Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A043703, James B. Pierce, Judge. Reversed and remanded with instructions.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
EPSTEIN, P. J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Jose Esparza appeals from an order after judgment denying his motion to vacate his conviction pursuant to Penal Code section 1016.5. He previously pled no contest to attempted murder (Pen. Code, § 664/187) and admitted the allegation that he discharged a firearm from a motor vehicle causing great injury within the meaning of Penal Code section 12022.5, subdivision (5). He contends the court abused its discretion in denying his motion to vacate the judgment based on the court’s failure to accurately advise him of the immigration consequences of his plea. For reasons stated in the opinion, we reverse the order and remand for further proceedings.
Appellant also argues the superior court applied an incorrect standard in ruling on the motion to vacate based on ineffective assistance of counsel. While “affirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel” (see In re Resendiz (2001) 25 Cal.4th 230, 240), a motion under Penal Code section 1016.5 is not the proper vehicle to address a claim of ineffective assistance of counsel. (See People v. Chien (2008) 159 Cal.App.4th 1283, 1290.) “[I]ssues relating to a defendant’s ability to bring a postjudgment ineffective assistance of counsel claim based on immigration consequences are pending before the California Supreme Court in People v. Kim, review granted July 25, 2007, S153183 . . . .” (People v. Chien, supra, 159 Cal.App.4th at p. 1290, fn. 4.)
FACTUAL AND PROCEDURAL SUMMARY
On March 13, 2007, appellant filed a motion to vacate his conviction on the ground that the court failed to advise him of an adverse immigration consequence attendant to the entry of plea as required by Penal Code section 1016.5, subdivision (a). Appellant argued that the court’s admonishment lacked any warning that appellant’s conviction would result in his exclusion from admission to the United States.
A transcript of the proceedings reflects that at the time of taking appellant’s plea, he was advised “that if you’re not a citizen of this country, this could result in your being deported, denied naturalization or amnesty.”
Appellant filed a declaration under penalty of perjury stating in relevant part that on December 11, 1989, he entered a plea of guilty to a violation of Penal Code section 664/187, subdivision (a); he was not an American citizen but was a lawful permanent resident. He was not advised of the immigration consequences of his guilty plea and was not aware that his guilty plea conviction would have the consequence of exclusion from admission to the United States. Consequently, he was surprised and distressed to learn from the INS that due to his conviction for an aggravated felony, he is statutorily ineligible for lawful permanent residency and subject to mandatory exclusion from admission to the United States. In December 2006, he was in custody in Chino, California and placed in INS hold. He also asserted that had he known beforehand that he was bargaining away his legal status he would never have agreed to a plea and would have instead exercised his right to a jury trial.
Appellant also declared that he has lived in the United States for approximately 29 years, since the age of 11, and always considered the United States his home. He always intended to permanently remain in the United States in order to acquire a trade and to provide for his family. Prior to his detention by the INS, he was employed as a machinist and was regarded as a dedicated, hardworking employee and would still be employed with that company were it not for the immigration consequences he now faces. He attached a letter from his employer verifying that he had worked for Center Manufacturing, Inc. from January 17, 2000 through September 8, 2006. He further declared that over the past several years he has provided emotional and financial support for his wife and children. As the primary income earner, his wife and children depended on him for financial support. He also has a sister, brothers, parents, aunts, nephews and a niece all living in the United States. All of his family members are either citizens or lawful permanent residents and will be emotionally devastated if he is permanently excluded from the United States. He has no friends or family in Mexico and would never have bargained away his lawful permanent resident status if properly advised.
The superior court stated it was denying the motion “because of the substantial compliance with the requirement that the defendant be advised of his deportation if he were to enter the plea.”
DISCUSSION
“A motion to vacate the judgment is the equivalent of a petition for a writ of error coram nobis. [Citation.] As such, it is an appealable order. [Citation.] We review a motion to vacate under section 1016.5 for abuse of discretion. [Citation.]” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 172.)
Penal Code section 1016.5 provides in pertinent part, “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime 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. [¶] (b) . . . If, after January 1, 1978, 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. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.”
In People v. Gutierrez, Division Eight of this District discussed the concept of substantial compliance with the requirements of Penal Code section 1016.5 and explained, that exclusion meant “being barred from entry to the United States” and that deportation was “to be distinguished from exclusion, which is the denial of entry to the United States.” (People v. Gutierrez, supra, 106 Cal.App.4th 169, 174.) The court in Gutierrez held that only substantial compliance was required under Penal Code section 1016.5 “as long as the defendant is specifically advised of all three separate immigration consequences of his plea.” (Ibid.) Here, appellant was not advised that his conviction may have the consequence of excluding him from admission to the United States. The only admonishment pertained to deportation, naturalization and amnesty.
We have also reviewed the superior court file and find no written waiver reciting the language of Penal Code section 1016.5. (Cf. People v. Gutierrez, supra, 106 Cal.App.4th 169, 174-175.)
In People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 189-191, the trial court advised the defendant about possible consequences leading to deportation or affecting naturalization but failed to advise the defendant that a conviction resulting from his plea might result in his exclusion from admission to the United States. Our Supreme Court construed Penal Code section 1016.5 to require a defendant seeking relief under subdivision (b) of the statute to demonstrate that he or she was prejudiced by the court’s failure to provide complete advisements. The court concluded that the trial court in granting a motion to vacate had erred “in failing to consider, not only whether it formerly had failed to advise defendant as [Penal Code] section 1016.5 requires and whether, as a consequence of his conviction on the offense to which he pleaded nolo contendere, defendant actually faces one or more of the statutorily specified immigration consequences, but also whether defendant was prejudiced by the court’s having provided incomplete advisements.” (Id. at pp. 199-200.) “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. [Citation.]” (People v. Totari (2002) 28 Cal.4th 876, 884.)
A defendant’s “assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’ [Citations.] ‘In determining whether a defendant, with [competent advice] would have accepted [or rejected a plea] offer, pertinent factors to be considered include: . . . the advice, if any, given by counsel; 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; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.’ [Citation.]” (See In re Resendiz, supra, 25 Cal.4th 230, 253.) The establishment of prejudice, whether but for the failure to advise, appellant would not have entered a guilty plea is a factual question to be resolved by the trial court. (People v. Gutierrez, supra, 106 Cal.App.4th 169, 174.) In the case before us, the trial court did not reach this test of resulting prejudice, having based its decision entirely on “substantial compliance” with Penal Code section 1016.5. The matter, therefore, must be remanded to the trial court to allow appellant to demonstrate that he was prejudiced by the trial court’s failure to provide complete advisements.
In view of our conclusion, we do not address appellant’s claim his plea was not voluntary and intelligent because he was advised his plea “could” result in his deportation rather than deportation was mandatory and a near certainty.
DISPOSITION
The order denying appellant’s motion to vacate the judgment is reversed and the matter is remanded to the trial court to conduct a hearing to allow appellant to demonstrate he was prejudiced by the trial court’s failure to provide complete advisements. If appellant is unable to establish prejudice, the trial court is ordered to reinstate the original order denying appellant’s motion. If, however, appellant establishes that he was prejudiced by the trial court’s failure to provide complete advisements, the trial court must grant the motion to vacate the judgment and order a new trial.
We concur: WILLHITE, J., SUZUKAWA, J.