Filed 1/30/15 P. v. Leyva CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050647

                  v.                                                   (Super. Ct. No. 07CF3575)

ALEJANDRO ORGANISTA LEYVA,                                             OPINION

     Defendant and Appellant.


                   Appeal from an order made after judgment of the Superior Court of Orange
County, Gregg L. Prickett, Judge. Affirmed.
                   Marta I. Stanton, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.




                                             *               *               *
              In March 2008, defendant and appellant Alejandro Organista Leyva
pleaded guilty to possession of marijuana for sale, sale or transportation of marijuana,
possession of cocaine for sale, and sale or transportation of cocaine. (Health and Saf.
Code, §§ 11359, 11360, subd, (a), 11351 & 11352, subd. (a).)
              In August 2014, Leyva filed a motion to vacate his guilty plea on the
grounds the trial court did not properly advise him of the potential immigration
consequences prior to accepting his guilty plea. (Pen. Code, § 1016.5.) The trial court
denied the motion, finding Leyva was properly advised and, in any event, Leyva was not
prejudiced. Leyva appealed.
              We appointed counsel to represent Leyva. She filed a brief which set forth
the facts and the procedural history of the case. She did not argue against Leyva, but
advised she had not found any issues to argue on Leyva’s behalf. (People v. Wende
(1979) 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738.) However, to assist us
in our independent review, she suggested we consider whether the trial court erred when
it found Leyva was properly advised and was not prejudiced in any event.
              We notified defendant he could file written argument on his own behalf,
but the period to do so has passed and we received no communication from him.
              We reviewed the record according to our obligations under Wende, supra,
25 Cal.3d 436 and Anders, supra, 485 U.S. 738, and we considered the issues suggested
by counsel, but we found no arguable issues on appeal.
                                      DISCUSSION
              In support of his motion, Leyva submitted a declaration in which he stated
he was not advised by the trial court of the potential immigration consequences of his
guilty plea. He also stated he was deported for the offenses to which he pled guilty and
was currently residing in Mexico. Further, he stated that had he known he would be
deported or there was a chance he would be deported, he would have taken the case to
trial.

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              Leyva also submitted a declaration from an immigration attorney which
stated the offenses to which Leyva pled guilty mandated deportation. Finally, Leyva
provided a reporter’s transcript which indicates the trial court did not read the
immigration advisement to him before accepting his guilty plea.
              To prevail on a motion to withdraw a plea under Penal Code section
1016.5, a defendant must establish: (1) the trial court failed to advise him as required; (2)
there is more than a remote possibility that his conviction will have one or more of the
specified adverse immigration consequences; and (3) had he been properly advised, he
would not have pled guilty. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183,
192, 199-200.) We review the trial court’s denial for abuse of discretion. (Id. at p. 192.)
              Before accepting a guilty plea, the trial court must advise the defendant of
three specific, potential immigration consequences: deportation, exclusion, and denial of
naturalization. (Pen. Code, § 1016.5, subd. (a).) The advisements must appear on the
record, but they need not be given orally by the judge in open court. Instead, a validly
executed waiver is a proper substitute for verbal admonishment. (In re Ibarra (1983) 34
Cal.3d 277, 285-286, overruled on other grounds in People v. Mosby (2004) 33 Cal.4th
353, 360-361; People v. Ramirez (1999) 71 Cal.App.4th 519, 521-522.)
              Paragraph 11 of the guilty plea form used in this case contained the
required immigration advisements, separately initialed by Leyva in the box provided.
Before accepting Leyva’s guilty plea, the trial judge asked if he had a chance to read, sign
and place his initials in the boxes on the guilty plea form, and Leyva said he had. The
trial court also asked Leyva if he had a chance to go over the form with his attorney, and
again Leyva said he had.
              Thus, the record shows Leyva read and understood the guilty plea form,
including the immigration advisements, and had a chance to discuss it with counsel.
Consequently, the trial court did not abuse its discretion by denying Leyva’s motion to
vacate his guilty plea on the grounds the immigration advisement was adequate.

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Therefore, we need not reach the alternative grounds for denial—Leyva’s failure to show
prejudice.
                                   DISPOSITION
             The judgment is affirmed.




                                               THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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