Filed 5/23/18 P. v. Son CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

SINA SON,

Defendant and Appellant.


E068199

(Super.Ct.No. FSB035897)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant filed a motion pursuant to Penal Code section 1016.5 seeking to vacate his plea conviction based upon a purported lack of advisement of the immigration consequences of his plea. The court denied the motion. On appeal, defendant contends the court erred in denying the motion. We affirm.
I. PROCEDURAL BACKGROUND
On September 16, 2002, the People charged defendant by first amended felony complaint with three counts of arson of the property of others (counts 1, 3, & 4; Pen. Code, § 451, subd. (d)) and one count of arson of a structure or forest (count 2; § 451, subd. (c)). On October 30, 2002, pursuant to a plea agreement, defendant pled guilty to the count 2 offense. As part of the plea agreement, defendant initialed a provision which provided: “I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty . . . .” On November 27, 2002, as provided in his plea agreement, the court dismissed the remaining counts and sentenced defendant to three years of felony probation.
On June 25, 2015, defendant filed a petition for dismissal of his conviction pursuant to section 1203.4. On September 4, 2015, the court granted the request and dismissed his conviction.
On December 27, 2016, defendant filed a motion to reopen his case and vacate his conviction pursuant to section 1016.5 contending he did not receive adequate warning of the immigration consequences of his appeal. On February 21, 2017, the People filed opposition to defendant’s motion.
At the hearing on defendant’s motion on February 28, 2017, the court noted: “The immigration advisal, paragraph 14, is in the plea agreement. And what, I think, lawyers sometimes don’t realize is, when defendants are arraigned, they’re given a waiver of rights and an advisal form at arraignment. The immigration advisal is also in that form. He was advised twice. The motion is denied.”
II. DISCUSSION
Defendant contends the court erred in denying his motion to vacate his conviction because the immigration advisals he received were not in substantial compliance with the requirements of section 1016.5, because there is no record of the court’s oral advisement of those consequences, and because defendant did not meaningfully understand and accept the adverse immigration consequences when entering his plea. We disagree.
“Section 1016.5, subdivision (a), requires a trial court, prior to accepting a guilty, nolo contendere or no contest plea, to administer the following advisement on the record: ‘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.’ Section 1016.5 further provides, ‘If . . . 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 or nolo contendere may have [adverse immigration] consequences . . . the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea . . . and enter a plea of not guilty.’ [Citation.] Our Supreme Court has held, to obtain that relief, the following must be present: the defendant was not properly advised of the immigration consequences of the plea as required by section 1016.5, subdivision (a); there existed, 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 the defendant was prejudiced by the nonadvisement. [Citations.]” (People v. Arendtsz (2016) 247 Cal.App.4th 613, 616-617.)
“The defendant bears the burden of demonstrating prejudice. [Citations.] The accused must prove it was reasonably probable he or she would not have entered a guilty, no contest or nolo contendere plea if properly advised. [Citations.] Our Supreme Court has explained: ‘To that end, the defendant must provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised. It is up to the trial court to determine whether the defendant’s assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances.’ [Citations.] Our review is for an abuse of discretion. [Citations.]” (People v. Arendtsz, supra, 247 Cal.App.4th at p. 617.)
First, defendant personally initialed an advisement which closely mirrors the language required by section 1016.5. It advised him that if he was “not a citizen of the United States, deportation, exclusion from admission to the United Sates, or denial of naturalization may result from a conviction of the offense(s) to which [he] plead . . . .” Defendant, a noncitizen of the United States, initialed the provisions and signed the plea agreement reflecting he had sufficient time to consult with his attorney who had explained “everything” in the plea agreement to him, that he understood the possible consequences of entering the plea, and that he “fully underst[oo]d and adopt[ed] as [his] own each of the statements” in the boxes he initialed.
Second, defendant’s attorney signed the plea agreement reflecting that he “personally read and explained the contents of the . . . declaration to the defendant . . . .” The People attached to their opposition a declaration of counsel who represented defendant during entry of the plea. In that declaration, counsel declared that, although he did not have a specific recollection of the case, it “has always been my professional custom and habit to advise my clients . . . of the possibility of adverse immigration consequences . . . .” (See People v. Dubon (2001) 90 Cal.App.4th 944, 955 [the trial court’s testimony “that his practice was to personally advise the defendant of immigration consequences in each case” was properly considered when determining whether the defendant was properly advised of the immigration consequences of his plea].) Thus, defendant had been adequately advised of the immigration consequences of his plea.
Third, defendant’s contention that the lack of a record showing an oral advisement of the immigration consequences of the plea does not avail him. It was defendant who bore the burden of proof and production on his motion to vacate the plea. Thus, defendant bore the burden of producing a transcript of the entry of the plea. Defendant had more than adequate time to do so. He entered his plea on October 30, 2002. He filed his motion to vacate the plea on December 27, 2016. The court did not hold the hearing on his motion until February 28, 2017. Thus, defendant had more than adequate time to produce a copy of the transcript of the entry of his plea. Moreover, the plea agreement itself is sufficient evidence that he was properly advised of the immigration consequences of his plea. (People v. Araujo, supra, 243 Cal.App.4th at p. 762 [the § 1016.5 advisement can be in writing]; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175 [the court may rely upon a defendant’s validly executed waiver form as substitute for an oral admonishment].)
Fourth, the court acted within its discretion in implicitly discrediting defendant’s self-serving declarations that he did not “believe the Court . . . properly advise[d] [him] that [he] was subject to detention or possible denial of relief, voluntary departure, bar from reentry, or any other [immigration] consequences if [he] pled guilty in this case” and that “[i]f prior counsel or the Court had advised [him] of the immigration consequences triggered by [his] plea, [he] would . . . not have pled guilty. [He] would have gone to trial or negotiated another plea.” (See In re Alvernaz (1992) 2 Cal.4th 924, 945 [petitioner’s self-serving declaration insufficient in and of itself to establish prejudice].)
Fifth, we observe that there is a requirement that a defendant show “reasonable diligence to succeed on a motion to vacate” under section 1016.5. (People v. Totari (2003) 111 Cal.App.4th 1202, 1208.) “‘[T]he trial court may properly consider the defendant’s delay in making his application, . . . if “considerable time” has elapsed between the guilty plea and the motion to withdraw the plea, [since] the burden is on the defendant to explain and justify the delay. [Citation.] The reason for requiring due diligence is obvious. Substantial prejudice to the People may result if the case must proceed to trial after a long delay.’ [Citation.]” (Id. at p. 1207 [delay of 13 years in filing motion could potentially be excused where there was no evidence the defendant had been advised of the immigration consequences of his plea and promptly motioned the court for relief upon deportation].) Here, defendant entered his plea on October 30, 2002, but did not file the motion to vacate the plea until December 27, 2016, more than 14 years later. Moreover, there was evidence that defendant was advised of the immigration consequences of his plea, the declaration defendant initialed and signed himself. Thus, defendant failed to show reasonable diligence in filing the motion to vacate the plea or good cause for excusing the delay.
Sixth, and finally, defendant failed to show prejudice, i.e., that he faced “more than just a remote possibility of deportation, exclusion, or denial of naturalization.” (People v. Shaw (1998) 64 Cal.App.4th 492, 499.) Although the record reflects that defendant is not a citizen of the United States, nothing indicates anything more regarding the likelihood of any adverse immigration consequences being taken against defendant. (Id. at p. 500 [defendant’s “proof of noncitizenship, without more, was insufficient to satisfy his burden under section 1016.5, subdivision (b).”].) Therefore, the court acted within the scope of its discretion in denying defendant’s motion.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

FIELDS
J.