Filed 4/21/17 P. v. Lopez CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO LOPEZ,

Defendant and Appellant.


G053378

(Super. Ct. No. 02NF1909)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.

* * *
In 2002 defendant pleaded guilty to two counts of discharging a firearm with gross negligence (Pen. Code, § 246.3), possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)), and possession of an assault weapon (former § 12280, subd. (b), now § 30605, subd. (a)). He admitted the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Defendant admitted three prior strike convictions and a prison prior. The minutes reflect defendant was “advised of the possible consequences of plea affecting deportation and citizenship.” Defendant signed a plea form and put his initials inside a box next to the following statement, “I understand that if I am not a citizen of the United States the conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” On the same form, defendant declared, under penalty of perjury, he “read, understood, and personally initialed” the immigration consequences box. His attorney stipulated the plea form “may be received by the court as evidence of defendant’s intelligent waiver of these rights . . . .” The court struck two of the three strikes and imposed an aggregate prison sentence of 16 years (he faced a maximum of 26 years to life).
Fourteen years later defendant moved to reopen his case and vacate his conviction on the ground he was not given adequate warnings about the immigration consequences of his plea. In particular, defendant contends he should have been advised his plea would result in a forfeiture of “special forms of relief from removal, including Cancellation of Removal and Asylum . . . .” The court issued a detailed ruling denying the motion, finding defendant had been properly advised and that he failed to show prejudice. We affirm.

DISCUSSION

Section 1016.5 provides, “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, 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, “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 the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” “Relief will be granted, however, only if the defendant establishes prejudice. [Citation.] . . . [P]rejudice is shown if the defendant establishes it was reasonably probable he or she would not have pleaded guilty if properly advised.” (People v. Martinez (2013) 57 Cal.4th 555, 559.)
There is no dispute that defendant received the advisement required by section 1016.5. Defendant contends principles of fairness and legislative intent counsel that defendant should have been given a more thorough warning. In particular, defendant relies on section 1016.5, subdivision (d), which provides, “[I]t is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea.”
However, “‘The broad statement of intent in section 1016.5, subdivision (d), and its concern with fairness to the accused, does not override the section’s narrow requirements and precise remedy.’ [Citations.] Nothing in section 1016.5 requires more than an advisement of the three major consequences of a plea that are specified in subdivision (a).” (People v. Arendtsz (2016) 247 Cal.App.4th 613, 618-619.) We agree. Defendant contends the immigration advisement under section 1016.5 should be broadened, but that request should be directed to the Legislature. We are bound by the language of the statute. And here, section 1016.5 requires a specific warning and provides a narrow remedy for the failure to provide that warning. Defendant received the warning, and thus the remedy is unavailable to him.
Moreover, even if further admonitions were required, we would affirm. The court found defendant was not prejudiced, and defendant did not address that issue on appeal. In particular, the court noted defendant was exposed to a sentence of 26 years to life and received the comparatively lighter sentence of 16 years. “[T]he court does not believe defendant would have risked a life sentence had he received different advice concerning immigration consequences.” A showing of prejudice is required to obtain relief under section 1016.5. (People v. Martinez, supra, 57 Cal.4th at p. 559.) Defendant’s failure to establish prejudice precluded relief under section 1016.5.

DISPOSITION

The postjudgment order is affirmed.




IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.