PEOPLE v. MARTINEZ

Appellant’s Petition for Review

Cal.January 19, 2012

LU, i SUPREME COURTNO. 8199495 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, vs. RODRIGO MARTINEZ MARTINEZ, Defendant and Appellants Court of Appeal No. H036687 (Santa Clara County Superior Court Case No.: 156569) ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA HONORABLE ANDREA BRYAN,JUDGE PRESIDING APPELLANT’S PETITION FOR REYUBAKWE COURT FILED JAN 19 2012 Frederick «. Ohiricn Cierk Deputy SARA E. COPPIN (State Bar. No. 245952) In association with THE SIXTH DISTRICT APPELLATE PROGRAM 11075 Treehenge Lane Auburn, CA 95602 (530) 401-6891 (phone) Counsel for Appellant TABLE OF CONTENTS ISSUE PRESENTED FOR REVIEW uu..cccccccecccessscscseseceesceseavscsecasseseees 2 NECESSITY FOR REVIEW ou... .ccccccsssesssssesssescsssesssessevevseevecesassesesavavsenvess 2 STATEMENTOF THE CASEoo... ccecccscssssessscsescesscseesssscsecsesertsvavacssseseseseees 6 STATEMENTOF PACTS oo. ecccccccescsescsssesecescscsescsssavscsseetssseevatsceesecevees 7 ARGUMENT o...ccccccccccsetesesesesesessseseescsesessussesscecssvessssvavesavasensssessssevavecess 8 THIS COURT SHOULD GRANTREVIEW TO RESOLVE THE CONFLICT BETWEEN THE DECISION BELOW AND THE COURT OF APPEAL’S DECISION IN PEOPLE V. CASTRO VASQUEZ, ABOUT WHETHER THE LIKELIHOOD OF SUCCESS AT TRIAL CAN BE DETERMINATIVEOF WHETHER A DEFENDANT WASPREJUDICED BY A TRIAL COURT’S FAILURE TO DELIVER PENAL CODE SECTION 1016.5 ADVISEMENTS, AND TO INSTRUCT LOWER COURTS TO CONSIDER THE POSSIBILITY OF OBTAINING AN IMMIGRATION-NEUTRAL DISPOSITION AS A FACTOR IN ASSESSING PREJUDICE IN THE PENAL CODE SECTION 1016.5 CONTERT. oo ccceceeecesssesceessscssscsesscasacscasataaseasusssseessesees 8 A. Focusing Only On a Likelihood of Success At Trial Cannot Be the Appropriate Test for Assessing Prejudice in the Context of a Section 1016.5 Motion, Where the Correct Inquiry Involves Determining What A Properly Warned Defendant Would Have Done, And Success AtTrial May Have Been Only One Factor Considered By the Defendant.. 9 B. Courts Must Consider Evidence That An Immigration- Neutral Alternative Disposition Could Have Been Available To A Defendant Had He Been Made Awareofthe Possibility of Severe Immigration Consequences Flowing From His PLA.cece eeesceesesseecesanstessscsesssstsusesvesaasssatstssssscsersvesees 12 CONCLUSION oo. eececcccecseseesesesescesscsssssansusasesensusatavavaressassverseveseseesecess 14 TABLE OF AUTHORITIES Federal Cases Delgadillo v. Carmichael (1947) 332 U.S. 388 oie cceeseeseseesecssalaccssesesesesesessesssavsesstssesacatessesserseses 14 Hill v. Lockhart (1985) ATA US. 52 coecccccecenesceeeesseteesesecacsesecsessesssscacssssvecetertatstsessecetsass 13 INS v. St. Cyr (2001) S33 US. 289 iccccecteeectsssesesecseesesesecsesssscsesssessarseeesssatatsnseecenes 14 Padilla v. Kentucky (2010) 559 U.S. — ,130 S.Ct. 1473 ec cccceccesecsssctecereceeatescststsesesees 3, 14 Ruiz-Vidal v. Gonzales (9th Cir. 2007) AT3 F.3d 1072 oo eeeeecesesseseessecesecsecscsssaesavecessssesssssesesscsevsstesvecceces 13 Strickland v. Washintgon (1984) 466 ULS. 668 occeceecceessesesesecsescsesstscsvsassessasstusvavatacsusaavessetecseeees 13 California State Cases People v. Bautista (2004) 115 CabApp.4th 229 occccsessscsstsrsessstesesecstsesessveveseesecee 12 People v. Castro-Vasquez (2007) 148 CalApp.4th 1240 oo. ccsccscscsscnsecsssesessesesevetsvereeees passim People v. Limon (2009) 179 Cal.App.4th 1514 occccccsecessscssesessstssssssesesteteeseccesecc 8 People v. Shaw (1998) 64 CalApp.4th 492 oooeecsssessecsessssescstsrssesessesesssisstsrsetsvececeeseces 9 People v. Superior Court (Zamudio) (2000) 23 Cab.4th 183. oo cecscscsssescsesvesesvesstsscssssssssssssvesseeasecesecsece. 2, 8,9 People v. Totari (2002) 28 Cal.4th 876 ooo ccecesesssescsssssesesssscssesecensusssssisssssesevereeecesesesees 8 California Codes Health & Saf. Code § 11352, subd. (a) eeeeeeeeeeeetseseteeeseeeeeerseeseseses 12 Health & Saf. Code § 11360, subd. (8) oo...ccceceeceeseserescteeseneees 6, 9 Penal Code § 1016.5 co.cceee ceessenessesscseeseeseeeeeeeaesseeseeessseeseseseees passim Penal Code § 1016.5, Subd. (C) wceeeecsccseessesesscsseecsssessecesseereseesersnenss 9 Penal Code § 1016.5, subd. (d) ooo ecccccccccseccesceessesesssrecsssssecsseeeeesenererses 3 Penal Code § 1237.5 ooeeeececceccesccsceceseeesseseeessesssesessecsesessseeessesersessseceerevsrevens l United States Code 8 U.S.C. § 1182, subd. (a)(2)(A)(i)(ID) seesccsseccscssscccossssecsssessesesecssevecssseeeeeee 9 B U.S.C. § 1255. ccecccccscsssssesssssssseesesesssesseeseessssesssssssesssesssecsessssesssssisesessssevecee 9 8 U.S.C. § 1326, Subd. (b)(2) ceeccccsseesssssssscssssssesessesssssssvecssitsssssesesssussesstescese 9 21 ULS.C. § 802 icccecseeeeneeseecseeesssessessesseesecsecseecsesseseescseseesesseanees 12 SUPREME COURTNO. 