Filed 5/26/16 P. v. Alisudjana CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041645
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC303139)

             v.

HARDJO ALISUDJANA,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         On July 8, 2003, defendant pleaded no contest to grand theft of personal property
(Pen. Code, §§ 484/487, subd. (a)), diversion of construction funds (Pen. Code, § 484b),
and contracting without a license (Bus. & Prof. Code, § 7028, subd. (a)). Defendant
admitted that the amount of the grand theft exceeded $100,000. (Pen. Code, § 1203.045.)
On September 22, 2003, the trial court sentenced defendant to two years in prison.
         On July 14, 2014, defendant filed a Penal Code section 1016.51 motion to vacate
the judgment. The motion alleged that defendant was not advised of the immigration
consequences of his no contest plea. On September 11, 2014, the trial court issued a
written order denying the motion.




         1
             Subsequent unspecified statutory references are to the Penal Code.
          Defendant now appeals from the order denying his motion to vacate, arguing that
the trial court abused its discretion in denying the motion. As set forth below, we will
affirm.
                                         BACKGROUND
The Plea Form and the Plea Hearing
          When defendant pleaded no contest on July 8, 2003, he submitted an advisement
of rights, waiver, and plea form for felonies. Line number 13 on that form was titled
“IMMIGRATION CONSEQUENCES.” The following statement was included in line
number 13: “I understand that if I am not a citizen of the United States, my plea of guilty
or no contest in this case may result in my deportation (removal), exclusion from
admission to the United States, or denial of naturalization pursuant to the laws of the
United States.” There was a box reserved for defendant’s initials next to line number 13,
but defendant did not initial the box. Instead, the words “U.S. citizen” were handwritten
inside the box. The plea form contained many other advisements, and the boxes next to
those advisements were marked with either defendant’s initials or the handwritten symbol
“N/A.” At the end of the form, following a statement that his plea was “freely and
voluntarily” given, defendant wrote his signature.
          Before the trial court accepted defendant’s no contest plea on July 8, 2003, the
trial court and defendant engaged in the following colloquy:
          “THE COURT: I’ve been handed a waiver form. I think I spent awhile watching
          you fill it out. For the record, these are your initials and signature on the form?
          “THE DEFENDANT: Yes, sir.
          “THE COURT: Did you go over it carefully with your attorney?
          “THE DEFENDANT: Yes.
          “THE COURT: Do you have any questions you would like to ask me about
          what’s on the form?

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       “THE DEFENDANT: No, sir.
       “THE COURT: All right then.”
       Immediately after this colloquy, the trial court accepted defendant’s no contest
plea. The reporter’s transcript of the plea hearing does not show an oral advisement of
the immigration consequences of the plea.
The Motion to Vacate
       Eleven years after he entered his no contest plea, on July 14, 2014, defendant filed
a section 1016.5 motion to vacate the judgment. The motion alleged that defendant was
never advised of the immigration consequences of his plea.
       Defendant submitted his own declaration in support of the motion to vacate. In his
declaration, defendant declared that in May 2004 the Department of Homeland Security
(DHS) initiated removal proceedings against him due to his conviction and that, although
“the Immigration Court in San Francisco issued an order dismissing DHS’[s] charges
against” him, the removal proceedings had “not yet been closed.” Defendant further
declared that he “was not advised of the immigration consequences of [his] plea” and that
he “would not have pled guilty or nolo contendere . . . had [he] known that doing so
might result in [his] removal from the United States.”
       Defendant also submitted a declaration from the attorney who represented him at
the time of his no contest plea. The attorney executed the declaration in 2010 to support
a habeas petition filed by defendant. In the declaration, the attorney declared: “I did not
inform [defendant] that pleading nolo contendere to these charges carried a risk of
deportation. I also incorrectly identified [defendant] as a United States citizen on
[defendant’s] Advisement of Rights, Waiver, and Plea Form.”
The Order Denying the Motion to Vacate
       The trial court denied defendant’s motion to vacate. In its written order, the trial
court ruled that defendant had failed to satisfy the requirements of section 1016.5.

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       The trial court concluded that defendant was sufficiently advised of the
immigration consequences of his plea, explaining in part: “A court discharges its duty
under [section 1016.5] if, as here, the advice is recited in a plea form and the defendant
and his counsel are questioned concerning that form to ensure that defendant actually
reads and understands it.” Additionally, citing a declaration that defendant submitted in
support of a 2004 habeas petition, the trial court explained that “the record establishes
that Defendant had knowledge of the [immigration] advisement.” In that declaration,
which defendant executed on June 25, 2004, defendant declared: “[T]he within court did
advise me that a plea of guilty in connection with my case could lead to immigration
consequences at the time of my plea.”
       The trial court alternatively concluded that the motion to vacate was untimely
because defendant failed to pursue the motion with reasonable diligence. The trial court
noted that “more than 10 years” had passed since the initiation of removal proceedings
against defendant.
                                        DISCUSSION
       Defendant urges this court to reverse the order denying his motion to vacate. He
contends that the trial court erred in determining that he was adequately advised of the
immigration consequences of his no contest plea, and he also contends that the trial court
erred in determining that he was not diligent in filing his motion to vacate. As explained
below, we conclude that the trial court did not abuse its discretion in denying the motion
to vacate, and we must affirm.2


