Filed 1/27/16 P. v. Diaz CA2/6
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B262592
                                                                            (Super. Ct. No. 1296253)
    Plaintiff and Respondent,                                                (Santa Barbara County)

v.

OSVALDO DIAZ,

    Defendant and Appellant.


                   Osvaldo Diaz appeals the denial of his post-judgment motion to vacate a
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2009 conviction for possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1))
and transportation of methamphetamine for personal use (Health & Saf. Code, § 11379,
subd. (a)). Appellant contends that he was not properly advised of the immigration
consequences of the conviction when the change of plea was entered. (§ 1016.5.) We
affirm.
                                                Procedural History
                   In 2009, appellant was charged with possession for sale of
methamphetamine, possession of a deadly weapon, battery, theft, and possession of
methamphetamine for personal use. Pursuant to a negotiated plea, appellant pled no
contest to possession of a deadly weapon and transportation of methamphetamine in

1
    All statutory references are to the Penal Code unless otherwise stated.
exchange for three years probation. It was a highly favorable plea because appellant was
facing a maximum sentence of four years state prison if convicted.
              Before the change of plea was entered, appellant signed a "Waiver of
Constitutional Rights and Plea" form. Under the section entitled "CONSEQUENCES
OF MY PLEA OF GUILTY/NO CONTEST" appellant initialed the following
paragraph: "If I am not a citizen of the United States, I understand that the law
concerning the effect of my conviction of a criminal offense of any kind on my legal
status as a non-citizen will change from time to time. I hereby expressly assume that my
plea of GUILTY/NO CONTEST in this case will, now or later, result in my deportation,
exclusion from admission or readmission to the United States, and denial of
naturalization and citizenship."
              Appellant signed a second paragraph acknowledging that "[m]y attorney
. . . has gone over this form with me. I have read and understand this form. I understand
the pleas and admissions I am entering, the consequences thereof and the constitutional
rights I am waiving." Appellant's trial attorney signed a paragraph stating that he
"explained the direct and indirect consequences of this plea to the [appellant] and I am
satisfied that [appellant] understands them. . . . I personally went over this document
with the defendant." On May 27, 2009, the trial court found that the change of plea was
knowing, intelligent, free, and voluntary. The court suspended imposition of sentence
and granted three years probation.
              On August 7, 2014, appellant filed a motion to vacate the conviction on the
ground that he was not advised "that pleading guilty to the criminal charge at issue would
subject me to mandatory deportation." Denying the motion, the court found that
appellant was advised in writing pursuant to section 1016.5 before the change of plea was
entered.
                                            Discussion
              The Attorney General argues that the motion to vacate the plea is untimely.
We agree. A motion to vacate a plea due to lack of advisement under section 1016.5
must be brought within a reasonable time. (People v. Superior Court (Zamudio) (2002)


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23 Cal.4th 183, 203.) Appellant fails to explain why he waited five years to bring the
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motion.
              On the merits, the trial court did not abuse its discretion in denying the
motion. "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.]"
(People v. Totari (2002) 28 Cal.4th 876, 884.)
              Appellant argues that he was not advised that judicial recommendations
against deportation (JRAD) are no longer permitted. (See People v. Paredes (2008) 160
Cal.App.4th 496, 498-499 [retroactive change in federal law curtailing use of JRADs did
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not result in violation of plea agreement].) The issue was not raised below and may not
be raised for the first time on appeal.
                In enacting section 1016.5, the Legislature intended that trial courts advise
defendants about the "potential adverse immigration consequences." (Zamudio, supra,
23 Cal.4th at p. 209.) Appellant cites no authority that the trial court must advise the
defendant on what offenses will result in mandatory deportation. (See e.g., People v.
Gutierrez (2003) 106 Cal.App.4th 169, 174, fn. 4 [no obligation to advise on immigration
consequences that defendant may suffer other than the ones listed in section 1016.5];



2
 In 2011, appellant was arrested for possession of Vicodin without a prescription (Health
& Saf. Code, § 11350). On September 26, 2011, the Santa Barbara County Jail released
him to the custody of U.S. Immigration and Customs Enforcement for voluntary
deportation.
3
  "[T]itle 8 United States Code [former] section 1251(b) authorized courts, including state
courts, to issue 'recommendations,' against deportation. Such recommendations had the
legal effect of precluding the federal government from deporting a defendant on the basis
of a conviction for an offense that was otherwise deportable." (People v. Paredes, supra,
160 Cal.App.4th at p. 501, fn 3.)


