Opinion
B316852
10-04-2022
THE PEOPLE, Plaintiff and Respondent, v. ARNULFO HERNANDEZ LAZARO, Defendant and Appellant.
Law Office of Zulu Ali &Associates, Zulu Ali and Karin Khachatorian for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA093425, Lee W. Tsao, Judge. Affirmed.
Law Office of Zulu Ali &Associates, Zulu Ali and Karin Khachatorian for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
KELLEY, J. [*]
Defendant and appellant Arnulfo Hernandez Lazaro (real name Arnulfo Lazaro Hernandez) appeals from an order denying his motion under Penal Code sections 1473.7 and 1016.5 to vacate his 2006 conviction for possession of cocaine and driving under the combined influence of alcohol and a drug. In his motion, he contended his conviction was legally invalid because his trial counsel failed to adequately advise him about the immigration consequences of his guilty plea and he was prejudiced as a result. The trial court denied the motion. The court heard testimony from Lazaro and his trial counsel, and concluded that Lazaro's claim that he did not understand the consequences of his plea was not credible. We affirm.
All further undesignated section references are to the Penal Code unless otherwise indicated.
BACKGROUND
A. Lazaro is Criminally Charged in 2006 and Pleads Guilty
On January 18, 2006, Lazaro was charged with possession of a controlled substance (cocaine) under Health and Safety Code section 11350, subdivision (a); driving under the combined influence of alcohol and a drug in violation of Vehicle Code section 23152, subdivision (a); and driving with a blood alcohol level of 0.08 percent or higher in violation of Vehicle Code section 23152, subdivision (b).
Lazaro had been arrested on January 6, 2006, and had posted bail on January 11, 2006.
Lazaro decided to accept a plea offer, under which he would be placed on formal probation for three years, with the conditions that he spend two days in jail (and receive credit for time served), perform 80 hours of "CalTrans" work, and pay various fines, fees and assessments. On February 17, 2006, Lazaro signed a "Felony Advisement of Rights, Waiver, and Plea Form" documenting the plea agreement, and placed his initials by various acknowledgments. One of those acknowledgments related to the immigration consequences of his plea: "Immigration Consequences - I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty."
On that day, February 17, 2006, Lazaro appeared for an early disposition hearing, which was immediately followed by a sentencing hearing after Lazaro announced to the court that he was accepting a plea deal. The minute order regarding the early disposition hearing states in two separate entries that Lazaro was advised of the immigration consequences of his plea as follows: "If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Lazaro withdrew his plea of not guilty and entered guilty pleas to counts 1 and 2, and the third count was dismissed. The minute order states "Defendant requests immediate sentence."
The trial court sentenced Lazaro in accordance with the plea deal: Lazaro was placed on formal probation for three years, on several conditions, including that he serve two days in jail, pay various assessments, fees and fines, and perform 80 hours of "CalTrans" work. Lazaro was given credit for two days of jail time served, so he was not required to actually serve any additional jail time.
The transcript of the February 17, 2006, proceedings includes acknowledgments by Lazaro that an interpreter had translated the plea form from English to Spanish for him and that he understood what the interpreter was reading to him. When asked "Did you have enough time to talk to your lawyer about this case?" he responded "Yes." The transcript also includes an advisement by the prosecutor of the consequences of the plea deal as follows: "If you are not a citizen of the United States, your conviction here will result in your deportation, exclusion from admission to the United States, denial of naturalization." Lazaro indicated he understood.
The transcript of this hearing was not a part of the original reporter's transcript. However, the court granted the People's motion to augment the record on appeal to include the transcript.
The transcript also shows the prosecutor advised Lazaro that a conviction for violating Health and Safety Code section 11350, subdivision (a) would result in a sentence of 16 months, two years or three years in prison, and a conviction for violating Vehicle Code section 23152, subdivision (a) would result in a sentence of six months in jail. The prosecutor then told Lazaro "[i]f you violate the terms and conditions of your probation, you may be brought back to court and at that time sentenced to up to three years and six months in the state prison."
B. Motion to Dismiss
On March 15, 2016, Lazaro filed a petition under section 1203.4 to have his conviction under count 1 (violation of Health & Saf. Code, § 11350, subd. (a)) dismissed. The court granted the petition on April 5, 2016, dismissing count 1; the court concluded that Lazaro was not eligible for any relief regarding count 2.