       2
         The trial court’s conclusions regarding the adequacy of the immigration
advisement and defendant’s lack of diligence were alternative grounds for the denial of
the motion to vacate. Because we conclude that the trial court did not err in determining
that defendant was adequately advised of immigration consequences—and that ground by
itself was sufficient for denial of the motion to vacate—we will not address defendant’s
argument regarding diligence.
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Legal Principles and the Standard of Review
       Section 1016.5 requires the trial court to administer the following advisement
before accepting a plea of guilty or nolo contendere: “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.” (§ 1016.5, subd. (a).)
       Section 1016.5 further provides that if “the court fails to advise the defendant as
required by this section and the defendant shows that conviction of the offense to which
defendant pleaded guilty or nolo contendere may have the consequences for the
defendant of deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States, the court, on defendant’s motion,
shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo
contendere, and enter a plea of not guilty.” (§ 1016.5, subd. (b).)
       To prevail on a motion to vacate under section 1016.5, a defendant “must
demonstrate that (1) the court taking the plea failed to advise the defendant of the
immigration consequences as provided by section 1016.5, (2) as a consequence of
conviction, the defendant actually faces one or more of the statutorily specified
immigration consequences, and (3) the defendant was prejudiced by the court’s failure to
provide complete advisements.” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287
(Chien).) “On the question of prejudice, defendant must show that it is reasonably
probable he would not have pleaded guilty or nolo contendere if properly advised.”
(People v. Totari (2002) 28 Cal.4th 876, 884.)
       The advisement required by section 1016.5 need not be given orally. (People v.
Quesada (1991) 230 Cal.App.3d 525, 536 (Quesada ).) “It is sufficient if . . . the advice
is recited in a plea form and the defendant and his counsel are questioned concerning that
form to ensure that defendant actually reads and understands it.” (Ibid.) “Only if in

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questioning the defendant and his attorney the trial court has reason to believe the
defendant does not fully comprehend his rights, must the trial court conduct further
canvassing of the defendant to ensure a knowing and intelligent waiver of rights.”
(People v. Castrillon (1991) 227 Cal.App.3d 718, 722.)
       “[S]ection 1016.5 allows a court to vacate a conviction only if the trial court has
failed to advise the defendant of potential adverse immigration consequences at the time
of the plea. The statutory motion cannot be used to assert defense counsel’s failure to
provide adequate representation relating to immigration consequences.” (Chien, supra,
159 Cal.App.4th at p. 1285, italics in original.)
       “We review a motion to vacate under section 1016.5 for abuse of discretion.”
(People v. Gutierrez (2003) 106 Cal.App.4th 169, 172.)
The Trial Court Did Not Abuse its Discretion in Denying the Motion to Vacate
       Here, the trial court did not abuse its discretion in concluding that defendant failed
to establish the first element for his motion to vacate. Although an oral advisement of
immigration consequences would have been a preferable practice, the record here shows
that the written plea form and accompanying questioning regarding the plea form
constituted an adequate advisement of immigration consequences.
       The plea form included the specific language required by section 1016.5,
subdivision (a). The plea form advised defendant that if he was “not a citizen of the
United States, [his] plea of guilty or no contest in this case may result in [his] deportation
(removal), exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” At the plea hearing, the trial court questioned
defendant to ensure that he had read the plea form and understood the contents of the plea
form. In response to the questioning, defendant affirmed that he had “carefully”
reviewed the plea form and had no questions regarding the contents of the plea form.
The trial court noted that defendant “spent awhile” filling out the plea form, thereby

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suggesting that defendant had thoroughly reviewed the form. The record thus
demonstrates that defendant read and understood the contents of the plea form, including
the advisement regarding immigration consequences. Indeed, defendant conceded as
much in his 2004 habeas declaration. In that declaration, defendant declared that “at the
time of [his] plea,” the “court did advise [him] that a plea of guilty in connection with
[his] case could lead to immigration consequences.” On this record, we find no abuse of
discretion in the determination that defendant was adequately advised of the immigration
consequences of his plea. (See generally Quesada, supra, 230 Cal.App.3d at p. 536 [the
trial court sufficiently advises a defendant of immigration consequences if the section
1016.5 advisement is included in the plea form and the trial court engages in questioning
to ensure that the defendant read and understood the plea form].)
       Defendant contends that he was improperly advised under section 1016.5 because
“the trial court never asked [him] if he actually read the written waiver of rights form.”
(Italics in original.) This argument is unpersuasive. Although the trial court did not use
the word “read” when questioning defendant about the plea form, the colloquy between
the trial court and defendant established that defendant read and understood the form.
We do not believe that the trial court was required to use the specific word “read” when
questioning defendant about the plea form.
       Defendant also makes the following argument in support of his claim that he was
improperly advised of immigration consequences: “There is no question that [defense
counsel] can totally botch a defendant’s initialing the correct boxes in a written waiver of
rights form. It is the obligation of the District Attorney and the Court to make sure that
the correct boxes are initialed. The District Attorney and Court in this instance should
have told the defendant he needed to initial the box on the alien advisement.”
Defendant’s argument again is unpersuasive. Defendant fails to cite any authority that
obligates the trial court or the prosecutor to ensure that the appropriate boxes are initialed

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on a plea form. Moreover, the essence of defendant’s argument is that his own attorney
failed to provide adequate representation in regard to immigration consequences.
Defendant’s argument fails because a section 1016.5 motion to vacate “cannot be used to
assert defense counsel’s failure to provide adequate representation relating to
immigration consequences.” (Chien, supra, 159 Cal.App.4th at p. 1285, italics omitted.)
       In sum, the record shows that the trial court adequately advised defendant of
immigration consequences before he entered his no contest plea. We therefore find no
abuse of discretion in the denial of defendant’s motion to vacate, and we must affirm.
                                       DISPOSITION
       The order denying defendant’s motion to vacate is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




People v. Alisudjana
H041645




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