Filed 10/23/17 P. v. Hermosillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

Law Offices of Zulu Ali and Zulu Ali for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

Twenty years after pleading guilty to a variety of charges and being sentenced, Victor Hermosillo, Jr., sought to have his case reopened, the judgment vacated, and his plea withdrawn pursuant to Penal Code section 1016.5.[1] He appeals from the trial court order denying that request. We find no error and affirm the order.

FACTS

In early 1995, Hermosillo was charged with five counts of receiving stolen property (former § 496.1, subd. (a)), one count of unlawful taking of a vehicle (Vehicle Code, § 10851, subd. (a)), one count of possession of a destructive device (former § 12303), and one count of possession of a destructive device near certain places (former § 12303.2). He initially pleaded not guilty to the charges, but later withdrew that plea and pleaded guilty to seven of the eight counts. The trial court sentenced him to three years in prison on one of the counts of receiving stolen property and concurrent two-year prison sentences on each of the remaining counts.

More than 20 years later, Hermosillo filed a motion pursuant to section 1016.5, subdivision (b), seeking to have the judgment vacated and his guilty plea withdrawn. He claimed he was not properly advised about the potential immigration consequences of a guilty plea. The trial court denied the motion for multiple reasons, including the following: (1) Hermosillo provided “no explanation for the 20-year delay in seeking relief[;]” (2) there was “no credible showing that the trial court failed to provide the [requisite] statutory advisement[;]” and (3) Hermosillo failed to demonstrate prejudice. Hermosillo timely appealed.

DISCUSSION

“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. [Citations.]” (People v. Totari (2002) 28 Cal.4th 876, 884.) We review the trial court’s decision for an abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)

Hermosillo’s sole contention is the written advisement he was given concerning potential immigration implications was “not verbatim or in substantial compliance with [the] advisement required [by] . . . section 1016.5.” (Capitalization, bold, and underline omitted.) Such a claim is plainly belied by the signed plea form. Next to one of the boxes containing Hermosillo’s initials, it states: “I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” This language mimics the requisite statutory language word for word, and is undoubtedly a sufficient advisement. (People v. Araujo (2016) 243 Cal.App.4th 759, 762 [§ 1016.5 advisement may be given orally or in writing].)

Because the record is clear Hermosillo was properly advised, we need not reach the questions of timeliness and prejudice to conclude the trial court did not abuse its discretion in denying the motion.

DISPOSITION

The order is affirmed.

O’LEARY, P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.