C. Initial Motion to Vacate Conviction
On September 26, 2018, Lazaro filed a motion to reopen his case and vacate conviction in which he sought to have his conviction under count 1 (violation of Health &Saf. Code, § 11350, subd. (a)(1)) dismissed under section 1473.7. According to the brief, Lazaro entered the United States in 1984, at the age of 28, from Oaxaca, Mexico; Lazaro met his wife in the United States and he has two daughters and a son, who are United States citizens; Lazaro had been working construction for approximately the past 18 years. The brief stated, "Defendant has been placed in removal proceedings and has been ordered removed due to his conviction. The type of crime that defendant plead [sic] guilty to is a crime involving a controlled substance pursuant to 8 [United States Code section] 1182(a)(2)."
The motion was based on the allegation that Lazaro "was not informed of immigration consequences resulting from the plea including ineligibility for cancellation of removal, asylum, or voluntary departure." Lazaro submitted his own declaration in support of the motion, which includes the following statements:
"5. I believe that the public defender did not properly inform me of the immigration consequences that would accompany my plea.
"6. I believe the [c]ourt did not properly advise me that I was subject to detention or possible denial of relief, voluntary departure, bar from reentry, and/or any other consequences if I pled guilty in this case.
"7. As a result of the plea, I am ineligible for cancellation of removal, asylum, adjustment of status, or any beneficial immigration status.
"8. If prior counsel or the [c]ourt had advised me of the immigration consequences triggered by my plea, I would not have entered my plea. I would have retained an attorney and taken my case to trial, negotiated for an alternative plea. Furthermore, I would have served additional time in custody if it meant that I would be protecting my immigration status."
The hearing on the motion was continued several times and then, on June 7, 2019, Lazaro filed a supplemental motion in support of motion to withdraw guilty plea and vacate conviction. In this motion, also brought under section 1473.7, Lazaro sought to have count 1 dismissed based on his claim that his own error had caused him to misunderstand the consequences of his guilty plea. Specifically, the motion asserted that Lazaro erroneously believed he could eliminate the immigration consequences of his guilty plea by expunging his plea to violating Health and Safety Code section 11350. Lazaro's motion to vacate his guilty plea was denied on June 19, 2021, without prejudice.
In 2018, the Legislature amended section 1473.7 to expressly state that "[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (Stats. 2018, ch. 825, § 2.) The amendment and its impact were discussed in People v. Camacho (2019) 32 Cal.App.5th 998, 1006, and Lazaro indicated he was submitting the supplemental motion in light of the Camacho case.
This specific claim was not included in the declaration Lazaro submitted with the original motion to vacate; no supplemental or additional declaration from Lazaro was submitted in support of the supplemental motion.
D. Motion to Vacate Conviction under Sections 1473.7 and 1016.5
On November 3, 2020, Lazaro filed another motion to reopen his case and vacate the conviction. This motion was brought under sections 1473.7 and 1016.5. Lazaro contended in the motion that he agreed to plead guilty without being made aware of the immigration consequences of the plea. The motion stated that Lazaro was in removal proceedings due to his conviction, and was seeking to adjust his immigration status, but was not eligible for cancellation of removal, asylum, adjustment of status or any "benefitable immigration status." Lazaro contended in the motion that his attorney failed to provide proper advice regarding the immigration consequences of his guilty plea, and he argued that, when a criminal defendant asks their attorney about the immigration consequences of a plea deal, or the attorney offers advice, the attorney has a duty to perform adequate research to provide accurate advice. In support of the motion, Lazaro submitted a copy of the declaration he had signed in September 2018 and submitted in support of his initial motion to vacate his guilty plea.
Although the motion was based on section 1016.5, it did not include any discussion of that section or any argument of how section 1016.5 was violated.