8199495 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, VS. RODRIGO MARTINEZ MARTINEZ, Defendant and Appellants Court of Appeal No. H036687 (Santa Clara County Superior Court Case No.: 156569) TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Pursuantto rules 8.368 and 8.500 of the California Rules of Court, defendant and appellant Rodrigo Martinez Martinez petitions this Court for review of the unpublished decision of the Court of Appeal, Sixth Appellate District, filed December 9, 2011 in case number H036687, affirming the judgment. The Court of Appeal’s opinionis attachedto this petition as Appendix “A.” Nopetition for rehearing was filed. ISSUE PRESENTED FOR REVIEW Whether, whenthetrial court fails to deliver immigration advisements mandated by Penal Code section 1016.5 prior to accepting a defendant’s plea of guilty, an abuse of discretion has occurred whenthe court denies a motion to vacate the plea for lack ofprejudice after considering only the appellant’s likelihood of successattrial, and disregarding evidence supporting the defendant’s contention that, had he been properly warned, he could have obtained an immigration-neutral disposition, and that he would have preferred his chancesat trial over a certainty of deportation. NECESSITY FOR REVIEW Pursuantto rule 8.500(b) of the California Rules of Court, the issues presented herein merit review to secure uniformity of decision amongthe appellate courts andto settle important issues of law. In the context of a Penal Code section 1016.5 motion to vacate based onthetrial court’s failure to deliver warnings about immigration consequencesofa plea,this Court has previously heldthat “the sentencing court must determine whetherthe error prejudiced the defendant, i.e., whetherit is ‘reasonably probable’ the defendant would not have pleadedguilty if properly advised.” People v. Superior Court (Zamudio), 23 Cal. 4th 183, 210 (2000). Following that decision, the Court of Appeal for the Second District held that to show prejudice, a defendant wasnot required to demonstrate a probability of a favorable outcomeattrial, but that a likelihoodof successat trial may be one factor to consider in assessing whether a defendant would have rejected a plea offer. People v. Castro-Vasquez, 148 Cal. App. 4th 1240 (2007). In This Court has yet to provide guidance to lower courts on whatfactors should be considered to determine whenit is “reasonably probable”that a defendant would not havepled if properly advised pursuant to Penal Code section 1016.5. In Padilla v. Kentucky (2010) 130 S.Ct. 1473, the United States Supreme Court recently recognized that “[p]reserving a client’s rightto remain in the United States may be more importantto the client than any potential jail sentence,” and that “informed consideration of possible deportation can only benefit both the State and non-citizen defendants during the plea-bargaining process.” (/d. at p. 1483, 1486.) That Court’s position is very muchin accord with the California Legislature’s intent in enacting Penal Codesection 1016.5, which was to “promote fairness”for non-citizen defendants. (Penal Code § 1016.5, subd. (d).) Accordingly, the legislature included a requirement that such defendants be given “a reasonable amountoftime to negotiate with the prosecuting agencyin the event the defendant or the defendant’s counsel was unaware”ofthe immigration consequencesof a plea. (/bid.) The decisions of the lower courts in this case are in conflict with the Court of Appeal’s decision in People v. Castro-Vasquez, supra, 148 Cal. App. 4th 1240, and are not in accord with the concerns expressed by the California Legislature in Penal Code section 1016.5, or the United States Supreme Court in Padilla v. Kentucky, supra, 130 S.Ct. 1473. In this case, the trial court denied appellant’s motion to dismiss, upon finding that appellant failed to demonstrate that he was prejudiced bythe lack of immigration advisements before he entered a guilty plea. Specifically, the trial court