Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the Jan. 2000 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of San Joaquin County, No. LF002787A, Robert F. Baysinger, Judge. COUNSEL
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Shirley A. Nelson, Stephen G. Herndon and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CALLAHAN, J.
In December 1995, defendant Isaias Rodriguez Posas pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, section 11378). At defendant's arraignment eight days before his change of plea hearing, he signed a form entitled "Legal Rights of a Defendant Charged With a Felony" which provided in pertinent part: "If you are an alien a conviction of a crime could result in deportation or exclusion from admission to the U.S., or denial of naturalization as a citizen of the U.S." The form further provided: "Do Not Sign This Statement Unless You Fully Understand It[.]" The judge, clerk, or bailiff at the arraignment signed the same form, certifying that "the defendant handed to me the foregoing statement and he stated to me that he did read the foregoing statement and understood the same."
After completing his 16-month prison term, defendant was deported to Mexico in September 1996 as a result of the 1995 conviction. Defendant reentered the United States and was arrested for violating federal immigration law in 1998. The 1995 possession of methamphetamine for sale conviction was charged as an element of the federal offense. Defendant filed a motion to withdraw his plea in the 1995 case in state court, contending that he was not advised of the immigration consequences of his plea pursuant to Penal Code section 1016.5. The trial court denied defendant's motion, finding he was properly advised at his arraignment.
Further undesignated statutory references are to the Penal Code.
Defendant appeals, contending the trial court erred in denying his motion because the written advisement was not given in conjunction with his change of plea and orally confirmed by the judge. We shall affirm the judgment.
Defendant conceded at oral argument that the content of the advisement contained in the arraignment form he signed is sufficient under section 1016.5.
Subdivision (a) of section 1016.5 provides in pertinent part: "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."
" 'In construing statutes, we must determine and effectuate legislative intent.' [Citation.] 'To ascertain intent, we look first to the words of the statutes' [citation], 'giving them their usual and ordinary meaning' [citation]. If there is no ambiguity in the language of the statute, 'then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.' [Citation.] 'Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." [Citation.]' [Citation.]" (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [36 Cal.Rptr.2d 563, 885 P.2d 976].)
Immigration consequences are collateral consequences of conviction; therefore, advisement is not required by In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449] or Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]. (People v. Limones (1991) 233 Cal.App.3d 338, 344 [284 Cal.Rptr. 418].) "So long as the legislative purpose is advanced by having some person acting on behalf of the tribunal actually advise defendant of the immigration consequences of his plea and that advice is reflected 'on the record,' the actual adviser is immaterial." (People v. Quesada (1991) 230 Cal.App.3d 525, 536 [281 Cal.Rptr. 426], disapproved on other grounds in People v. Gontiz (1997) 58 Cal.App.4th 1309, 1316-1317 [68 Cal.Rptr.2d 786].) Indeed, a written advisement may satisfy the requirements of section 1016.5. (People v. Quesada, supra, at pp. 533-537.)
Although the opinion is not yet final, the Fifth District has also held that section 1016.5 does not require a verbal advisement. (People v. Ramirez (1999) 71 Cal.App.4th 519 [83 Cal.Rptr.2d 882].)
Ultimately, section 1016.5 creates two requirements: the defendant must be advised of the immigration consequences of his plea before its entry, and the record must evidence that advisement. Defendant's signature on the arraignment form which contained the immigration advisement and the directive "Do Not Sign This Statement Unless You Fully Understand It," along with the judge's or clerk's certification that defendant stated he understood the form, fulfilled both requirements.
Defendant emphasizes that section 1016.5 provides that "it is the intent of the Legislature in enacting this section to promote fairness to ... accused individuals [who are not citizens] 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." We find nothing unfair in our analysis of section 1016.5. To reiterate, " '[t]he critical issue under section 1016.5 is whether a defendant has been advised that his guilty plea may have immigration consequences.' [Citations.]" (People v. Quesada, supra, 230 Cal.App.3d at p. 536.) The record before us provides ample evidence that defendant was not only adequately advised but understood the immigration consequences of his plea before its entry.
Defendant next contends that our decision in People v. Quesada, supra, 230 Cal.App.3d 525, suggests a contrary result. He is mistaken. In Quesada, we concluded that the record was "sufficient [to meet the requirements of section 1016.5] if ... the advice is recited in a plea form and the defendant and his counsel are questioned concerning that form to ensure that defendant actually reads and understands it." (Id. at p. 536.) Whether the written advisement must be given at the plea proceeding or whether the judge must orally confirm that advisement are issues which were not raised in Quesada's factual context. An opinion must be construed with reference to the facts presented in that case, and the authority of that opinion is coextensive only with such facts. (People v. Superior Court (Moore) (1996) 50 Cal.App.4th 1202, 1212 [58 Cal.Rptr.2d 205].)
Finally, People v. Ector (1965) 231 Cal.App.2d 619 [42 Cal.Rptr. 388], on which defendant relies, is distinguishable. There, the court found the trial court erred in failing to inform the defendant pursuant to section 1018 at his change of plea hearing that he had a right to counsel before accepting his guilty plea. (People v. Ector, supra, at pp. 623-624.) Noting that section 1018 " 'was designed to ensure that a defendant appearing without counsel is aware of his right to counsel at the time he pleads guilty,' " the court declined to find an advisement given at defendant's arraignment was sufficient. (People v. Ector, supra, at p. 624, italics in original.) Section 1018, however, specifically provides: "No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel[.]" (Italics added.) Thus, section 1018 makes clear that the advisement must be given at the change of plea proceeding as the triggering event for the advisement is the defendant's appearance without counsel at that proceeding. The distinction between sections 1016.5 and 1018 is valid: a defendant might misunderstand his right to counsel at a given proceeding, but once informed that a conviction may result in deportation, no defendant could reasonably conclude that consequence will change from one proceeding to the next. The trial court properly denied defendant's motion to withdraw his plea.
The People contend that defendant's motion to withdraw his plea was untimely. As we conclude that defendant's motion was properly denied because he was adequately advised of the immigration consequences of his plea, we decline to address the People's contention.
The judgment (order) is affirmed.
Sims, Acting P. J., and Raye, J., concurred.