The trial court held a hearing on the motion on December 1, 2021. Lazaro's trial counsel, Deputy Public Defender Mark DiSabatino, testified that due to the passage of time he had no recollection of representing Lazaro. However, he testified that he would have advised Lazaro of the consequences of a guilty plea. DiSabatino testified that his habit and practice was to go over the felony advisement of rights, waiver, and plea form line by line and word for word and when an interpreter is used the interpreter goes over the form in his presence. DiSabatino referred to this form as the Tahl form. (See In re Tahl (1969) 1 Cal.3d 122.) We will also use that reference for simplicity of expression. (See People v. Lopez (2021) 66 Cal.App.5th 561, 567 [using "Tahl form" to refer to an advisement and waiver of rights for a felony plea form].) DiSabatino indicated that his habit and practice was to ask the client if they have any questions and also have the interpreter ask if there are any questions, and he would answer any questions raised by the client.
Lazaro testified that he had a discussion with the interpreter about his immigration status, but not with his attorney. He testified that his attorney asked if he was a citizen and whether he was undocumented or not, but that he did not have a chance to talk about the immigration consequences of a guilty plea. Lazaro testified that his attorney did not tell him he would be deported because of his guilty plea, or speak with him about any immigration-safe pleas. Lazaro stated that he was in removal proceedings, and had an appointment with Immigration and Customs Enforcement the following week. Lazaro testified that he agreed to take the plea bargain "to get the consequences over with." When asked why he had moved to withdraw his guilty plea, Lazaro testified that he wanted "to see if I have some immigration benefits."
On cross-examination, Lazaro confirmed that he had signed and initialed the felony advisement of rights, waiver, and plea form. Lazaro testified that the interpreter read to him the paragraph regarding immigration consequences, but he did not understand it and his attorney did not ask if he had any questions. Lazaro explained that he did not ask the interpreter about the paragraph regarding immigration consequences because he was scared of "[t]he consequences of deportation." After Lazaro said this, the prosecutor asked, "and the interpreter told you that this would happen to you if you entered your plea; isn't that correct?" and Lazaro responded "Yes." Lazaro also testified that, at the hearing when he pled guilty, he spoke through an interpreter with another attorney who advised him that he would be deported.
The trial court denied the motion at the hearing, finding that Lazaro had not met his burden. The court explained on the record that "Mr. Lazaro indicates that he did not speak with his attorney about the immigration consequences, but the record that is before me indicates otherwise. And I find that Mr. Lazaro's claim to the contrary is not reliable and is not credible. He was advised in court of the immigration consequences and he said that he understood them."
DISCUSSION
A. Lazaro's Motion to Vacate His Guilty Plea Under Section 1473.7
1. Legal Principles and Standard of Review
Lazaro brought his motion under section 1473.7, subdivision (a)(1), which provides that "[a] person who is no longer in criminal custody may file a motion to vacate a conviction or sentence" where "[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel."
An amendment to section 1473.7, which took effect on January 1, 2022, replaced "plea of guilty or nolo contendere" with "conviction or sentence." (Assem. Bill No. 1259 (2021-2022 Reg. Sess.) § 1.) This revision has no impact on this case, as Lazaro is seeking to vacate a conviction resulting from a guilty plea.
"A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant's ability to meaningfully understand the actual or potential immigration consequences of a plea." (People v. Vivar (2021) 11 Cal.5th 510, 517.) To demonstrate prejudicial error under section 1473.7, a former defendant must establish, by preponderance of the evidence, "a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences." (Id. at p. 529.)
On appeal from a ruling on a section 1473.7 motion, we apply independent review. (People v. Vivar, supra, 11 Cal.5th at p. 527.)
" '[U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law.' (In re George T. (2004) 33 Cal.4th 620, 634 ....) When courts engage in independent review, they should be mindful that' "[i]ndependent review is not the equivalent of de novo review ...."' (People v. Jackson (2005) 128 Cal.App.4th 1009, 1021 ....) An appellate court may not simply second-guess factual findings that are based on the trial court's own observations. (See In re Ernesto H. (2004) 125 Cal.App.4th 298, 306 . . .; cf. George T., supra, 33 Cal.4th at p. 634 [under a de novo standard,' "a reviewing court makes an original appraisal of all the evidence" '].)" (People v. Vivar, supra, 11 Cal.5th at p. 527.)
2. Analysis
Lazaro contends that his guilty plea should be vacated because of his" 'own error . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.'" As the court explained in People v. Mejia (2019) 36 Cal.App.5th 859, section 1473.7 had been interpreted to require the former defendant to prove ineffective assistance of counsel, "[b]ut effective January 2019, the Legislature clarified: 'A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.'" (Mejia, supra, at pp. 861-862.) Thus, a former defendant can obtain relief under section 1473.7 by showing his or her own mistake caused them to misunderstand the consequences of their guilty plea on their immigration status, and they would not have accepted the plea if they had known of the consequences.
