Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA217976, Monica Bachner, Judge.
Brian D. Lerner and Christopher A. Reed, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Elizabeth Sia Yiaba, appeals the denial of her post-judgment motion to vacate or reduce her sentence. Yiaba pled guilty to felony grand theft of property (Pen. Code, § 487, subd. (a)).
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Because Yiaba’s conviction was based on a guilty plea, the record does not reflect the facts of the underlying case.
On February 5, 2002, Yiaba pled guilty in case No. BA217976 to one count of felony grand theft pursuant to a plea bargain in which the trial court sentenced her to state prison for two years, suspended execution of that sentence, and placed her on probation for three years.
In February 2003, Yiaba admitted a probation violation. Her probation was revoked, but it was then reinstated on the condition she serve 86 days in county jail.
On July 29, 2004, probation was terminated when Yiaba was sentenced to state prison in an unrelated criminal proceeding (case No. NA059542).
The Department of Homeland Security initiated removal proceedings against Yiaba in October 2009. On November 19, 2009, Yiaba filed a motion in case No. BA217976 seeking to have her conviction vacated under section 1016.5 or, alternatively, to have her two-year sentence reduced to 364 days nunc pro tunc.
The trial court denied both Yiaba’s section 1016.5 motion and the request to reduce her sentence nunc pro tunc.
CONTENTIONS
1. The trial court erred by finding it lacked jurisdiction to retroactively reduce Yiaba’s sentence.
2. Yiaba’s section 1016.5 motion should have been granted because she was not adequately advised of the immigration consequences of her guilty plea.
DISCUSSION
1. Trial court properly concluded it lacked jurisdiction to alter Yiaba’s sentence.
Yiaba contends the trial court erroneously determined it lacked jurisdiction to amend her sentence nunc pro tunc. This claim is meritless.
In the trial court, the People announced they had no objection to a nunc pro tunc order reducing Yiaba’s sentence to 364 days provided defense counsel could establish the trial court had jurisdiction to issue such an order. The only justification defense counsel could advance was that “[i]t has been done many times.” The trial court ruled it lacked jurisdiction because Yiaba’s probation had already been terminated.
In People v. Borja (2002) 95 Cal.App.4th 481, the trial court issued a nunc pro tunc order reducing a sentence, which had been imposed on Borja as a condition of probation, from 365 to 364 days. The People appealed, arguing the trial court had acted in excess of jurisdiction because Borja’s probation term had expired almost two years before the trial court’s nunc pro tunc order. Borja reversed the nunc pro tunc order: “Initially, we note that a nunc pro tunc order is generally limited to correcting clerical errors; ‘ “a nunc pro tunc order cannot declare that something was done which was not done.” ’ [Citation.] This case does not involve a clerical order. Borja sought a retroactive change in his sentence in order to avoid the immigration consequences; he sought imposition of a sentence different from the one that had been intended, imposed and served.” (Id. at p. 485.) “To permit a court, years after a person has pleaded guilty and the term has been served, to obtain a retroactive order altering the record in a manner so that the conviction could not be later used, violates the Legislature’s clear intent and the rulings of the federal courts that prior convictions be available for future use, including, pursuant to the federal decisions, immigration consequences.” (Id. at p. 487; see also People v. Mendoza (2009) 171 Cal.App.4th 1142, 1158 [following Borja reasoning where defendant was still on probation but had already served the 365-day sentence: “respondent has not provided this court with any authority for the court to change a jail term that has already been served in order to prevent a defendant’s deportation”].)
It appears one way of defending against the adverse immigration consequences of a guilty plea is to “obtain a disposition of 364 days instead of 365 days. That technique is effective as to crimes whose ‘aggravated felony’ status is based on the length of the sentence. [Citation.]” (People v. Bautista (2004) 115 Cal.App.4th 229, 240, fn. 8.)
Yiaba cites no authority that holds, or even suggests, the trial court had jurisdiction to alter her sentence nunc pro tunc. She merely argues that, although “the trial court on its own lacked jurisdiction to alter the terms of [her] plea and resulting sentence, ” the court gained such jurisdiction because it had “the parties’ agreement.” (Italics added.)
This argument fails on two grounds. First, it is clear from the record the People never purported to “agree” with Yiaba that the trial court had jurisdiction to act; the People merely agreed not to oppose the sentence reduction if Yiaba could establish the trial court had legal authority to act. Second, such an “agreement” could not in any case create jurisdiction for the trial court to act. (See Griggs v. Superior Court (1976) 16 Cal.3d 341, 344, fn. 2 [“The parties to a judicial proceeding cannot, either jointly or severally, effectively stipulate or concede that the court either has or lacks jurisdiction to act in the particular matter.”].)
At the time Yiaba asked the trial court to amend her sentence, her probation had been revoked and terminated, and she had been sentenced to state prison by another judge in case No. NA059542. In this situation, the trial court here properly determined it lacked jurisdiction to reduce Yiaba’s sentence nunc pro tunc.
