Filed 10/3/13 P. v. Cisneros 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B244950

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA027430)
         v.

GILBERTO CISNEROS,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of the County of Los Angeles,
Barbara R. Johnson, Judge. Affirmed.
         Rene A. Ramos for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and David
E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION


       In November 1990, defendant and appellant Gilbert Cisneros (defendant) pleaded
nolo contendere to one count of possession of cocaine for sale and was placed on
probation.1 Almost twenty-two years later, in August 2012, defendant filed a motion to
vacate his judgment of conviction and withdraw his plea (motion to vacate) under Penal
Code section 1016.5 (section 1016.5). The trial court denied the motion. On appeal from
the order denying the motion to vacate, defendant contends that the immigration
advisement language in the minute order memorializing his plea was insufficient to
satisfy the requirements of section 1016.5.
       Because the record on appeal did not include the reporter’s transcript for the
proceeding at which defendant pleaded nolo contendere, following briefing on this
appeal, we obtained the reporter’s transcript from defendant’s earlier appeal from the trial
court’s order revoking his probation and, on our own motion, we took judicial notice of
that transcript. The reporter’s transcript from the earlier appeal included the transcript
from the November 1990 proceeding at which defendant pleaded nolo contendere, which
transcript affirmatively demonstrates that defendant was adequately advised of the
immigration consequences of his plea.
       We hold that because the oral immigration advisement given at the proceeding at
which defendant pleaded nolo contendere adequately advised defendant of the
immigration consequences of his plea, as required under section 1016.5, subdivision (a),
the trial court did not abuse its discretion in denying the motion to vacate on the grounds
that defendant was adequately advised. We therefore affirm the order denying that
motion.




1     Approximately two years after defendant’s plea, the trial court found that
defendant had violated the terms of his probation and sentenced him to prison.
Defendant then appealed from the trial court’s order revoking his probation.

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                  FACTUAL AND PROCEDURAL BACKGROUND


       An October 18, 1990, minute order reflects that defendant was charged with
violating Health and Safety Code sections 11352, subdivision (a) and 11351. That
minute order further reflects that at defendant’s arraignment hearing, he was advised,
inter alia, as follows: “If you are not a citizen, you are hereby advised that a conviction
of the offense for which you have been charged may have the consequences of
deportation, exclusion from admission into the United States, or denial of naturalization
pursuant to the laws of the United States.”
       On November 27, 1990, defendant waived his right to jury trial, withdrew his plea
of not guilty, and pleaded nolo contendere to a violation of Health and Safety Code
section 11352, subdivision (a). The minute order memorializing defendant’s guilty plea
provided the following concerning the immigration consequences of his plea:
“Defendant advised of possible effects of plea on any alien/citizenship/probation/parole
status.” But, the reporter’s transcript from the November 27, 1990, proceeding at which
defendant entered his plea reflects that the district attorney orally advised defendant as
follows: “Also I have to advise you if you are not a citizen of the United States your plea
could cause you to be deported, denied re-entry, or the right to become a naturalized
citizen.” In response to the oral immigration advisement, defendant stated, “I am. I have
a green card.” After taking defendant’s plea, the trial court made the following findings.
“This Court finds that the defendant freely and voluntarily, and with knowledge of the
consequence, enters a guilty plea to a violation of section 11352[A] of the Health and
Safety Code, [and] that this plea is knowingly and understandingly entered.”
       On August 7, 2012, defendant filed his motion to vacate pursuant to section
1016.5. The motion was supported by defendant’s declaration and several documentary
exhibits. In his declaration, defendant asserted, inter alia, that “[w]hen [he] entered [his]
plea, [he] was not advised by [his trial] counsel or the [trial] court regarding the
immigration consequences of [his] plea. [He] did not know [his] plea could result in
deportation, exclusion from admission, and inability to become a naturalized citizen. [¶]

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Consequently, [defendant] was surprised and distressed when [his immigration] attorney
informed [him] that there would be detrimental immigration consequences. [Defendant]
had a consultation with immigration attorney, Enrique Arevalo, who informed him that
because of the nature of [his] conviction, [he] would not be able to ever adjust [his]
immigration status or become a United States citizen. [¶] If [defendant] had known of
these dire consequences, [he] would never have accepted the plea. Instead, [he] would
have consulted [his trial] attorney about the consequences and exercised [his] right to a
jury trial or negotiated a plea without adverse immigration consequences.” Defendant
further explained that “[he did] not recall ever receiving any sort of advisement
regarding the immigration consequences that would result from [his] plea. If [he] had
known of such consequences, [he] would not have accepted [the] plea [bargain]. Thus,
[he] did not knowingly and intelligently enter [his] plea.” (Italics added.)
       At the hearing on defendant’s motion to vacate, the prosecution argued that the
immigration advisement language in the minute order reflecting defendant’s plea was
substantially similar to the language required under section 1016.5, subdivision (a) and
therefore demonstrated that defendant had been advised of the immigration consequences
of his plea.2 Defendant’s counsel responded by contending that the advisement language
in the minute order was inadequate and did not comply with the mandatory immigration
advisements contained in that section. The trial court disagreed with defendant’s counsel
and denied the motion to vacate, thereby impliedly finding that the immigration
advisement language in the minute order was sufficient to satisfy the requirements of
section 1016.5, subdivision (a). Defendant timely appealed from the order denying his
motion to vacate.
       Following briefing, we obtained the reporter’s transcript from the file in
defendant’s appeal from the trial court’s order revoking his probation—which transcript



2      Because the reporter’s notes for the oral proceeding on defendant’s plea had been
destroyed, the reporter’s transcript for that proceeding was not available at the hearing on
defendant’s motion to vacate.