foundit “highly improbable” that Mr. Martinez would have been able to negotiate a plea that would not have had adverse immigration consequences, based on the assumption that only a lesser charge would have been immigration-neutral. (1 Clerk’s Transcript (“CT”) 92.) The court also found that it was “unlikely” that Mr. Martinez would have been | found not guilty by a jury, had he elected to exercise his trial rights. (/d.) The Court of Appeal subsequently affirmed, agreeing with the trial court that appellant would have been convicted by a jury had he gonetotrial, and that it was “entirely speculative” that appellant would have agreed to a greater potential prison sentence in exchange for an immigration neutral plea. The Court of Appeal therefore concluded that appellant had failed to demonstrate prejudice. (Typed opinion (“opn.”) atp. 3.) This Court should provide guidance to lower courts that (1) affirms the Court of Appeal’s decision in Castro-Vasquez, supra, 148 Cal. App. 4th 1240, that a defendant does not have to demonstrate a likelihood of success at trial to demonstrate prejudice; (2) includes the possibility of obtaining an alternative, immigration-neutral disposition as a factor in assessing prejudice in the Penal Code section 1016.5 context; and (3) takes into accountthe reality that for many non-citizen defendants, avoiding deportation is more important than any potential jail sentence. Without such guidance, the issues in this case are likely to frequently reoccur. Review should therefore be granted. STATEMENT OF THE CASE On July 28, 1992, Appellant, Rodrigo Martinez-Martinez, pled guilty to a violation of Health and Safety Code section 11360, subdivision (a), transportation of marijuana. Appellant was neither counseled by his attorney, nor advised by the court at the change of plea hearing, that there wasthe possibility of adverse immigration consequencesas a result of his plea. (1 CT 28, 44-45.) On the court’s minute order, a box to be checkedif a defendant wasproperly warned by the Court of the immigration consequencesofhis plea, is unchecked. (1 CT 28.) On January 21, 2011, appellant, through counsel, filed a motion to vacate his 1992 conviction pursuant to Penal Code section 1016.5. (1 CT 38.) On February 17, 2011, the Honorable Marc Poché of the Superior Court of Santa Clara County, issued a written order denying the motion. (1 CT 91-92.) The court held that appellant wasentitled to a rebuttable presumption that he had not been properly advised by the trial court regarding the possibility of immigration consequencespriorto his plea. (1 CT 91.) The court further held that appellant had established that his 1992 conviction does indeed have immigration consequences for him. (/d.) However, the court foundit “highly improbable” that appellant would have been able to negotiate a plea that would not have had adverse immigration consequences. (1 CT 92.) Second, the court held that it was “unlikely” that appellant would have been found not guilty by a jury, had he elected to exercisehistrial rights rather than plead guilty. (/d.) Based on these two findings, the court held that appellant had not establishedthat the trial court’s failure to warn him about the immigration consequencesofhis plea had prejudiced him in any way, and denied appellant’s motion to vacate. (Id.) On March 10, 2011 appellant filed a notice of appeal and a certificate of probable cause was issued on March 11, 2011. (1 CT 95-96.) On December 9, 2011 the Court of Appeal, Sixth District, quoting the decision of the Superior Court at length, affirmed. (Typed opn., pp. 3-4.) STATEMENT OF THE FACTS For purposesofthis petition for review only, petitioner adopts the statement of facts set forth by the Court of Appeal in its opinion. (Typed opn., pp. 1-2.) ARGUMENT THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE DECISION BELOW AND THE COURT OF APPEAL’S DECISION IN PEOPLE V. CASTRO VASQUEZ ABOUT WHETHER THE LIKELIHOOD OF SUCCESS AT TRIAL CAN BE DETERMINATIVE OF WHETHER A DEFENDANT WAS PREJUDICED BY A_ TRIAL COURT’S FAILURE TO DELIVER PENAL CODE SECTION 1016.5 ADVISEMENTS, AND TO INSTRUCT LOWER COURTSTO CONSIDER THE POSSIBILITY OF OBTAINING AN IMMIGRATION-NEUTRAL DISPOSITION AS A FACTOR IN ASSESSING PREJUDICE IN THE PENAL CODE SECTION 1016.5 CONTEXT. “To prevail on a motion to vacate under section 1016.5, a defendant mustestablish that (1) he or she wasnot properly