P. v. Higueros

Filed 10/5/07 P. v. Higueros CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Thomas C. Falls, Judge. Affirmed.

Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Carlos Gilberto Higueros (Higueros) appeals from the trial courts order denying his motion to vacate his 1991 plea of guilty to the unlawful driving or taking of a vehicle (Veh. Code, 10851), receiving stolen property (Pen. Code, 496) and grand theft (Pen. Code, 487). (Pen. Code, 1237, subd. (b).) We affirm the trial courts order.

FACTUAL AND PROCEDURAL BACKGROUND

At proceedings held on July 1, 1991, Higueros indicated he had reviewed his Waiver of Rights and Plea form with his counsel. On the form, Higueros had placed his initials in the box next to the following admonition: I understand that if I am not a citizen of the United States, the conviction for the offense 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. Although Higueros apparently spoke English, the form was translated into Spanish, then signed by Higueros and his counsel. When the trial court asked Higueros if he underst[oo]d all the contents of the form, Higueros responded, Yes. When the trial court then asked Higueros if the initials and signature on the form were his, Higueros again responded, Yes.

After waiving his right to a court or jury trial, his right to confront and cross-examine witnesses, his right to testify in his defense and his right to subpoena his own witnesses, Higueros pleaded guilty to the unlawful driving or taking of a vehicle, receiving stolen property and grand theft. The trial court found the waivers and pleas were knowingly, intelligently, voluntarily and understandingly made, with knowledge of the consequences.

The trial court granted Higueros probation for a period of three years. In reviewing the terms of probation, the court addressed Higueros and stated, Now, . . . this probation report says youre an undocumented alien. However, there are hundreds and thousands of undocumented aliens living in Southern California, and you may remain here, and if you do remain here, youll be on probation, and you are ordered, sir, to report to the probation officer within 48 hours of your release from custody. Do you understand that you must do that? Higueros indicated he understood. The trial court then stated, In addition, if you are deported, you are not permitted to return to this country unless you are legal, that you have a green card, and that you are a documented alien, and that will be a condition of your probation. Thats an additional condition of probation, not return to this country if deported unless legal. Higueros indicated he understood.

On December 12, 2006, Higueros filed a motion to vacate his 1991 plea based on [the] trial courts failure to properly advise [him] of the immigration consequences of his plea agreement. He asserts, although he signed a waiver form in which he indicated he understood that if he was not a citizen of the United States his convictions could result in deportation, exclusion from admission to the United States, or denial of naturalization, the courts comment at sentencing, that he may remain here, completely undermined the previous waiver by contradicting it and seemingly giving . . . [him] permission to remain in the United States. . . . Higueros asserts he suffered prejudice as a result of the trial courts remarks in that he left his native Guatemala during a time of intense violence and has no desire to return. Accordingly, he would not have knowingly agreed to a deal that would seal his fate by forcing him to leave the United States. Had he known that agreeing to the plea for his 1991 convictions would make him deportable, prevent him from United States citizenship, or preclude him from re-entry into the United States, he would not have taken the plea. Finally, Higueros indicates his counsel failed to conduct a reasonable investigation into the immigration consequences of [his] plea and, had counsel done so and properly advised him, he would have sought a non-deportable plea or taken his chances at trial.

A hearing was held on the matter on February 6, 2007. After hearing argument from the parties, the trial court denied Higueross motion. The trial court noted it was only during the sentencing portion [of the proceedings that] this ambiguity, if it [was] an ambiguity, came up. . . . The trial court continued, I dont see how the courts comment during sentencing induced your client to enter a plea since the plea was already taken, everything was already in.

Higueros filed a timely notice of appeal from the trial courts order on March 6, 2007.

This court appointed counsel to represent Higueros on appeal on June 20, 2007.

CONTENTIONS

After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed August 8, 2007, the clerk of this court advised Higueros to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Higueross counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The order of the trial court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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