Lazaro claims that he and his trial counsel did not discuss the consequences of his guilty plea on his immigration status.
Lazaro's motion stated that his attorney told him he might be deported but did not tell him he would be subject to mandatory deportation, but this detail is not included in Lazaro's declaration. Lazaro's declaration states, in relevant part, "I believe that the public defender did not properly inform me of the immigration consequences that would accompany my plea."
Lazaro argues "[i]t is inconceivable that [he] knew the full extent of deportation and what that entails when not informed of the full effects of immigration consequences by counsel or the court."
The record, however, shows that Lazaro was informed, through the Tahl form and by the prosecutor in court before he accepted the plea deal, that his guilty plea "will result" in his deportation, exclusion from the United States and denial of naturalization. The transcript of the 2006 hearing shows that the prosecutor told Lazaro "If you are not a citizen of the United States, your conviction here will result in your deportation, exclusion from admission to the United States, denial of naturalization," and Lazaro indicated he understood.
The transcript was obtained by the People during this appeal, and we granted their motion to augment the record. Thus, the transcript was not available to the trial court. However, we conclude the trial court's factual finding that Lazaro understood the immigration consequences of his guilty plea is supported by substantial evidence even without the transcript.
Lazaro admitted in his testimony that he signed and initialed the Tahl form and that the interpreter read to him the paragraph regarding immigration consequences, but he claims he did not understand what was read to him and his attorney did not ask if he had any questions. Lazaro explained that he did not ask his interpreter about the paragraph regarding immigration consequences because he was scared of "[t]he consequences of deportation."
The trial court found that Lazaro's claim that he did not understand what he was being told was not credible, and it concluded that Lazaro was aware of the consequences of his guilty plea on his immigration status. On appeal, we defer to the trial court's credibility determination, which was made after Lazaro testified in person before the trial court. (See People v. Vivar, supra, 11 Cal.5th at pp. 527-528 ["In section 1473.7 proceedings, appellate courts should similarly give particular deference to factual findings based on the trial court's personal observations of witnesses"].) Moreover, the record shows that Lazaro was advised in at least two ways that his guilty plea would result in his deportation, through the Tahl form and the advisement by the prosecutor. Finally, the trial court's finding is supported by Lazaro's own testimony, in which he acknowledged he was aware from the statement read to him by the interpreter that deportation was at least a possible consequence of his guilty plea.
Lazaro contends in his brief that trial counsel was not present when the interpreter read the Tahl form to him. However, his testimony on this point was conflicting and equivocal. He testified that he met with the interpreter, but not his attorney, before he took the plea agreement but he also testified that his attorney asked him, before he took the plea, whether he was a citizen and whether he was documented or undocumented. The attorney, DiSabatino, testified that it was his practice to go over the Tahl form with his client line-by-line and then have the interpreter do it again, and then he would have the interpreter ask his client if they had any questions and he would answer any questions; after that, he would sign the form and have his client sign. During the 2006 plea hearing, the prosecutor asked Lazaro whether he had "enough time" to talk with his lawyer about the case, and he replied "yes."
There is no objective evidence that Lazaro did not understand the consequences of his guilty plea. He did not raise any concerns about his immigration status with either his trial counsel or the court at any point. Furthermore, under the circumstances, it was conceivable that Lazaro accepted the plea deal even though he knew it would have immigration consequences. He was out of custody and the plea deal resulted in no additional time in custody. There is no indication that Lazaro could have obtained a plea deal that would not have impacted his immigration status.
While Lazaro argues that it was his own error that caused him to not realize the consequences of his guilty plea, he also suggests that his trial counsel had an obligation to provide advice about the consequences of his guilty plea. However, at the time of the plea in 2006, a criminal defense attorney did not have an affirmative duty to advise a defendant about the immigration consequences of a guilty plea absent an inquiry from the defendant. There was a significant change in the law in 2010 when the United States Supreme Court issued its decision in Padilla v. Kentucky (2010) 559 U.S. 356 (130 S.Ct. 1473, 176 L.Ed.2d 284). However, before Padilla, "unless there [was] an inquiry by a defendant, counsel could generally rely on the court's immigration advisement." (People v. Mejia, supra, 36 Cal.App.5th at p. 867.) Thus, even assuming Lazaro's trial counsel did not discuss the immigration-related consequences of his plea with him, there was no ineffective assistance of counsel.