advised of the immigration consequencesas 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 ofthe specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement.” (People v. Totari (2002) 28 Cal.4th 876, 884.) To show prejudice, a defendant must show that it is “reasonably probable that he would not have pleaded guilty if properly advised.” (People v. Castro-Vasquez, supra, 148 Cal.App.4th atp. 1244; see also Zamudio, supra, 23 Cal.4th at p. 210.) The appropriate standard of review of a denial of Penal Code section 1016.5 motion is abuse of discretion. (People v. Limon (2009) 179 Cal.App.4th 1514, 1517 (citing Zamudio, supra, 23 Cal.4th at p. 192) see also People v. Shaw (1998) 64 Cal.App.4th 492, 495-496; Pen. Code § 1016.5, subd.(c).) In this case, appellant pled guilty to one count of violating Health and Safety Codesection 11360, subdivision (a), transportation of marijuana. (1 CT 28.) He wasnot advised by the trial court or counsel prior to entering his plea that it could result in his expulsion, denial of admission, or denial of naturalization. (/d.; see also 1 CT 44-45.) By agreeing to plead guilty to the crime oftransportation of marijuana, appellant unknowingly guaranteed his permanentexpulsion from this country.' A. Focusing Only On a Likelihood of Success At Trial Cannot Be the Appropriate Test for Assessing Prejudice in the Context of a Section 1016.5 Motion, Where the Correct Inquiry Involves Determining What A Properly Warned Defendant Would Have Done, And Success At Trial May Have Been Only One Factor Considered By the Defendant. In the decision below, the Court of Appeal found no abuse of discretion in the trial court’s denial of appellant’s Penal Code section ' Under federal immigration law, a violation of Health and Safety Code section 11360, subdivision (a) constitutes a “violation of .. . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 oftitle 21[of the U.S. Code]).” (8 U.S.C. § 1182, subd. (a)(2)(A)G)UD.) As such, it renders Mr. Martinez removable under 8 U.S.C. section 1182, subdivision (a)(2)(A)(G)(I1), and ineligible for adjustment of status under 8 U.S.C. section 1255. Moreover, if Mr. Martinez reenters the United States unlawfully after having been deported, he will be subject to criminal prosecution and imprisonmentfor up to 20 years. (8 U.S.C. § 1326, subd. (b)(2).) 1016.5 motion, and affirmed. Using the same inquiry relied upon by the trial court, the Court of Appeal focused on appellant’s likelihood of success at trial to determine whether appellant was prejudiced by the lack of section 1016.5 warnings, noting simply that “[t]he jury would not have taken long. The observation of a hand to hand sale together with the money and the purchaser would not have offered any difficulty to a jury.” (Typed opn., p. 3.) The decision gave no consideration whatsoeverto the facts in evidence which support appellant’s contention that, had he been properly warned of the immigration consequences, he would have preferred his chancesattrial over certain deportation from the United States. In so doing, the Court of Appeal disregardedits sister district’s opinion in People v. Castro-Vasquez, supra, in which the court held that demonstrating a likelihood of successat trial is not required to show prejudice, and that “the probable outcomeof a trial [is] onefactor a court could consider in assessing the likelihood that a defendant would have rejected a plea offer.” (148 Cal.App.4th at p. 1245 (emphasis added).) Reasonable minds have differed throughout these proceedings as to the strength of the prosecution’s case. However, the Court of Appeal’s failure to address any evidencethat the prosecution’s case wasnotairtight further demonstrates that it did not conduct the appropriate inquiry into the likelihood that appellant would haverejected the plea offer if properly warned. The record clearly demonstrates that there were weaknessesin the 10 prosecution’s case sufficient to persuade a properly warned defendantto chooseto go to trial if an immigration-neutral plea could not be reached. As appellant’s trial counsel pointed out: This is essentially a one-witness case involving the officer who saw what he perceived to be an apparent hand-to-hand. . . drug transaction. He detained the alleged buyer in that transaction allowing the seller to carry on on his bicycle who — with whom helost visual observation for then nearly an hour. When