Filed 12/17/14 P. v. Samayoa CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B256993

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. A375170)
         v.

FIDEL SAMAYOA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig
Richman, Judge. Affirmed.
         Law Office of Eduardo Paredes, Eduardo Paredes for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Steven D. Matthews, Supervising Deputy Attorney General, Jessica C. Owen,
Deputy Attorney General, for Plaintiff and Respondent.
                                     INTRODUCTION
       Defendant and appellant Fidel Samayoa appeals from the denial of his Penal Code
section 1016.5 (section 1016.5) motion to vacate his 1982 conviction for selling
marijuana in violation of Health and Safety Code section 11360. He contends that prior
to pleading guilty to that offense, the prosecutor did not properly advise him of the
immigration consequences of his plea. We affirm.


                                     BACKGROUND1
       On January 29, 1982, defendant and appellant Fidel Samayoa pleaded guilty to
selling marijuana. In advising defendant of the consequences of his guilty plea, the
prosecutor stated: “I have to advise you as I have to advise any other defendant who is
pleading guilty, that if you are not a citizen of the United States, pleading guilty to this
offense could result in your deportation or denial of reentry privileges and denial of
citizenship and the denial of work privileges. [¶] Do you understand that those are
possibilities if you are not a citizen of the United States, and if you plead guilty to this
offense?” Defendant responded, “Yes.”
       On January 28, 2003, defendant moved, pursuant to Penal Code section 1203.4,2
to vacate the guilty verdict and dismiss the information regarding his 1982 conviction.
The trial court granted the motion. On August 19, 2013, defendant moved, pursuant to
section 1016.5, to vacate his 1982 conviction arguing that he had not been advised of the
immigration consequences of his guilty plea. The trial court denied the motion, finding
that the prosecutor’s advisement of the immigration consequences of defendant’s guilty
plea substantially complied with section 1016.5.


1     We limit our recitation of facts to those relevant to defendant’s section 1016.5
motion.

2      Penal Code section 1203.4 authorizes relief to a person who has successfully
completed probation by expunging the person’s conviction from his or her record.
(People v. Martinez (2013) 57 Cal.4th 555, 560.) “That action, however, has no effect on
the federal immigration consequences of his conviction.” (Ibid.)

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                                      DISCUSSION
The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Section
1016.5 Motion to Vacate His 1982 Conviction
       Although not entirely clear, defendant appears to contend that the trial court erred
in denying his section 1016.5 motion to vacate his 1982 conviction because the
prosecutor’s advisement about the immigration consequences of his guilty plea was
defective as it did not use section 1016.5’s exact language. Defendant also may contend
that the prosecutor’s advisement was defective because it incorrectly suggested to
defendant that his conviction “may” subject him to adverse immigration consequences
instead of advising him that it “would” have such consequences.3 The trial court did not
abuse its discretion in finding that the prosecutor’s advisement substantially complied
with section 1016.5 and in denying defendant’s section 1016.5 motion.4
       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, except offenses designated as infractions 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.
       “(b)   Upon request, the court shall allow the defendant additional time to
consider the appropriateness of the plea in light of the advisement as described in this


3       In his opening brief, defendant discusses Padilla v. Kentucky (2010) 559 U.S. 356,
which concerns a claim of ineffective assistance of counsel based on counsel’s failure to
advise the defendant of the immigration consequences of his plea. Defendant does not
raise, however, an ineffective assistance of counsel claim on appeal.

4     Because we hold that the trial court did not abuse its discretion in denying
defendant’s section 1016.5 motion, we need not address defendant’s claim of prejudice.

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section. If, after January 1, 1978, 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. Absent a record that the court provided the advisement
required by this section, the defendant shall be presumed not to have received the
required advisement.”
       We review a trial court’s ruling on a section 1016.5 motion for abuse of discretion.
(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) “To prevail on a
motion brought pursuant to Penal Code section 1016.5, a defendant must establish: (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, i.e., if properly advised, he or she
would not have pleaded guilty or nolo contendere. (Zamudio, supra, 23 Cal.4th at pp.
192, 199-200, 209.)” (People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.)
       Defendant contends that the advisement he received—“if you are not a citizen of
the United States, pleading guilty to this offense could result in your deportation or denial
of reentry privileges and denial of citizenship and the denial of work privileges”—failed
to advise him in the “statutory language required under . . . [section] 1016.5” that his
guilty plea would have the immigration consequence of “exclusion from admission to the
United States.” If by this contention defendant is arguing that a section 1016.5
advisement must follow exactly that statute’s language, the contention fails because “only
substantial compliance is required under section 1016.5 as long as the defendant is
specifically advised of all three separate immigration consequences of his plea.” (People
v. Gutierrez (2003) 106 Cal.App.4th 169, 174 [rejecting the argument that “any variance
from the literal language of the legislation requires a plea to be vacated”].) The

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advisement that defendant’s conviction for selling marijuana might have the immigration
consequence that he would be denied “reentry privileges”—i.e., reentry into the United
States—substantially complied with section 1016.5’s requirement that he be advised that
his conviction might result in his “exclusion from admission to the United States.” (Ibid.
& fn. 4 [“the phrase ‘denied re-entry’ is the legal equivalent of ‘exclusion of admission’;
moreover, linguistically ‘denied re-entry’ is a more precise statement of the
consequence”].)
       Defendant also appears to contend that the prosecutor’s advisement failed to
comply with section 1016.5 because it told defendant that his guilty plea “may” rather
than “would” have adverse immigration consequences. The statute mandates that a
defendant be advised that his guilty plea “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.” (Italics added.) Because section 1016.5 expressly uses the
word “may” and not “will,” the prosecutor properly advised defendant of the immigration
consequences of his guilty plea. Accordingly, the trial court did not abuse its discretion
in denying defendant’s section 1016.5 motion.




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                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                MOSK, Acting P. J.

We concur:



             KRIEGLER, J.




             GOODMAN, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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