Filed 2/27/13 P. v. Martinez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B239550

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA120779)
         v.

AGUSTINE MARTINEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Leland H. Tipton, Judge. Affirmed.


         Karlin & Karlin, and Marc A. Karlin for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ___________________________
       Agustine Martinez appeals from the trial court’s denial of his motion to withdraw
his guilty plea. Martinez, who is not a United States citizen, asserts on appeal that he
received ineffective assistance of counsel because he was not advised of the immigration
consequences of his guilty plea. We affirm the trial court’s ruling.
                                           FACTS
       In a felony complaint dated July 19, 2011, Martinez was charged with one count
of oral copulation/sexual penetration of a child under 10 and three counts of committing a
lewd act upon a child. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a).)1 Martinez was
appointed a public defender and pled not guilty during the arraignment on July 19, 2011.
He subsequently retained private counsel and changed his plea to no contest as to one
count of committing a lewd act upon a child in exchange for a sentence of eight years in
state prison. He signed an advisement of rights, waiver and plea form, which also
required that he initial beside the warning that his “plea of guilty or no contest will result
in . . . deportation, exclusion from admission or reentry to the United States, and denial of
naturalization and amnesty.” This form was translated to Spanish by the court interpreter
for him. He was also advised of the immigration consequences of his plea orally by the
trial court. As a result, the trial court found that the waivers, including the one regarding
the immigration consequences of his plea, were made “knowingly, understandingly, and
explicitly made.”
       Martinez moved to withdraw his plea on January 13, 2012, on the ground that he
failed to understand the immigration consequences of his plea at the time he made it. In a
supporting declaration, Martinez stated:
       “4. I am making this request to withdraw my no contest plea because I was not
aware, at the time of making said plea, that the plea would mean I would be ineligible to
stay in the United States without any type of immigration relief. I entered this no contest
plea without an understanding of what would happen to me.



1
       All further section references are to the Penal Code unless otherwise specified.

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       “5. Moreover, my then-attorney, Manuel Eli Gonzalez, before I made my plea to
this Court, never fully informed me of the charges that were pending against me. Further,
Mr. Gonzalez never reviewed any of the police reports with me prior to my plea on
October 27, 2011, including my recorded interview with deputies of the Los Angeles
County Sheriff’s Department. Additionally, Mr. Gonzalez never informed me that I
would be subject to a term of eight years in state prison due to my plea. Moreover, Mr.
Gonzalez did not discuss my possible defenses to the charges filed against me prior to the
taking of my plea.”
       Martinez admitted that he did sign the plea form, which was translated into
Spanish for him, and that the court orally advised him of his waivers. Nevertheless, he
was too nervous that day to fully understand the immigration consequences of his plea.
He also maintained his innocence and claimed any incriminating statements made to
sheriff deputies were coerced and made under duress or trickery.
       Following a hearing on February 6, 2012, his motion was denied. Judgment was
entered on February 21, 2012, reflecting a sentence of eight years in state prison. He was
given a total credit of 237 days, which included 206 days actual custody and 31 days
good time/work time credit. Martinez timely filed his appeal with a certificate of
probable cause.
                                      DISCUSSION
       Martinez contends on appeal the trial court erred when it denied his motion to
withdraw his plea because he received ineffective assistance of counsel and did not
understand the immigration consequences of his plea. We review the trial court’s denial
of the motion to withdraw the plea for abuse of discretion and find no error. (People v.
Fairbank (1997) 16 Cal.4th 1223, 1254.)
       A defendant may seek to withdraw a plea of guilty for good cause shown at any
time before judgment or within six months after an order granting probation is made if
entry of judgment is suspended. (§ 1018.) Ineffective assistance of counsel may
constitute good cause to set aside a plea. (In re Vargas (2000) 83 Cal.App.4th 1125,
1142.) In order to prevail on a claim of ineffective assistance of counsel, a defendant

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must show: (1) counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness; and (2) the deficient performance prejudiced defendant, i.e.,
he would have rejected the plea bargain and insisted on a trial. (Strickland v. Washington
(1984) 466 U.S. 668, 690, 694; Hill v. Lockhart (1985) 474 U.S. 52, 58-59.) It is the
defendant’s burden to prove by a preponderance of the evidence his entitlement to relief.
(In re Resendiz (2001) 25 Cal.4th 230, 253, abrogated on another ground in Padilla v.
Kentucky (2010) 559 U.S. 356, ___;130 S.Ct. 1473, 1484 (Padilla).)
       The Supreme Court has held that where the deportation consequence of a guilty
plea is clear, defense counsel has a duty to correctly advise the defendant of those
consequences and a failure to do so amounts to deficient assistance of counsel under
prevailing professional standards. (Padilla, supra, 130 S.Ct. at pp. 1483-1485.)
Prejudice, i.e., a defendant’s assertion that he would not have pled guilty must be
corroborated independently by objective evidence, such as whether counsel actually and
accurately communicated the offer to the defendant, whether the defendant was amenable
to negotiating a plea bargain, whether the prosecutor might ultimately have agreed to a
conviction that would have allowed the defendant to avoid adverse immigration
consequences, the actual disparity between the sentence offered in the bargain and the
one risked by going to trial, and the probable outcome of a trial had once been held. (In
re Resendiz, supra, 25 Cal.4th at p. 253; In re Alvernaz (1992) 2 Cal.4th 924, 945.)
       The record clearly reflects Martinez was advised of the immigration consequences
of his plea. The trial court orally informed Martinez that if he was not a citizen of the
United States, his plea would “cause [him] to be deported, denied re-entry and denied
naturalization in this country.” In the plea form that Martinez admitted was translated to
him, he placed his initials in the box next to an advisement of the same immigration
consequences. Martinez signed that plea form indicating “I have read and initialed each
of the paragraphs above and discussed them with my attorney. My initials mean that I
have read, understand and agree with what is stated in the paragraph. . . .” Gonzalez
signed the same plea form, below a paragraph indicating he reviewed the form with
Martinez and explained to him the consequences of the plea.

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       Likewise, Martinez has failed to present evidence of prejudice resulting from the
ineffective assistance of counsel. He presented no evidence the prosecution was willing
to agree to a plea that would allow him to avoid subsequent deportation. Neither did he
explain how he would have avoided conviction had he gone to trial. The record shows,
instead, that the plea bargain allowed Martinez to avoid a potential life sentence in
exchange for eight years in state prison. Martinez faced one count of oral
copulation/sexual penetration of a child under 10, which carries a term of 15 years to life,
and three counts of committing a lewd act upon a child, which each carry a maximum
sentence of eight years. (§§ 288.7, subd. (b), & 288, subd (a).) Though he claims they
were made under duress, Martinez acknowledges he “made incriminating statements” in
an interview with Los Angeles County Sheriffs. Other than a general declaration of
innocence, Martinez makes no attempt to describe any defenses that were available to
him or what evidence may have exonerated him.
                                     DISPOSITION
       The order denying Martinez’s motion to withdraw his plea is affirmed.




                                                         BIGELOW, P. J.


We concur:


              RUBIN, J.




              FLIER, J.




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