hearrested [appellant] some one hour later and some .68 miles away, he searched [appellant] and found no indicia of any kind of drug sales and no money on him as well. (1 Reporter’s Transcript (“RT”) 7.) Even the District Attorney acknowledged that there were “weaknesses”in the prosecution’s case that could lead to an acquittal. (1 RT 9.) Thetrial court should have considered evidence of the strengths and weaknesses of the prosecution’s case, and weighed them against the certainty of deportation appellant faced by accepting the plea offer, as a properly warned defendant would have done. Only then would the court actually be able to determineif it is reasonably probable that appellant would have chosen to exercisehis trial rights had he been properly warned. Because court failed to conduct the appropriate inquiry, the denial of appellant’s motion to vacate was an abuse of discretion. // // // 11 B. Courts Must Consider Evidence That An Immigration- Neutral Alternative Disposition Could Have Been Available To A Defendant Had He Been Made Awareof the Possibility of Severe Immigration Consequences Flowing From His Plea. The Court of Appeal further erred by dismissing out of hand appellant’s contention that, had he been properly warned pursuantto Penal Code section 1016.5, appellant would have offered to “plead up”to the more serious charge of Health and Safety Code section 11352, subdivision (a). (People v. Bautista (2004) 115 Cal.App.4th 229, 240; see also Typed opn., p. 3.) Health and Safety Code section 11352, subdivision (a), California’s other “transportation” statute, is more serious than transportation of marijuana, in that it exposes the defendantto state prison sentencesof “three, four, or five years,” as opposed to the “two,three or four years” a defendant is exposed to under Health and Safety Code section 11360, subdivision (a). However, unlike Health and Safety Code section 11360, subdivision (a), which is specific to marijuana, Health and Safety Codesection 11352, subdivision (a) involves the transportation of “any controlled substance.” This is significant because, where a defendant pleadsto the plain statutory language of Health and Safety Code section 11352, subdivision (a) — wherein the type of drug is not specified, the resulting conviction cannot be considered an offense relating to a controlled substance “as specified in section 802 oftitle 21” of the United States Code (also cited as “Section 102 of the Controlled Substances Act” (“CSA”)). 12 Becauseit cannot be considered a controlled substance offense under the CSA,it does not trigger immigration consequences. (See Ruiz-Vidalv. Gonzales (9th Cir. 2007) 473 F.3d 1072, 1078.) However, by simply concludingthat it is “entirely speculative . . . that [appellant] would have agreed to go to state prison for a term of three, four or five years had he known of the immigration consequences,” the Court of Appeal misapprehendsappellant’s argumentandthe facts of this case, and assumes an unreasonable outcome,in error. The negotiated disposition in this case required appellant to plead guilty to a charge which exposed him to up to four years in prison, however his actual sentence wasthree years of formal probation, a time-served jail term of 111 days, a fine, counseling, and registration requirements. (1 CT 92.) Given that sentence, it is highly unlikely that either the prosecutor or the trial court would have suddenly insisted on a prison sentence,as the decision below assumes, had appellant offered to plead up to Health and Safety Code section 11352, subdivision (a). In fact, what “beggars the imagination” is why such disparate treatment would be expected. (Typed opn., p. 3.) Under Strickland v. Washintgon (1984) 466 U.S. 668, 695, this Court must considerthe issue of prejudice in the abstract without regard to “unusual propensities toward harshness or leniency” on the part of a particular decision maker. In Hill v. Lockhart (1985) 474 U.S. 52, the Court cited Strickland for the proposition that an assessmentof prejudice should 13 be based upon a “reasonable decision maker.” The decision below presupposes an unreasonable decision maker would insist on a prison term in exchangefor appellant’s plead up to an immigration-neutral charge, despite the initial offer of a no-prison sentence, and is therefore erroneous as a matter of law. By contrast, there is nothing unreasonable or