P. v.Zaldana

Filed 8/28/07 P. v.Zaldana CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Michael S. Luros, Judge. Affirmed.

Berke Law Offices and Robert G. Berke for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

Defendant Antonio Villanueva Zaldana appeals from the denial of his motion to withdraw a guilty plea to a charge of assault with a firearm with great bodily injury. Defendant contends the trial court failed to adequately advise him about the immigration consequences of his plea, as required by Penal Code section 1016.5,[1]and the court abused its discretion in denying his motion to withdraw his plea. We find no error, and affirm.

FACTUAL AND PROCEDURAL SUMMARY

There are two versions of the events that occurred on the morning of June 25, 1995, which led to the underlying charges. The prosecutions theory was that defendant assaulted two persons without provocation. The defendants theory was that he was threatened by the two persons and shot his gun in self-defense. Defendant was charged with two counts of attempted murder and two counts of assault with a firearm. Before the date set for trial, defendant located a witness who corroborated his version of the events.

Defendant accepted a plea bargain, pleading guilty to one count of assault with a firearm in violation of section 245, subdivision (a)(2) with a great bodily injury enhancement under section 12022.7. Pursuant to the plea bargain, imposition of sentence was suspended and defendant was placed on probation for three years, a condition of which was that he serve one year in county jail. Defendant was orally advised of the immigration consequences of his plea and responded that he understood them and did not have further questions.

In 1999, after completing probation, defendant petitioned for expungement of his conviction pursuant to section 1203.4. His motion was denied due to the seriousness of the underlying offense and a probation violation directly related to one of the victims in this case. Later that year, defendant filed a motion to modify probation pursuant to section 1203.3, subdivision (a). As a result of this motion, probation was modified from 365 days in county jail to 364 days. This resulted in a change of defendants classification for immigration purposes, and restored discretion to the immigration judge in deciding deportability. However, in April 2006, defendant was ordered deported.

On July 10, 2006, over 10 years after his guilty plea, defendant moved to vacate the judgment and withdraw his plea pursuant to section 1016.5, subdivision (b). He based his motion on a claim of error in the advisement of immigration consequences. The trial court denied the motion.

This appeal followed.

DISCUSSION

Defendant argues that the trial court abused its discretion in denying the motion to vacate judgment and withdraw plea. Section 1016.5 requires that prior to acceptance of a plea of guilty, the court must advise the defendant of the following: 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.

In order to prevail on a motion to vacate under section 1016.5, subdivision (b), a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by 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. (People v. Totari (2002) 28 Cal.4th 876, 884.)

The admonition in this case, stated to the defendant by the prosecutor, was as follows: If you are not a citizen of the United States, your plea of guilty could mean you could be deported, denied naturalization or not let back in the country should you leave it. When asked if he understood this, defendant replied yes and had no further questions.

Defendant argues his case is similar to People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 188-189. In Zamudio, the court advised defendant of two possible immigration consequences: deportation and denial of naturalization. (Ibid.) However, the court did not state the third possible immigration consequence: exclusion from admission to the United States. (Ibid.) In Zamudio, defendant was not informed of all possible immigration consequences before he made his plea.

In this case, defendant was sufficiently advised about the consequences of his plea. The Supreme Court has recognized that substantial, not literal, compliance with section 1016.5 is sufficient. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174.) Here, instead of saying that one of the consequences could be exclusion from admission to the United States, the prosecuting attorney said the defendant might not be let back in the country should [he] leave it. The meaning of these two phrases is substantially the same; if anything, the admonition as stated by the prosecutor is clearer than the version in the statute. There was compliance with section 1016.5.

Even if defendant was not sufficiently advised about the consequences of his plea, he failed to demonstrate prejudice. On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. (People v.Totari, supra, 28 Cal.4th at p. 884.)

On appeal, defendant argues he would not have pleaded no contest if he had been properly advised of the adverse immigration consequences. He claims he viewed exclusion as the most serious of the immigration consequences which would directly affect his calculations regarding his plea. Although defendant submitted a declaration supporting his motion, he did not say that he would have rejected the plea if differently advised.

Moreover, even if he had made that assertion, it must be corroborated by objective evidence at the time of the plea. (In re Alvernaz (1992) 2 Cal.4th 924, 938.) Of specific importance in establishing prejudice is the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer. (Ibid.) In re Resendiz (2001) 25 Cal.4th 230 (Resendiz) is instructive. In that case, the petitioner faced a maximum total punishment of five years and four months of incarceration while the plea bargain offered only 180 days of local incarceration and three years of probation. (Resendiz, supra, 25 Cal.4th at p. 254.) The court noted that the choice . . . petitioner would have faced at the time he was considering whether to plead, even had he been properly advised, would not have been between, on the one hand, pleading guilty and being deported and, on the other, going to trial and avoiding deportation. While it is true that by insisting on trial petitioner would for a period have retained a theoretical possibility of evading the conviction that rendered him deportable and excludable, it is equally true that a conviction following trial would have subjected him to the same immigration consequences. (Resendiz, supra, 25 Cal.4th at p. 254.)

Similarly, defendant was originally charged with two counts of attempted murder and two counts of assault with a firearm. He was told at the sentencing hearing that had the prosecution chosen to seek the maximum sentence, he would have faced seven years in state prison.[2] Because of the plea bargain, he was given probation with one year in county jail. If defendant had been convicted at trial, he would have been subjected to the same immigration consequences.

Defendant argues that had the case gone to trial, he could have presented a robust defense. Although at the time of the plea bargain, the prosecutor had concluded that one of the victims was likely shot in self-defense, the other was fleeing the scene when he was shot, making self-defense unlikely. Furthermore, defendants witness was described as a very reluctant witness, and it is unclear whether she would have testified at trial.

The factual determinations of the trial court are entitled to great weight . . . when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed. (Resendiz, supra, 25 Cal.4th at p. 249, quoting In re Wright (1978) 78 Cal.App.3d 788, 801.) The trial court suggested the plea bargain was so good that the entire dream team couldnt have accomplished this. The trial court implicitly found that there was no substance to defendants contentions that he would have proceeded to trial had he been properly advised about the immigration consequences. The circumstances support that conclusion. Defendant did not demonstrate he would have rejected the plea bargain if differently advised.

We conclude that the trial court properly denied the motion to vacate judgment and withdraw plea because there was substantial compliance with section 1016.5, and defendant failed to establish prejudice.

DISPOSITION

The order denying the motion to vacate judgment and withdraw guilty plea is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] All further statutory references are to the Penal Code.

[2] In 1995, section 664, subdivision (a), provided that the sentence for two attempted premeditated murder convictions was two life terms in state prison with the possibility of parole. In cases involving plea bargains that the defendant has accepted, reversal is generally required only if the court fails to inform the defendant of information that makes the plea bargain less attractive than it appeared to be without the omitted information. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 734.) Had defendant been properly advised that the crimes as charged would have led to a far greater term, the plea bargain would have been even more attractive. The fact that defendant was misinformed about his sentence is harmless error.