Opinion
G044660
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. VICTOR GARCIA DE LA ROSA, Defendant and Appellant.
John R. Alcorn for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. C-84659)
OPINION
Appeal from a postjudgment order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Dismissed.
John R. Alcorn for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Victor Garcia De La Rosa appeals the denial of his October 2010 motion to vacate the judgment following his 1991 guilty plea to two counts of child molestation. De La Rosa argues his trial counsel was ineffective because he did not advise him that if he pled guilty, he would be deported. As we explain below, De La Rosa failed to obtain a certificate of probable cause, and we dismiss his appeal.
FACTS
In April of 1991, De La Rosa plead guilty to two counts of molesting his daughters in violation of Penal Code section 288, subdivision (a), on a Boykin/Tahl form. De La Rosa initialed the box that states, "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." He also initialed the box that states, "I have personally initialed each of the above boxes and discussed them with my attorney."
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The Boykin/Tahl form and minute order indicate an interpreter was present. The minute order also indicates De La Rosa was advised of the immigration consequences of his guilty plea. Trial counsel also signed the Boykin/Tahl form indicating he explained to De La Rosa each of the rights listed on the form, and the immigration consequences of a guilty plea was one of the items listed on the form.
In October 2010, De La Rosa filed a motion to vacate the judgment on the grounds his trial counsel did not advise him of the immigration consequences of his guilty plea. After a hearing on the motion, the trial court denied the motion. De La Rosa appealed.
DISCUSSION
De La Rosa argues his 1991 guilty plea was obtained in violation of his federal constitutional rights because his trial counsel did not advise him of the immigration consequences of his guilty plea. De La Rosa asserts he was prejudiced because "he would not have accepted the guilty plea had he been properly advised." The Attorney General responds we should dismiss the appeal because De La Rosa did not obtain a certificate of probable cause. De La Rosa did not file a reply brief. As we explain below, we agree with the Attorney General.
Penal Code section 1237.5 provides that a defendant may not appeal a judgment of conviction entered on a plea of guilty or nolo contendere without obtaining a certificate of probable cause from the trial court, unless the appeal is based solely upon grounds occurring after entry of the plea and which do not challenge its validity. In People v. Placentia (2011) 194 Cal.App.4th 489, 494, the court held a defendant must obtain a certificate of probable cause to challenge whether the trial court failed its statutory duty to advise a defendant of the immigration consequences of a guilty plea because "the immigration consequences of a plea of guilty or nolo contendere . . . necessarily precedes the entry of the plea and affects the validity of the plea."
Penal Code section 1016.5, subdivision (a), requires the trial court to advise a defendant a guilty plea may have immigration consequences.
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De La Rosa states he would not have pled guilty had he known the immigration consequences of his guilty plea. Clearly, he challenges the validity of his plea. The fact De La Rosa's notice of appeal states the "appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea[]" is unpersuasive. (Id. at p. 494 [cannot circumvent Penal Code section 1237.5 by placing different label on motion].) Nor does the fact he argues his defense counsel was ineffective. (People v. Johnson (2009) 47 Cal.4th 668, 683-685 [claim of ineffective assistance of counsel does not obviate need for certificate of probable cause].) A claim of ineffective assistance of counsel on a silent record is more appropriately litigated in a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.
DISPOSITION
The appeal is dismissed.
O'LEARY, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.