P. v. Jovel

Filed 8/29/07 P. v. Jovel CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Dagoberto Moises Jovel appeals from an order denying his motion to vacate his conviction for attempted second degree robbery (Pen. Code,  664, 211) following his guilty plea in 1993.[1] In 2006, he filed a motion to vacate his conviction claiming that the court failed to advise him of the immigration consequences of his conviction before it accepted his guilty plea. Appellant contends that the trial court erred in denying his motion to vacate his conviction after concluding that he did not establish that he was prejudiced by the lack of proper advisement. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 1993, Nancy Rose was walking in Van Nuys, on Hazeltine, approaching Sherman Way, just before midnight. Rose's friends, including her boyfriend, were less than a block way, on the corner. Appellant approached Rose, put his hand over her mouth, and said he would kill her unless she gave him her money. Rose screamed, pushed appellant away, and threw him to the ground before falling and landing on him. After Rose's friends ran to her, appellant said, "Okay, lady, I give up," and ran away.

On May 6, 1993, appellant pleaded guilty to attempted second degree robbery. The Department of Homeland Security sent appellant a letter on March 7, 2006, indicating that U. S. Citizenship and Immigration Services had determined that, based on his 1993 conviction, he was ineligible for a de novo asylum interview otherwise available pursuant to American Baptist Churches v. Thornburgh (N.D.Cal. 1991) 760 F.Supp. 796.

On July 19, 2006, appellant filed a motion to vacate his conviction on the ground that the court failed to advise him of the immigration consequences of his guilty plea in 1993, as required by section 1016.5, subdivision (a). He submitted a declaration stating that he was neither advised nor aware that his conviction could result in his exclusion from admission to, or deportation from, the United States, or the denial of United States citizenship. He further declared that he had been employed by the same employer since 1993; he alone provided the income for his wife and four young daughters; and he had been in the United States for 17 years and had no friends or family in El Salvador. He also declared that he "would never have accepted a plea if [he had known] that [he] was putting at risk [his] ability to remain in the [United States] as a lawful permanent resident." After noting that his uncorroborated declaration was insufficient to establish the requisite prejudice, the court denied his motion to vacate his conviction.

DISCUSSION

Appellant contends that the trial court erred by concluding that he had not made a sufficient showing of prejudice and denying the motion to vacate his conviction pursuant to section 1016.5. We disagree.

Section 1016.5, subdivision (a) states: "Prior to acceptance of a plea of guilty . . . 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." Subdivision (b) provides that where a court has accepted a plea without advising a defendant according to subdivision (a), the defendant can seek an order to vacate the judgment and permit the defendant to withdraw his plea and enter a not guilty plea.

This court reviews an order denying a section 1016.5 motion to vacate for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).) "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." (People v. Totari (2002) 28 Cal.4th 876, 884.)

Appellant argues that the court applied the incorrect standard in evaluating prejudice. We disagree. In assessing prejudice from a failure to advise of the consequences of the plea, the "'court must determine . . . whether it is "reasonably probable" the defendant would not have pleaded guilty if properly advised.'" (Zamudio, supra, 23 Cal.4th 183, 210.) Appellant acknowledges that in making that assessment, a "court . . . may consider the probable outcome of any trial, to the extent that may be discerned." (In re Resendiz (2001) 25 Cal.4th 230, 254.) However, he suggests that the court below required him to "show that he would have been acquitted had he gone to trial." The record indicates instead that the court properly considered the probable outcome of trial, based upon the evidence, without requiring a showing that appellant would have been acquitted at a trial.

Counsel below argued that according to appellant, the victim "with a group of homeless people, or drug [addicts], assaulted him." Counsel did not offer independent evidence to support appellant's delayed assertion that the victim had assaulted him or to corroborate his claim that he would have pleaded not guilty had he been given the advisements specified in section 1016.5. "Whether defendant was prejudiced by the trial court's incomplete advisements is a factual question, appropriate for decision by the trial court in the first instance." (Zamudio, supra, 23 Cal.4th 183, 210.) In considering that question, the court expressed concern that there was no corroboration of appellant's declaration to show prejudice as a result of his failure to receive section 1016.5 advice before entering his plea. Appellant concedes that an "assertion [that] he would not have pled guilty if given competent advice 'must be corroborated independently by objective evidence.'" (In re Resendiz, supra, 25 Cal.4th 230, 253.)

Here the court relied on the evidence to assess prejudicei.e., "'whether it is "reasonably probable" the defendant would not have pleaded guilty if properly advised.'" (Zamudio, supra, 23 Cal.4th 183, 210.) The victim's 1993 sworn preliminary hearing testimony established that appellant tried to rob her, she pushed him, she screamed, her friend ran to her aid, at which point appellant said he gave up, and then ran away. Before pleading guilty, appellant faced a possible state prison sentence ranging from 16 months to three years, and he presented no evidence that the victim had assaulted him. ( 18, 213, subd. (b).) After pleading guilty, he was placed on probation on the condition that he spend 365 days in county jail. The court acted within its discretion in deciding that appellant was not prejudiced by the lack of section 1016.5 advisements and denying his motion to vacate his conviction.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Martin L. Herscovitz, Judge

Superior Court County of Los Angeles

______________________________

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Marc E. Turchin, Deputy Attorney General, for Plaintiff and Respondent.

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