P. v. Almanza

Filed 4/4/06 P. v. Almanza CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.

Sergio Almanza appeals the denial of his motion to withdraw the guilty plea he entered in 1997. (Pen. Code, § 1018.)^[1] We affirm.

On September 5, 1997, Almanza entered a guilty plea to possessing cocaine base. (Health & Saf. Code, § 11350, subd. (a).) The court placed him on probation for three years. In November 2001 the court reduced the conviction to a misdemeanor and expunged it. (§ 1203.4.) Fearing deportation, on June 29, 2005, Almanza filed a motion to withdraw the guilty plea contending his plea was not free and voluntary because it violated section 1016.5 and he was unaware of the immigration consequences of the guilty plea. The trial court denied the motion. Almanza contends this was error.

DISCUSSION

The trial court denied the motion because Almanza's conviction had already been withdrawn and the conviction had been set aside. Almanza does not challenge this finding that appears correct.

After noting that the guilty plea had already been withdrawn and Almanza's conviction set aside, the court went on the say it would deny the motion in any case because Almanza was advised of the possible immigration consequences when he entered the guilty plea.

Section 1016.5 provides in pertinent part:

"(a) Prior to acceptance of a plea of guilty . . . to any offense punishable as a crime under state law [with certain exceptions not relevant here], 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, 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 . . . 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 . . . and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement."

Almanza recognizes that he signed the plea form and initialed the box advising him there may be immigration consequences as a result of the guilty plea, but argues that the requirement that a defendant be advised of the possible immigration consequences of a guilty plea should require not a mere recitation that there might be immigration consequences, but an understanding of the immigration consequences of the guilty plea. In People v. Ramirez (1999) 71 Cal.App.4th 519, as in this case, the immigration advisement required by section 1016.5 was included in the change of plea form but was not elaborated on by the court at the guilty plea hearing. The appellate court found the immigration advisement in the change of plea form was sufficient to meet the requirements of section 1016.5. (People v. Ramirez, supra, at pp. 521-523.) In People v. Quesada (1991) 230 Cal.App.3d 525, 535, after noting that the purpose of section 1016.5 is to avoid unfairly subjecting a defendant to deportation, exclusion, or denial of citizenship because the defendant does not know this is a possible consequence of entering a guilty plea, the court determined the most reasonable means to reach this goal was to interpret the word "court," as used in section 1016.5, to mean the tribunal at which the defendant enters a guilty plea. The advisements need not be oral. (See In re Ibarra (1983) 34 Cal.3d 277, 285-286.) In both People v. Quesada, supra, and People v. Ramirez, supra, the reviewing court noted that the legislative purpose of section 1016.5 ¾ to ensure a defendant is advised of the immigration consequences of his or her plea and has an opportunity to consider them ¾ was satisfied by the change of plea form. (People v. Ramirez, supra, 71 Cal.App.4th at p. 522; People v. Quesada, supra, 230 Cal.App.3d at p. 536.)

In accord with the reasoning in People v. Ramirez, supra, 71 Cal.App.4th 519, we conclude the requirement of section 1016.5 that a defendant be advised of the possible immigration consequences of his or her plea was satisfied by the advisement in the change of plea form that was initialed and signed by Almanza.

Almanza discusses the major recent changes in the immigration laws and argues that the trial court erred in not advising him that he would be deported if he entered the guilty plea: (1) because he is in the United States without lawful entry; and (2) changes in the immigration law after his conviction bar an alien who has been convicted of possessing a controlled substance from obtaining adjustment of status. However, the trial court properly put Almanza on notice of possible immigration consequences if he entered a guilty plea when it advised him that he may be deported because of the plea. Because the trial court had no control over the Immigration and Naturalization Service, it could not tell him he would be deported.

Almanza having not shown error, we affirm the trial court's denial of his motion to withdraw the guilty plea.

DISPOSITION

The order is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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^[1] All statutory references are to the Penal Code unless otherwise indicated.