vacate. |
Rejection of claim that defendant did not comprehend or 'absorb' the advisement and that the plea form was misleading“Zamora's contentions are belied by the record, which shows he told the judge at the hearing that he understood the statements he signed on the plea form, and he had not taken any drugs or alcohol in the last 24 hours before the plea hearing.” | abuse of discretion | correct | agree with court Zamora affirmed on the record that he understood the form and the oral advisement and denied recent drug use; the trial court was entitled to credit those contemporaneous statements over a later self-serving declaration, and plea counsel's offer of proof contradicted the claimed assurance of no deportation. The 'misleading' argument fails because section 1016.5 prescribes the 'may' language the form used. |
Authorities
- relied: People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183 — Denial of a section 1016.5 motion to vacate is reviewed for abuse of discretion.
- relied: People v. Arriaga (2014) 58 Cal.4th 950 — A section 1016.5 movant must show the advisements were not given, adverse immigration consequences may result, and he would not have pleaded guilty if properly advised.
- relied: People v. Martinez (2013) 57 Cal.4th 555 — Defendant bears the burden of showing it is reasonably probable he would not have pleaded guilty had he been properly advised.
- relied: People v. Watson (1956) 46 Cal.2d 818 — Reasonable probability standard for prejudice.
- relied: People v. Ramirez (1999) 71 Cal.App.4th 519 — A written advisement of immigration consequences in a signed change of plea form satisfies section 1016.5.
The appellate opinion: sound — The opinion correctly identifies the abuse of discretion standard and the Arriaga elements, and resolves the appeal on the dispositive first element with record evidence of both written and oral statutory advisements. It is brief and does not separately address the ineffective-assistance flavor of Zamora's claim that counsel told him he would not be deported, but that claim is outside the scope of a section 1016.5 motion and was contradicted by counsel's offer of proof.
Opinion
Filed 4/13/16 P. v. Zamora CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068378
Plaintiff and Respondent, v. (Super. Ct. No. SCD215127)
ALEXIS ZAMORA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael T.
Smyth, Judge. Affirmed.
Moreno & Associates, William Baker for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Alexis Zamora pleaded guilty to the sale of methamphetamine. (Health & Saf.
Code, § 11379, subd. (a).) The court sentenced him to 180 days in custody and three years of formal probation. He appeals from an order denying his motion to set aside the guilty plea, claiming the trial court erred in denying his motion because he was not properly informed of the immigration consequences of his guilty plea, as required by Penal Code1 section 1016.5. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2008, Zamora, assisted by his attorney, filled out and signed a guilty plea form. Zamora initialed a paragraph stating: "I understand that if I am not a U.S.
citizen, this plea of Guilty/No Contest may result in my removal/deportation, exclusion from admission to the U.S. and denial of naturalization. Additionally, if this plea is to an 'Aggravated Felony' listed on the back of this form, then I will be deported, excluded from admission to the U.S., and denied naturalization."
At the plea hearing, the court asked Zamora if he "understood everything on the [plea] form," and Zamora responded in the affirmative. The court then advised Zamora orally: "If you're not a U.S. citizen, your plea may result in your removal or deportation, your exclusion from admission to the U.S., and a denial of naturalization. Do you understand that?" Zamora responded: "Yes, your Honor." When specifically asked whether he had any drugs or alcohol in the last 24 hours before the plea hearing, Zamora said "No." The court accepted the plea.
In April 2015, Zamora moved to set aside his guilty plea under section 1016.5, subdivision (b), after the Department of Homeland Security instituted deportation proceedings against him. Zamora argued when he pleaded guilty, his attorney explained 1 All further statutory references are to the Penal Code. 2 to him that doing so would not result in his deportation. Zamora's attorney for the plea bargain provided the court with an offer of proof that it was not her practice to make any promises to a defendant with respect to deportation. Additionally, Zamora argued that when he pleaded guilty he was "an addict" and "wasn't absorbing" the advisements about the consequences of his plea. Finding that Zamora's counsel and the court had advised him of the immigration consequences of his guilty plea, the court denied the motion.
DISCUSSION
We reject Zamora's contention the trial court abused its discretion by denying his motion to set aside the guilty plea. Specifically, Zamora argues he did not "absorb" the advisement, the record lacks evidence that he comprehended the advisement, and the guilty plea form was misleading because it did not advise him he "100 [percent] would be deported from the United States for life."
A. Legal Principles Section 1016.5, subdivision (a), requires the court to advise non-citizens pleading guilty to certain felonies that a conviction "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 court must advise a defendant on the record. (Ibid.) If the court fails to give the required advisement, it must, on defendant's motion, vacate the judgment and permit the defendant to enter a plea of not guilty. (§ 1016.5, subd. (b).)
We review the court's denial of a motion to vacate under section 1016.5 for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
3 To succeed on a motion to vacate under section 1016.5, "a defendant must establish (1) that the advisements were not given; (2) that the conviction may result in adverse immigration consequences; and (3) that the defendant would not have pled guilty or no contest had proper advisements been given." (People v. Arriaga (2014) 58 Cal.4th 950, 957-958.) The defendant bears the burden of establishing prejudice by showing it is "reasonably probable" he would not have pleaded guilty if properly advised. (People v. Martinez (2013) 57 Cal.4th 555, 562, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Analysis The trial court did not abuse its discretion in denying Zamora's motion to set aside his 2008 guilty plea. Zamora failed to establish he was not properly advised of the immigration consequences set forth in section 1016.5. Rather, the record shows that Zamora was twice advised of such consequences. Zamora signed the plea form and initialed an advisement incorporating the required statutory language. (See People v. Ramirez (1999) 71 Cal.App.4th 519, 522-523 [concluding a written advisement of immigration consequences contained in a change of plea form and signed by the defendant satisfies section 1016.5's requirements].) In addition, the court recited the immigration consequences at Zamora's plea hearing, and Zamora confirmed his understanding of that advisement. This satisfies the section 1016.5 requirements.
Furthermore, we reject Zamora's arguments that he did not "absorb" the advisement or comprehend the "misleading" plea form. Zamora's contentions are belied by the record, which shows he told the judge at the hearing that he understood the 4 statements he signed on the plea form, and he had not taken any drugs or alcohol in the last 24 hours before the plea hearing. We conclude the court acted well within its discretion in denying Zamora's motion to set aside his guilty plea.
DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
Cites, in this corpus
- People v. Arriaga S199339 · 2014-04-07
- People v. Martinez S199495 · 2013-08-08
- People v. Superior Court (Zamudio) S073031 · 2000-07-12
- People v. Ramirez F031267 · 1999-04-16
- People v. Watson Crim. 5813 · 1956-07-03