                                             4
included the November 27, 1990, transcript of defendant’s plea—advised the parties that
we were taking judicial notice of that transcript, and requested letter briefs from the
parties as to the effect, if any, of that transcript on the disposition of this appeal.
Thereafter, we also advised the parties of their right to object to the propriety of taking
judicial notice of the November 27, 1990, reporter’s transcript. In response to our letters,
defendant objected to the propriety of our taking judicial notice of the transcript, and each
party filed letter briefs addressing the effect of that transcript on this appeal, which
objection and letter briefs we have reviewed and considered.
       As to defendant’s objection to the propriety of this court taking judicial notice of
the November 27, 1990, reporter’s transcript because it was not before the trial court on
his motion to vacate, we reject that objection. “Evidence Code section 452 states in
pertinent part: ‘Judicial notice may be taken of the following matters . . . (d) Records of .
. . (2) any court of record of the United States.’ Evidence Code section 459, subdivision
(a), permits but does not require a reviewing court to take judicial notice of matters
specified in Evidence Code section 452. Although judicial notice is thus permissible in
this case, several courts have cautioned against judicially noticing matters that were not
before the trial court. ‘[A]s a general rule the [appellate] court should not take . . .
[judicial] notice if, upon examination of the entire record, it appears that the matter has
not been presented to and considered by the trial court in the first instance.’ (People v.
Preslie (1977) 70 Cal.App.3d 486, 493 [138 Cal.Rptr. 828]; People v. Meza (1984) 162
Cal.App.3d 25, 33 [208 Cal.Rptr. 576] [following Preslie]; DeYoung v. Del Mar
Thoroughbred Club (1984) 159 Cal.App.3d 858, 863 [206 Cal.Rptr. 28] [same]; People
v. Hamilton (1986) 191 Cal.App.3d Supp. 13, 21-22 [236 Cal.Rptr. 894] [following
Preslie].) Such a rule prevents the unfairness that would flow from permitting one side to
press an issue or theory on appeal that was not raised below. (Hamilton, supra, at p.
Supp. 22.) [¶] . . [¶] [However,] Evidence Code section 459, subdivision (d), provides
certain procedural safeguards when a reviewing court takes judicial notice. (Footnote
omitted.) By providing for special rules for situations in which a party seeks judicial
notice of information ‘not received in open court or not included in the record of the

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action’ (Evid. Code, § 459, subd. (d)), the Evidence Code clearly contemplates that, at
least in some situations, a reviewing court will grant judicial notice even when the
information was not presented to the trial court. (See People v. Belcher (1974) 11 Cal.3d
91, 94, fn. 2 [113 Cal.Rptr. 1, 520 P.2d 385] [granting judicial notice of matters not made
part of the record at trial].)” (People v. Hardy (1992) 2 Cal.4th 86, 134.)
       In the instant case, we deem it appropriate to take judicial notice of the transcript.
It is from the appellate record in an earlier appeal in the same case. Moreover, it is the
transcript of the proceeding which is the subject of this appeal, i.e., the transcript of the
proceeding during which defendant initially claimed he was not given the required
immigration advisement. Because the transcript is directly relevant to the dispositive
issue on this appeal—whether defendant was adequately advised of the immigration
consequences of his plea—and because we perceive no prejudice to defendant from
considering the true facts relating to the subject immigration advisement, we take judicial
notice of the transcript.


                                       DISCUSSION


       A.     Standard of Review
       A trial court’s ruling on a motion to vacate a plea under section 1016.5 is governed
by an abuse of discretion standard of review. (People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 192 (Zamudio).) “An order denying a section 1016.5 motion will
withstand appellate review unless the record shows a clear abuse of discretion.
([Zamudio, supra], 23 Cal.4th [at p.] 192 [96 Cal.Rptr.2d 463, 999 P.2d 686], citing
People v. Shaw (1998) 64 Cal.App.4th 492, 495-496 [74 Cal.Rptr.2d 915]; see also §
1016.5, subd. (c).) An exercise of a court’s discretion in an arbitrary, capricious, or
patently absurd manner that results in a manifest miscarriage of justice constitutes an
abuse of discretion. (Shaw, supra, at p. 496.)” (People v. Limon (2009) 179 Cal.App.4th
1514, 1517-1518.)