Lazaro points out there is no evidence in the record that trial counsel attempted to negotiate an immigration-safe plea. But there is no indication that an immigration-safe plea could have been negotiated. There is no evidence in the record concerning any plea negotiations, what other crimes Lazaro could have pled guilty to, or the strength of the case against Lazaro. It was Lazaro's burden to prove the facts supporting his motion.
Lazaro cites People v. Rodriguez (2021) 60 Cal.App.5th 995 in support of his argument, but the court in that case did not hold that trial counsel should have negotiated a plea that avoided immigration consequences. To the contrary, the defendant's first trial counsel had negotiated such a plea deal and had informed the defendant that the plea would avoid immigration-related consequences. (Id. at p. 1004.) At issue was whether, after circumstances changed because the defendant was convicted on another charge in a different county, he was aware that his sentence which ultimately resulted from the plea deal would result in his deportation. (Id. at pp. 1004-1005.)
Relying on People v. Lopez, supra, 66 Cal.App.5th 561, Lazaro argues that reading the Tahl form and being advised in court that a guilty plea will result in deportation are "pro forma" or generic advisements that are not substitutes for specific advice from counsel. This argument fails because, as stated above, at the time of Lazaro's plea his trial counsel had no obligation to provide specific advice regarding the immigration consequences of a guilty plea, absent an inquiry from Lazaro.
In Lopez, in reviewing the Tahl form the defendant initialed not only the boxes where he was supposed to, but also the boxes for his attorney, the prosecutor and the interpreter (no interpreter was actually used), which suggested he did not understand the form and was not guided through it by counsel. (People v. Lopez, supra, 66 Cal.App.5th at p. 578.) The court also found that the defendant's attorney could have, but failed to, negotiate a plea deal for a different charge that would not have impacted the defendant's immigration status. (Id. at p. 580.)
Sections 1016.2 and 1016.3, which became effective on January 1, 2016, imposed various statutory duties on criminal defense counsel, including to "provide accurate and affirmative advice about the immigration consequences of a proposed disposition." (§ 1016.3, subd. (a).) Sections 1016.2 and 1016.3 are not retroactive. (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116; see People v. Lopez, supra, 66 Cal.App.5th at p. 564 [court notes, "[s]ince 2016, criminal defense attorneys in California have had a statutory duty to 'provide accurate and affirmative advice' about potentially adverse immigration consequences of any plea agreement"].)
Based on our independent review of the record, and giving proper deference to the trial court's credibility finding, we conclude the trial court properly denied Lazaro's motion under section 1473.7 because Lazaro had not shown, by a preponderance of the evidence, any error that damaged his "ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences." (Id., subd. (a)(1).)
B. Lazaro's Motion to Vacate His Guilty Plea under Section 1016.5 1. Legal Principles and Standard of Review
Section 1016.5, subdivision (a), requires the following admonishment be given to any defendant entering a guilty plea: "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."
Under section 1016.5, subdivision (b), the court shall vacate a defendant's guilty plea if the defendant files a motion demonstrating that: (1) the court taking the plea failed to advise the defendant of the immigration consequences as required in subdivision (a); (2) because of the conviction, the defendant actually faces at least one of the immigration consequences specified in subdivision (b); and (3) the court's failure to provide a proper advisement prejudiced the defendant. (§ 1016.5, subd. (b); People v. Totari (2002) 28 Cal.4th 876, 884; see People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 [court "constru[es] [§] 1016.5 to require that defendants, in order to obtain relief under [subd.] (b) of the statute, demonstrate they were prejudiced by any failure of the court to provide complete advisements under [subd.] (a)"].)
A trial court may advise a defendant orally or through a validly executed waiver form. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521.) The advisement may be administered by "any of the numerous individuals acting on behalf of [the court], including the judge, counsel, the court reporter, or the clerk." (People v. Quesada (1991) 230 Cal.App.3d 525, 535-536.) "The advisement need not be in the exact language of section 1016.5." (People v. Araujo (2016) 243 Cal.App.4th 759, 762.)
