P. v. Gonzalez
Filed 3/6/07 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JUAN CEBALLOS GONZALEZ, Defendant and Appellant. | E040620 (Super.Ct.No. FCH06574) OPINION |
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed.
George P. Hobson, Jr., for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Keith Lollis, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Juan Ceballos Gonzalez pled guilty to false impersonation. (Pen. Code, 529.)[1] He then moved to withdraw his plea. On appeal, defendant contends the trial court abused its discretion in denying his motion to withdraw his guilty plea. We affirm.
PROCEDURAL BACKGROUND
On August 18, 2005, the prosecution filed an amended information charging defendant with false impersonation ( 529, count 1), identity theft ( 530.5, subd. (a), count 2), and use of false documents ( 114, count 3).
On October 28, 2005, defendant entered a plea agreement, in which he pled guilty to count 1, in exchange for the dismissal of counts 2 and 3 and a grant of felony probation, with one of the conditions being that he serve 364 days in county jail. On the record, the trial court confirmed defendants understanding of the plea agreement. The court also advised defendant that he was giving up his rights to a jury trial, to confront witnesses, to present a defense, and to remain silent. The court further stated the following:
THE COURT: You also understand that if you are not a citizen of the United States, that deportation, exclusion from admission or denial of naturalization will result from a conviction for this offense?
THE DEFENDANT: Yes.
THE COURT: Before I accept your plea, do you have any questions of me or your attorney about the charges youre pleading to or any of the consequences of your plea?
THE DEFENDANT: No.
THE COURT: All right. Youve had enough time to talk to your attorney?
THE DEFENDANT: Yes.
Defendant then entered his guilty plea, and the court accepted it, finding that it was made freely and voluntarily.
On December 28, 2005, defendant moved to withdraw his guilty plea (the motion). He submitted a declaration in support of the motion, in which he stated that he had no opportunity to discuss his rights or defenses with his attorney and that his attorney told him on the day he entered the plea agreement that he had to plead guilty that day or he would go to state prison. At the hearing on the motion, defense counsel argued that under People v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano), defendant was entitled to set aside the plea because he was not properly informed of the specific immigration consequences of the plea. The prosecution argued that defendant was properly advised that he most likely would be deported or excluded as a result of the guilty plea, and that defense counsel was aware of the immigration consequences because he bargained for 364 days in county jail, rather than 365 days, in order to avoid certain immigration consequences. The court noted that defendants declaration did not raise any immigration issues, and that the record clearly indicated that defendant told the court that he had sufficient time to discuss his case with his attorney. The court denied the motion and sentenced him in accordance with the plea agreement.
ANALYSIS
The Trial Court Properly Denied Defendants Motion to Withdraw the Plea
Defendant contends the trial court abused its discretion in denying his motion to withdraw the plea. In support of his contention, he argues that he did not have a chance to discuss his case with his attorney, he was forced to make the decision to either accept one year in county jail or go to state prison, and his counsel failed to advise him of the specific immigration consequences of his plea. We find no abuse of discretion.
Guilty pleas and admissions may be withdrawn before judgment for good cause shown. ( 1018; Soriano, supra, 194 Cal.App.3d at p. 1475.) Mistake, ignorance, fraud, duress, or any other factor overcoming the exercise of free judgment is good cause, but must be shown by clear and convincing evidence. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) A decision to deny a motion to withdraw a guilty plea rests in the sound discretion of the trial court and is final unless the defendant can show a clear abuse of that discretion. (Ibid.)
Contrary to his claim in the motion and on appeal, defendant assured the trial court that he had enough time to go over all of the matters thoroughly and completely with his attorney and that he had no questions. Furthermore, instead of informing the trial court that he felt forced to enter the plea agreement, defendant initialed the plea form stating that no one used any type of force, violence, threats, menace, duress, or undue influence on him to get him to plead guilty.
In addition, the record shows that defendant was advised under section 1016.5 of the three immigration consequences: deportation, exclusion from admission, and denial of naturalization. In nearly the exact language of the statute, his plea form advised him in writing, and the court advised him orally, that these consequences would result from a conviction of the offense to which he was pleading guilty. Defendant initialed and signed the plea form, and he assured the court that he understood the immigration consequences.
Defendant asserts that his motion to withdraw his plea should have been granted because he received ineffective assistance of counsel and simply cites a case for ineffective assistance of counsel. However, he fails to articulate any argument with regard to the facts of his case. We need not consider mere contentions of error unaccompanied by legal argument. (Peoplev.Earp (1999) 20 Cal.4th 826, 884.) Defendant mentions that he had several attorneys appear on his case below, and he was confused as to which attorney was representing him. However, such assertion does not constitute an ineffective assistance of counsel claim.
Defendant then cites Soriano, supra, 194 Cal.App.3d 1470, stating that attorneys are required to advise their clients of the exact immigration consequences of their guilty plea. He argues that he was given the general admonition and not the specific admonition required by People v. Soriano. Assuming arguendo that defendant is claiming that his defense counsel rendered ineffective assistance of counsel under Soriano, such contention is meritless because Soriano is inapposite. In Soriano, the defense counsel merely warned the defendant that his plea might have immigration consequences. (Soriano, supra, at p. 1482.) In the instant case, the record shows that defendant was warned of specific immigration consequences, and further, that defense counsel bargained with the prosecution for 364 days in jail, rather than 365. The technique of obtaining a disposition of 364 days effectively avoids aggravated felony status for immigration purposes, where such status is based on the length of the sentence. (People v. Bautista (2004) 115 Cal.App.4th 229, 240, fn. 8.) In any case, defendants argument fails since he has failed to show that his counsels performance was deficient. (See Soriano, supra, at p. 1479.)
In sum, we conclude that defendant failed to make a sufficient showing at the hearing on the motion to overcome his own statement made at the time his plea was entered that he understood the consequences of his plea. Accordingly, the trial court properly denied defendants motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