2. Trial court properly denied Yiaba’s section 1016.5 motion.
Yiaba contends the trial court should have granted her section 1016.5 motion to vacate her conviction because she had not been adequately advised of the immigration consequences of her guilty plea. This claim is meritless.
“Penal Code section 1016.5 requires that, before accepting a plea of guilty or nolo contendere to any criminal offense, the trial court must advise the defendant that if he or she is not a United States citizen, conviction of the offense may result in deportation, exclusion from admission to the United States, or denial of naturalization. The statute allows the defendant to move to vacate the judgment if the trial court fails to give the required advisements. In People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 203-204...] we recognized that a motion to vacate a judgment under section 1016.5 may be brought in the trial court after judgment has been imposed.” (People v. Totari (2002) 28 Cal.4th 876, 879
Subdivision (a) of section 1016.5 provides: “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 Zamudio, we recognized that a noncitizen defendant has a ‘substantial right’ to be given complete advisements under section 1016.5.” (People v. Totari, supra, 28 Cal.4th at p. 883.) “To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement. [Citations.]” (Id. at p. 884.)
When Yiaba pled guilty, she was told: “Very importantly, if you are not a citizen of the United States, your plea here will affect your status in this country and will result in your deportation, exclusion from admission into the United States and denial of naturalization. [¶] Do you understand this?” (Italics added.) Yiaba answered yes. Hence, the trial court correctly denied Yiaba’s section 1016.5 motion because “she was... properly advised of the immigration consequences as provided by the statute.” (People v. Totari, supra, 28 Cal.4th at p. 884.)
Yiaba contends that, even if she had been properly advised pursuant to section 1016.5, the admonition was inadequate to protect her rights. She argues “there is a significant difference between knowing and understanding that a plea may ‘affect’ one’s immigration status and knowing and understanding that a plea will result in three specific immigration consequences. Unlike the constitutionally mandated advisements, section 1016.5 is exceptionally vague and only advises defendants of possible immigration consequences. Under these circumstances, a plea of guilty or nolo contendere cannot be considered knowing and voluntary and should not be sustained by this Court.”
But despite Yiaba’s suggestion the Boykin/Tahl rule applies in this context, she cites no authority supporting that proposition. Moreover, as noted ante, in this case Yiaba was actually told the conviction would result in the enumerated immigration consequences, not merely that her conviction might have those consequences.
“Boykin v. Alabama (1969) 395 U.S. 238, 243 and footnote 5 [89 S.Ct. 1709] (for valid guilty plea, due process requires voluntary and intelligent waiver of confrontation right, right to trial by jury, and privilege against compulsory self-incrimination); In re Tahl (1969) 1 Cal.3d 122, 132 (same).” (In re Resendiz (2001) 25 Cal.4th 230, 246, fn. 9, abrogated on another ground in Padilla v. Kentucky (2010) 130 S.Ct. 1473, 1484 [176 L.Ed.2d 284].)
“We have stated that the ‘direct’ consequences of a guilty plea include the range of punishment (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605...), a restitution fine (People v. Walker (1991) 54 Cal.3d 1013, 1022), a mandatory parole term (In re Moser (1993) 6 Cal.4th 342, 351-352) and a sex offender registration requirement (People v. McClellan (1993) 6 Cal.4th 367, 376). In addition to immigration consequences, California courts have called ‘collateral’ the possibility of future use of a conviction to enhance punishment (People v. Bernal (1994) 22 Cal.App.4th 1455, 1457) and that a conviction will serve to revoke an existing probationary grant (People v. Martinez (1975) 46 Cal.App.3d 736, 745).” (In re Resendiz, supra, 25 Cal.4th at p. 243, fn. 7.)
Yiaba suggests the immigration consequences advisement was inadequate because, under federal law, if she returned to the United States after being removed she would be subject to a felony prosecution under title 8 United States Code section 1326(b)(2). However, “[a] defendant need not be advised of the possible future use of a conviction in the event the defendant commits a later crime.” (People v. Bernal (1994) 22 Cal.App.4th 1455, 1457.)
Finally, Yiaba argues that “[w]hile the section 1016.5 advisements may have been adequate when enacted in 1978; today, they are incorrect, inadequate and misleading.” Yiaba’s “out of date” argument is based on her assertion the federal government has “broadened the definition of an aggravated felony dramatically by adding offenses to the list and by reducing the length of the sentence required to convert an offense into an aggravated felony.” But as the Attorney General notes, “Section 1016.5 does not list the criminal offenses for which conviction carries immigration consequences. Rather, it requires that the court straightforwardly warn a defendant entering a plea in any criminal case other than an infraction that upon conviction, he or she could be subject to deportation, exclusion, or denial of naturalization. Accordingly, any changes in federal law broadening... the scope of crimes that might carry such immigration consequences upon conviction would not alter the validity or accuracy of the advisements given under section 1016.5.”
We conclude the trial court did not abuse its discretion by denying Yiaba’s section 1016.5 motion. (See People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 192; People v. Limon (2009) 179 Cal.App.4th 1514, 1517.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.