improbable about appellant’s position that he would have been willing to serve “additionaljail time” in exchange for an immigration-neutral plea. (1 CT 78.) As the United States Supreme Court has long recognized, the consequence of deportation is particularly severe, because it is “the equivalent of banishmentor exile.” Delgadillo v. Carmichael (1947) 332 U.S. 388, 390-391. In Padilla v. Kentucky, supra, 130 S.Ct. 1473, the Court declared that “‘as a matter of federal law, deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (/d. at p. 1479.) Accordingly, “[p]reserving a client’s right to remain in the United States may be more importantto the client than any potentialjail sentence.” (Id. at p. 1483, citing INS v. St. Cyr (2001) 533 U.S. 289, 323.) The Court of Appealfails to acknowledgethis reality in its assessment of whetherit is reasonably probable that appellant would have accepted a greater custodial sentence in exchange for an immigration-neutral disposition, in error. 14 The decision below reveals a conflict among the lowercourts as to the appropriate inquiry to assess prejudice in the context of a motion to vacate pursuant to Penal Code Section 1016.5. Specifically, the decision below focuses on appellant’s likelihood of a successattrial, but the Court of Appeal in People v. Castro-Vasquez, supra, held that successattrial is only one factor courts should consider when determining prejudice. (148 Cal. App. 4th 1240.) This Court should therefore grant review to resolve the conflict, and to instruct future courts that the possibility of obtaining an alternative, immigration-neutral disposition must be a factor considered in determining prejudice. CONCLUSION For the reasons given herein, this court should grant review. Dated: January 17, 2012 Respectfully submitted, —— Sara E. Ks Attorney for Defendant and Appellant 15 CERTIFICATION OF WORD COUNT Pursuant to California Rules of Court, rule 8.504(d)(1), I hereby certify the number of words in Appellant’s Petition for Review is 3,152 based on the calculation of the computer program usedto preparethis brief. The applicable word-countlimit is 8,400. Dated: January 17, 2012 —_— Sara E. Coppit_~~ 16 APPENDIX “A” NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinionsnotcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposes of rule 8.1715. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT nee 4 THE PEOPLE, H036687 Jou = BOON (Santa Clara County MEORABL 4 VESUY Caek Plaintiff and Respondent, Super. Ct. No. 156569). Vv. RODRIGO MARTINEZ MARTINEZ, Defendant and Appellant. An undercoverofficer, Frank Estrada standing about four feet away from Rodrigo Martinez-Martinez, saw him exchange a brown bindle for money with a Mr. Ryan. The officer detained Ryan and found the brownbindle in his hand. It was marijuana. Ryan gave appellant $8.00. About an hour later the officer saw appellant and arrested him. He was charged with a violation of Health and Safety Code section 11360, subdivision (a). Hepled guilty to the charge and served 111 days in jail and was orderedtoregister as a narcotics offender. Fifteen years later he moves, pursuant to Penal Codesection 1203.4, for a record clearance or in the alternative to have his charge reduced to a misdemeanor. The motion for record clearance was granted. In January ofthis year appellant filed a motion to vacate the conviction based on thefailure to advise him of the immigration consequencesofhis plea. Appellant asserted that he had never been advised of the immigration consequenceseither by the court or his attorney. He also claims that he did not learn of them until 2010 when he applied for an adjustmentofstatus to lawful permanent residency with the United States Citizenship and Immigration Service. That application was denied based on the drug conviction. A record ofhis preliminary hearing of June 5, 1992, as well as his July 28, 1992 plea are gone. The minute order ofthe plea has boxes checked for the reading of rights, advisement of maximumtime,probation andparole, stipulation to a factual basis and registration requirements, but not the boxrelating to advice of immigration status. His motion was denied and heappeals to us andsays that the trial court abusedits discretion in denying the order. Wefind no abuseof discretion and noerror. Thetrial court’s denial of the motion was supported by written ruling which weset outat length. “Defendant’s