Filed 1/7/16
                              CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                         DIVISION SIX




THE PEOPLE,                                                 2d Crim. No. B261602
                                                         (Super. Ct. No. 2013026418)
     Plaintiff and Respondent,                                (Ventura County)

v.

CIRILA VERASTEGUI ARAUJO,

     Defendant and Appellant.



                 In an all-to-familiar ploy, Cirila Verastegui Araujo seeks to avoid a
consequence of her criminal conduct, i.e. deportation from the United States of America.
She appeals an order denying a post-judgment motion to vacate her conviction by guilty
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plea to first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a).) She claims
that the trial court failed to properly advise her of the immigration consequences of the
conviction when the change of plea was entered. (§ 1016.5.) The appeal is not only
without merit, it borders on being frivolous. We affirm.
                 In 2013, appellant, represented by counsel, pled guilty to first degree
residential burglary with the understanding that she would be granted probation with 365
days county jail. The trial court dismissed a robbery charge as part of the negotiated
disposition. It was a favorable negotiated disposition because appellant was facing a


1
    All statutory references are to the Penal Code.
possible six year prison sentence. The change of plea was pursuant to a "Felony
Disposition Statement" signed by appellant. Under the section entitled
"CONSEQUENCES OF PLEA AND ALL ADMISSIONS - ALL CASES," appellant
initialed the following paragraph: "If I am not a citizen, I could be deported, excluded
from the United States or denied naturalization. (Pen. Code, § 1016.5.) If I am not a
citizen and am pleading guilty to an aggravated felony, conspiracy, a controlled substance
offense, a firearm offense, or under certain circumstances a moral turpitude offense, or a
domestic violence offense, I will be deported, excluded from the United States and
denied naturalization. (8 U.S.C. §§ 1101 (a) (43), 1182, 1227.) "
              When the change of plea was entered on November 15, 2013, appellant
acknowledged that Spanish interpreter read the entire "felony disposition statement" to
her in the Spanish language. She also acknowledged that she had discussed the change of
plea with her attorney and understood and agreed with what was stated on the change of
plea form. The trial court factually found that appellant understood the consequences of
entering the plea and that the change of plea was knowing, intelligent, free, and
voluntary.
              On December 17, 2013, the trial court read and considered the probation
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report which indicated that appellant was subject to an immigration hold. The trial court
suspended imposition of sentence and granted three years supervised probation with 365
days county jail. Appellant received 233 days presentence custody credit.
              On October 28, 2014, appellant retained new counsel, Zulu Ali, and
filed a motion to vacate the conviction on the theory that she was not advised of the
consequences of deportation when the change of plea was entered. Counsel argued
that the change of plea form was not signed by the Spanish interpreter and "[t]hat leads
me to believe . . . that [appellant] was not properly advised when she filled out this


2
 We have taken judicial notice of the probation report (Evid. Code, §§ 452, subd. (d);
459) which shows that appellant was not screened for work furlough because of the
immigration hold.


                                              2
form. . . ." The court minutes, however, show that a Spanish language interpreter was
present and interpreted for appellant when the change of plea was entered. In addition,
appellant orally told the trial court that the interpreter read the entire "felony disposition
statement" to her. Denying the motion, the trial court factually found that appellant was
advised of the possible deportation consequence of her plea.
              "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 complains that the trial court did not provide a section 1016.5
verbal advisement. That is not required. "[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 (2003) 106 Cal.App.4th 169, 175
[court may rely on executed form]; People v. Quesada (1991) 230 Cal.App.3d 525, 533-
534 [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. (People v. Superior Court (Zamudio) 23 Cal.4th 183, 207-208 (Zamudio);
People v. Gutierrez, supra, 106 Cal.App.4th at p. 175.) Here, there is certainly
substantial compliance.
              Appellant argues that the written advisement is misleading because it
                            3
contains surplus language. It tracks the language of section 1016.5 but states if the
defendant is not a citizen and pleads guilty to an "aggravated felony, conspiracy, a
controlled substance offense, a firearm offense, or under some circumstances a moral

3
 Section 1016.5, subdivision (a) sets forth the following advisement: "If you are not a
citizen, you are hereby advised that the 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."


                                               3
turpitude offense, or a domestic violence offense," defendant will be deported, excluded
and/or denied naturalization. Appellant argues that the language would lead a reader to
believe that deportation would occur only under the listed circumstances.
              We reject the argument because section 1016.5 requires only that appellant
be advised of possible deportation consequences. "Superfluity does not vitiate." (Civ.
Code, § 3537.) 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, supra, 106 Cal.App.3d at p. 174, fn. 4 [no obligation to advise on immigration
consequences that defendant may suffer other than the ones listed in section 1016.5;
People v. Barocio (1989) 216 Cal.App.3d 99, 105 [no obligation to advise on right to
request a "recommendation against deportation" under 8 U.S.C. former § 1251(b)(2).]
              A defendant who moves to set aside a 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.) It is a
factual question for the trial court. (Id., at p. 210.) Appellant's self-serving declaration
states: "It was not until I was taken into custody by Immigration and Customs
Enforcement that I realized the immigration consequences of the plea in the case." (See
In re Resendiz (2001) 25 Cal.4th 230, 253 [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].) However, prior to the entry of the plea, appellant knew she was subject to an
immigration hold. Appellant's declaration states that she had been served with a Notice
to Appear by Immigration and Customs Enforcement.
              Appellant makes no showing that she would have pleaded differently if she
had received a different section 1016.5 advisement. "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 [her] deportable and excludable, it is equally true that a


                                              4
conviction following trial would have subjected [her] to the same immigration
consequences." (In re Resendiz, supra, 25 Cal.4th at p. 254.)
              Appellant has a lengthy criminal record that included a 2002 conviction for
petty theft (§ 484, subd. (a)), a 2006 conviction for possession of cocaine,
methamphetamine, heroin, and prescription pills (Health & Saf. Code, §§ 11377, subd.
(a); 11350, subd. (a)), a 2006 conviction for unlawful use of personal information to
make unauthorized purchases (§ 530.5, subd. (a)), a 2008 conviction for narcotics use
(Health & Saf. Code, § 11550, subd. (a)), a, 2010 conviction for theft (§ 484, subd. (a)),
and a 2013 conviction for aggravated trespass (§ 602.5, subd. (b)). The probation report
also shows that in 2009, appellant voluntarily returned to Mexico to avoid federal
prosecution for unlawful reentry by a deported alien. (8 U.S.C. § 1326.)
              Given her criminal history, the record made when she entered into the
negotiated disposition, and the fact that she voluntarily returned to Mexico to avoid
federal criminal prosecution in 2009, the showing of unawareness of deportation seems
as disingenuous to us as it must have been to the trial court. It is not reasonably probable
that she would have foregone the distinctly favorable outcome she negotiated had she
been advised in some other manner about the immigration consequences of pleading
guilty. (See e.g., In re Resendiz, supra, 25 Cal.4th at p. 254.)
              The judgment (order denying motion to withdraw plea) is affirmed.
              CERTIFIED FOR PUBLICATION.
.


                                           YEGAN, J.

We concur:


              GILBERT, P. J.


              PERREN, J.



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                                  Nancy Ayers, Judge
                            Superior Court County of Ventura
                           ______________________________




             California Appellate Project, under appointment by the Court of Appeal,
Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Analee J. Brodie, Deputy Attorney
General, for Plaintiff and Respondent.




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