Filed 5/17/16 P. v. Leyva CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B264595

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA076703)
         v.

FERNANDO RIVERA LEYVA,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County.
Lloyd M. Nash, Judge. Affirmed.

         Law Office of Zulu Abdullah Ali, Zulu Abdullah Ali and Mohammad Iranmanesh,
for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
                                              __________________
       In a felony complaint filed by the Los Angeles County District Attorney,
defendant and appellant Fernando Rivera Leyva was charged with assault with a deadly
weapon, in violation of Penal Code section 245, subdivision (a),1 and the allegation that
he personally inflicted great bodily injury within the meaning of section 12022.7,
subdivision (a). Appellant pleaded no contest to the charge and the enhancement was
stricken as a result. The trial court sentenced appellant to three years of formal probation.
       Later, appellant filed a motion to vacate his conviction on the grounds that he was
not properly advised of the immigration consequences of his plea. The trial court denied
the motion.
       Appellant timely filed a notice of appeal and a request for a certificate of probable
cause. The trial court denied his request for a certificate of probable cause. On appeal,
appellant argues that pursuant to Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the
Judicial Recommendation against Deportation (JRAD), and the legislative intent behind
section 1016.5, he was not properly advised of the immigration consequences of his plea.
       We affirm.
                           PROCEDURAL BACKGROUND2
       On October 1, 2013, appellant pled no contest to assault with a deadly weapon.
The minute order reflecting appellant’s plea provides, in relevant part: “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.”
       On September 9, 2014, appellant filed a motion to vacate his conviction on the
grounds that he was not properly advised of the immigration consequences of his plea. In
support, he filed a declaration in which he claimed that he was not informed that
“pleading guilty to the criminal charges in question would subject [him] to mandatory

1      All further statutory references are to the Penal Code unless otherwise indicated.
2      Because appellant pleaded no contest prior to trial and the only issue raised on
appeal is the alleged failure to advise him of the immigration consequences of his plea,
we have omitted a statement of facts.

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deportation.” Appellant was not present at the hearing; counsel explained that he may
have been in the custody of the immigration authorities. The trial court noted that
appellant’s presence was important because “I [the trial judge] advised him myself
personally, and he signed the—he initialed the box he was advised, so it’s important to be
able to question him.” The hearing was continued.
       Appellant was again absent at the continued hearing date. Counsel requested
another continuance and informed the trial court that he had submitted an order for
transport. The trial court replied that it was uncertain whether it had jurisdiction to order
the federal government to transport appellant to court. The matter was continued again.
       Appellant was again absent at the continued hearing date. Counsel submitted on
the paperwork. The trial court denied appellant’s motion on the grounds that there was
no legal basis to grant it.
                                       DISCUSSION
       Section 1016.5 provides, in relevant part: “(a) Prior to acceptance of a plea of
guilty or nolo contendere to any offense punishable as a crime 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.”
       “A noncitizen who has been convicted of a felony based on a plea of guilty or nolo
contendere, but who claims that he was not advised on the immigration consequences of
his . . . plea . . . can bring a statutory motion to vacate the judgment, under section
1016.5.” (People v. Aguilar (2014) 227 Cal.App.4th 60, 68.)
       “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.] On
the question of prejudice, defendant must show that it is reasonably probable he would

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have not pleaded guilty or nolo contendere if properly advised. [Citation.] Whether
defendant knew of the potential immigration consequences, despite inadequate
advisements at the time of the plea, may be a significant factor in determining prejudice
or untimeliness. [Citation.] Thus, in deciding the merits of defendant’s motion to vacate,
it may be important for the trial court to determine the factual issue of knowledge.”
(People v. Totari (2002) 28 Cal.4th 876, 884.)
       We review the denial of a motion to vacate under section 1016.5 for abuse of
discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
       Applying these principles, we conclude that the trial court did not err in denying
appellant’s motion to vacate. He was specifically advised of the consequences of his plea
pursuant to section 1016.5.
       Relying upon the JRAD and the legislative intent behind section 1016.5, appellant
asserts that “a simple advisement under the generic recital set . . . forth in section (a) of
the statute is unfair, not proper, and does not reflect the legislative intent of the statute.”
Appellant offers no legal authority in support of this argument and we discern no basis
for adopting it.
       Appellant’s reliance upon Padilla is misplaced. As appellant concedes, Padilla
concerned a claim of ineffective assistance of counsel. (Padilla, supra, 559 U.S. at
p. 360.) Appellant does not assert here that his counsel was ineffective. And, while
appellant offers Padilla in support of the proposition that “the immigration laws have
changed drastically over time,” Padilla does not hold that the trial court has any
expanded duties beyond those set forth in section 1016.5.
       Because we conclude that appellant was properly advised, we need not reach the
question of whether he established prejudice. (People v. Dubon (2001) 90 Cal.App.4th
944, 956.) However, for the sake of completeness, we conclude that there was no
prejudice—there is no indication that it is reasonably probable that, if differently advised,
appellant would not have pleaded nolo contendere. There is nothing in the record to
show that appellant would have rejected his plea. For example, he offers no evidence
how he could have been able to avoid conviction, which specific defenses might have

                                                4
been available to him, how any evidence might have exonerated him, or what
immigration neutral plea might have been available. Given appellant’s very favorable
plea deal, whereby he avoided serving any time in state prison, appellant has failed to
establish that had he been differently advised of the immigration consequences of his
plea, he would not have entered it.
                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                 _____________________________, J.
                                                       ASHMANN-GERST


We concur:



______________________________, P. J.
           BOREN



______________________________, J.
           CHAVEZ




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