motion under P.C. 1016.5 is DENIED. “Defendant correctly lists the necessary concomitantsforrelief. “(1) Defendanthasestablished that he may rely on a rebuttable presumption that the advisement regarding immigration consequences was not given before he entered his plea. “(2) Defendant mustestablish that at the time ofthis motion, there exists more than a remote possibility that the conviction will have one or moreofthe adverse immigration consequencesspecified in the statute. “He has donethat by declaration ofhis present counsel that defendant’s conviction for sale of marijuana renders defendant inadmissibleto the United States; renders him ineligible to naturalize to United States citizenship because the conviction precludes him from attempting to demonstrate ‘good moral character.’ “(3) Defendant has attempted to demonstrate ‘prejudice’ by declaring that had he been aware of the immigration consequencesofhis plea he would not haveentered it. Instead, defendant declares that he would haveinsisted upon a plea agreement‘that would have spared him such immigration damage’ or he would haveexercisedhis right to a jury trial. “The plea agreement he agreed to on July 28, 1992 was: For plea of guilty to Health & Safety Code section 11360 subdivision (a); he would be placed on formal probation for three years and would be given a time-servedjail term of 111 days, a fine, counseling, and registration as a narcotics offender. This Court finds it highly improbable such a bargain would have beenoffered. “Even more unlikely was a verdict of not guilty. The arresting officertestified at the preliminary hearing that he was only four feet away from the sale and saw defendant hand the buyer a baggie and saw the buyer hand defendant paper money. Theofficer immediately arrested the buyer and found on him a baggie of marijuana. Less than an hour later defendant was found without any contraband. Unless a jury found theofficer to be a liar, it is hard to believe he could not see what hetestified he witnessed at a distance of four feet: Defendant handing a baggie of marijuana to the buyer and concurrently being handed cash by the buyer. Nor wouldit be difficult for a jury to determine what defendant did with the moneyor additional contraband: He had an hour to dispose of it and he knew the police would be looking for him.” Weagree with thetrial court that the appellant’s claim that he would have plead to a “greater offense,” sale of unspecified controlled substance under Health and Safety Code section 11352, subdivision (a) is entirely speculative andit beggars the imagination to suppose that he would have had agreedto goto state prison for a term ofthree, four or five years had he knownofthe immigration consequences. Thedistinct problem with appellant’s appealis his inability to demonstrate prejudice. He says only that had he been aware ofthe immigration consequencesofhis plea, he would not haveenteredit and instead gone to jury trial. The jury trial would not have taken long. The observation of a handto handsale together with the money andthe purchaser would not have offered any difficulty to a jury. DISPOSITION Judgmentis affirmed. WE CONCUR: PREMO,J. ELIA,J. People v. Martinez Martinez H036687 RUSHING,P.J. DECLARATION OF SERVICE Re: People v. Rodrigo Martinez-Martinez No. H036687 I, Sara E. Coppin, declare that I am over 18 yearsof age, employed in the County of San Francisco, and nota party to the within action; my business addressis 11075 Treehenge Lane, Auburn, CA 95602, I am a memberofthe barofthis court. On January 18, 2012, I served the within APPELLANT’S PETITION FOR REVIEW on each of the following, by placing true copies thereofin envelopes addressed respectively as follows, and sending via United States Postal Service: Attorney General 455 Golden Gate Ave Room 11000 San Francisco, CA 94102 District Attorney Santa Clara County 70 West Hedding Street, West Wing San Jose, CA 95110 Sixth District Appellate Project 100 N Winchester Blvd., Suite 310 Santa Clara, CA 95050 Rodrigo Martinez-Martinez c/o Enrique Ramirez 825 Van Ness Ave., Ste 304 San Francisco, CA 94109 Santa Clara County Superior Court 191 N. First Street San Jose, CA 95113 Sixth District Court of Appeal 333 West Santa Clara Street, Ste.1060 San Jose, TA 95113 I declare under penalty of perjury that the foregoingis true andcorrect. Executed on January 18, 2012, at Auburn, California. SARA PIN