"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." (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 210.) The issue is" 'whether it is "reasonably probable" the defendant would not have pleaded guilty if properly advised.'" (Ibid.) "To that end, the defendant must provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised. It is up to the trial court to determine whether the defendant's assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances." (People v. Martinez (2013) 57 Cal.4th 555, 565.)
The trial court's ruling on a motion under section 1016.5 is reviewed for abuse of discretion. (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 192.) To establish an abuse of discretion, defendant must show that it was exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 Cal.App.4th 1514, 1518.) We uphold the trial court's reasonable inferences and resolution of factual conflicts if supported by substantial evidence, viewed in the light most favorable to the ruling, and we accept the court's credibility determinations. (People v. Quesada, supra, 230 Cal.App.3d at p. 533.)
2. Analysis
The trial court did not abuse its discretion in denying Lazaro's motion under section 1016.5 because the evidence establishes that Lazaro was advised by both the prosecutor and the Tahl form of the three potential immigration consequences included in section 1016.5, namely, deportation, exclusion and denial of naturalization.
Lazaro makes several arguments as to why he is entitled to relief under section 1016.5, but none have any merit.
Lazaro's motion to the trial court did not raise any of the issues he now raises on appeal, and in fact it did not present any arguments regarding section 1016.5. As a result, he has forfeited these arguments. (People v. Smith (2001) 24 Cal.4th 849, 852.) Nonetheless, we will address the points raised in Lazaro's brief.
Relying on People v. Ruiz (2020) 49 Cal.App.5th 1061 and People v. Patterson (2017) 2 Cal.5th 885, Lazaro argues that the use of "may" in the advisements is improper. This argument is without merit, as the evidence shows the advisements he was given used the term "will" instead of "may." Furthermore, section 1016.5 itself approves of the use of "may" and neither Ruiz nor Patterson involved a motion under section 1016.5.
Lazaro next argues that the People did not carry their burden to show he was given the advisements required in section 1016.5. In support of this argument, he contends the record does not include a transcript showing the advisement was given and, while he concedes a minute order can be used as evidence, he contends the minute order does not show he was advised of the immigration-related consequences of his guilty plea. Lazaro's first contention fails, as the record has been augmented to include the original transcript, which shows the advisement was given by the prosecutor. His second contention also fails because the minute order specifically references the advisement of immigration-related consequences. In addition, the record contains the Tahl form, which includes the advisement. Moreover, any presumption that Lazaro was not provided the advisement was overcome by his own testimony that he was given the advisement.
Section 1016.5, subdivision (b) provides that "[a]bsent 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. Dubon (2001) 90 Cal.App.4th 944, 955, the court held that a minute order is a "record" within the meaning of this provision.
Lazaro further argues that the advisements he received did not comply with section 1016.5 because the phrase "pursuant to the laws of the United States" was not included, so it was unclear that he would suffer immigration consequences under federal law. We conclude the trial court which accepted Lazaro's plea substantially complied with section 1016.5. (See People v. Gutierrez (2003) 106 Cal.App.4th 169, 174 ["We hold here that only substantial compliance is required under [§] 1016.5 as long as the defendant is specifically advised of all three separate immigration consequences of his plea"].) The advisements given to Lazaro conveyed that he would suffer the three immigration consequences referenced in section 1016.5-deportation, exclusion and denial of naturalization. Omitting "pursuant to the laws of the United States" does not diminish any of these consequences. Lazaro argues that if a defendant believes these consequences are based on state law, then they might believe the court had the power to nullify the consequences. This is speculation, and there is no evidence that Lazaro himself believed the court had the power to nullify the immigration consequences.
Finally, Lazaro's motion failed for the additional ground that, as the trial court implicitly found, Lazaro had not been prejudiced by any inadequate advisement because he actually understood the consequences of his guilty plea on his immigration status. Substantial evidence supports this finding.
On this record, the trial court did not abuse its discretion in declining to set aside Lazaro's guilty plea under section 1016.5.
DISPOSITION
We affirm the trial court's denial of Lazaro's motion to vacate his guilty plea.
We concur: ROTHSCHILD, P.J., CHANEY, J.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.