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People v. Barocio (1989) 216 Cal.App.3d 99, 105 [no obligation to advise on right to
request a JRAD under 8 U.S.C. former § 1251(b)(2).]
                                    Written Advisement
              Appellant contends that a general advisement on a change of plea form is
inadequate but it is well established that "[a] validly executed waiver form is a proper
substitute for verbal admonishment by the trial court. [Citation.]" (People v. Ramirez
(1999) 71 Cal.App.4th 519, 521; People v. Gutierrez, supra, 106 Cal.App.4th at p. 175
[court may rely on executed form]; People v. Quesada (1991) 230 Cal.App.3d 525, 533-
536 [statutory admonition need not be given orally].) The advisement need not be in the
exact language of section 1016.5 and can be in writing. Substantial compliance is all that
is required. (Zamudio, supra, 23 Cal.4th at pp. 207-208; People v. Gutierrez, supra, 106
Cal.App.4th at p. 174.)
                                         Prejudice
              A defendant who moves to set aside his plea based on an incomplete
section 1016.5 advisement must show prejudice, i.e., that but for the failure to advise,
defendant would not have entered a guilty plea. (Zamudio, supra, 23 Cal.4th at pp. 209-
210.) Appellant states that he would never have agreed to accept the plea had he known
he was subject to mandatory deportation. The declaration is self-serving and not
corroborated. (In re Resendiz (2001) 25 Cal.4th 230, 253-254 [defendant's self-serving
statement not sufficient to show prejudice]; In re Alvernaz (1992) 2 Cal.4th 924, 938
[defendant's self-serving statement of prejudice must be corroborated independently by
objective evidence].)
              Appellant was arrested for kicking his wife, who reported that appellant had
beat her in the past and sold cocaine and marijuana. A witness saw appellant hold a baby
and repeatedly kick the victim in the head before the police arrived. The arresting officer
found 4.8 grams of methamphetamine, a scale, a package of baggies, and a two-foot bat
in appellant's car. Appellant had $200 in $20 dollar bills that were stolen from a nearby




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real estate office and was on felony probation for hit and run resulting in injury. (Veh.
Code, § 20001, subd. (a).) If convicted, the maximum sentence was four years state
prison. In light of the charges, the overwhelming evidence against him, appellant's
criminal record and the probation violation, the negotiated plea was truly a bargain.
Appellant makes no showing that, had he been differently advised of the immigration
consequences of the plea, that he would have insisted on a trial. (People v. Totari, supra,
28 Cal.4th at pp. 884 [defendant must show reasonable probability he would have not
pled guilty if properly advised].) "While it is true that by insisting on trial [appellant]
would for a period have retained a theoretical possibility of evading the conviction that
rendered him deportable and excludable, it is equally true that a conviction following trial
would have subjected him to the same immigration consequences." (In re Resendiz,
supra, 25 Cal.4th at p. 254.)
                                     Padilla v. Kentucky
              Appellant's reliance on Padilla v. Kentucky (2010) 559 U.S. 356 [176
L.Ed.2d 284] (Padilla) is misplaced. There, the United States Supreme Court held that
the Sixth Amendment requires defense attorneys to inform non-citizen clients of the
deportation risks of guilty pleas. (Id., at p. 367 [176 L.Ed.2d at p. 294] Padilla does not
apply to defendants whose convictions, like appellant's, became final prior to Padilla.
(Chaidez v. U.S. (2013) 568 U.S. __, __ [185 L.Ed.2d 149, 162].) "Section 1016.5
addresses only the trial court's duty to advise, not counsel's, and provides a specific
remedy for that particular failure." (People v. Chien (2008) 159 Cal.App.4th 1283, 1288
[trial court lacked jurisdiction to address claim of ineffective assistance of counsel in the

4
 The pre-sentence probation report states that appellant had: a 2003 conviction for
possession of marijuana (Health & Saf. Code, § 11357, subd. (a)); 2005 conviction for
auto theft (Veh. Code, § 10851, subd. (a)), driving while intoxicated (Veh, Code, §
23152, subd. (b)), resisting an officer (§ 148, subd. (a)(1)), and driving without a license
(Veh. Code, § 12500, subd. (a)); a 2009 conviction for possession of a switch-blade knife
(§ 653, subd. (k)); and a 2009 conviction for hit and run resulting in death or injury (Veh.
Code, § 20001, subd. (a)). Appellant committed the present offense two months after
the March 4, 2009 hit and run conviction.


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context of a section 1016.5 motion].) Having received the benefit of the plea bargain,
appellant is not permitted to trifle with the courts by attempting to better the bargain
through the appellate process. (People v. Hester (2000) 22 Cal.4th 290, 295.)
              The judgment (order denying motion to withdraw plea) is affirmed.
              NOT TO BE PUBLISHED.



                                           YEGAN, J.

We concur:


              GILBERT, P.J.



              PERREN, J.




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                                Jean M. Dandona, Judge

                        Superior Court County of Santa Barbara

                          ______________________________


             Zulu Ali, under appointment by the Court of Appeal, for Defendant and
Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney
General, for Plaintiff and Respondent.




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