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       B.     Legal Principles
       In Zamudio, supra, 23 Cal.4th 183, the Supreme Court summarized the
requirements of section 1016.5.3 “By its terms, section 1016.5 applies whenever, ‘after
January 1, 1978, the court fails to advise the defendant as required’ and ‘the defendant




3       Section 1016.5 provides, in pertinent 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 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. [¶] . . . [¶] (d) The
Legislature finds and declares that in many instances involving an individual who is not a
citizen of the United States charged with an offense punishable as a crime under state
law, a plea of guilty or nolo contendere is entered without the defendant knowing that a
conviction of such offense is grounds for deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of the United States.
Therefore, it is the intent of the Legislature in enacting this section to promote fairness to
such accused individuals by requiring in such cases that acceptance of a guilty plea or
plea of nolo contendere be preceded by an appropriate warning of the special
consequences for such a defendant which may result from the plea. It is also the intent of
the Legislature that the court in such cases shall grant the defendant a reasonable amount
of time to negotiate with the prosecuting agency in the event the defendant or the
defendant's counsel was unaware of the possibility of deportation, exclusion from
admission to the United States, or denial of naturalization as a result of conviction. It is
further the intent of the Legislature that at the time of the plea no defendant shall be
required to disclose his or her legal status to the court.” (Italics added.)


                                              7
shows that conviction of the offense . . . may have the consequences’ specified therein.
(§ 1016.5, subd. (b).) In such circumstances, section 1016.5 provides that, ‘on
defendant’s motion,’ the court ‘shall vacate the judgment and permit the defendant to
withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.’ (Id., subd.
(b).) [¶] Section 1016.5 contains an express statement of the legislative intent underlying
the statute. (§ 1016.5, subd. (d).) The Legislature was concerned about the ‘many
instances involving an individual who is not a citizen of the United States charged with
an offense punishable as a crime’ in which ‘a plea of guilty or nolo contendere is entered
without the defendant knowing that a conviction of such offense is grounds for
deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.’ (Ibid.) ‘Therefore,’ the Legislature declared,
section 1016.5 was enacted ‘to promote fairness to such accused individuals by requiring
in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by
an appropriate warning of the special consequences for such a defendant which may
result from the plea.’ (Id., subd. (d).) (Footnote omitted.) Partly on the basis of section
1016.5, subdivision (d), some Courts of Appeal have expressly or impliedly engrafted
onto section 1016.5 prejudice or diligence requirements—most commonly that the
defendant was, in fact, ignorant of potential adverse immigration consequences, or that he
would not have pleaded guilty had proper advisements been given. (See, e.g., People v.
Castaneda (1995) 37 Cal.App.4th 1612, 1617-1622 [44 Cal.Rptr.2d 666]; People v.
Murillo (1995) 39 Cal.App.4th 1298, 1305 [46 Cal.Rptr.2d 403]; People v. Aguilera
(1984) 162 Cal.App.3d 128, 130-132 [208 Cal.Rptr. 418].)” (Zamudio, supra, 23 Cal.4th
at pp. 193-194.)


       C.     Analysis
       Section 1016.5 requires advisements as to three distinct immigration
consequences—deportation, exclusion from admission, and denial of naturalization. The
consequence which defendant claims to have suffered is denial of naturalization.



                                             8
       As noted, the record of the oral proceedings on the entry of the plea was not
available to the trial court at the hearing on the motion to vacate. As also noted, however,
the reporter’s transcript for that proceeding on the plea is now part of the record on
appeal. Contrary to defendant’s assertion that he did not receive an immigration
advisement, it appears that defendant was adequately advised about the immigration
consequences of his plea. Therefore, his motion to vacate had no merit from the outset.
       For the first time on appeal, defendant argues in his letter brief that the transcript
of the November 27, 1990, proceeding at which he pleaded nolo contendere raises a
factual issue as to whether he understood that the oral advisement applied to him and,
therefore, whether he knowingly and voluntarily entered his plea. He bases this argument
on his response to the oral immigration advisement in which he informed the trial court
that he was a citizen and that he had a green card. According to defendant, his response
shows that he misunderstood the legal significance of a green card and, based on that
misunderstanding, considered himself a citizen to whom the immigration advisement did
not apply.
       Because defendant did not raise this issue in the trial court, and instead argued
only that he was not advised of the immigration consequences of his plea, we do not
reach this newly raised factual issue on this appeal. (See Johnson v. Greenelsh (2009) 47
Cal.4th 598, 603 [“issues not raised in the trial court cannot be raised for the first time on
appeal”].) We cannot resolve a factual issue on appeal that must be raised in the first
instance in the trial court.




                                              9
                                    DISPOSITION


      The order denying the motion to vacate is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                MOSK, J.


I concur




             KUMAR, J.




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

                                           10
       Turner, P.J., Concurring



       I concur in the judgment.
       First, I would judicially notice the entire record in the prior appeal of defendant,
Gilberto Cisneros, in this case. (People v. Cisneros (B075747, Dec. 20, 1993)
[nonpub.opn.].) I believe that should occur after providing notice to the parties as
required by Evidence Code sections 455, subdivision (a) and 459, subdivision (c) and an
opportunity to object. What has happened previously in this case is relevant.
       Second, in my view, Judge Barbara R. Johnson denied defendant’s motion on
delay and reasonable probability of a different result grounds. Her implied findings in
this regard were reasonable and must be upheld. (People v. Gutierrez (2003) 106
Cal.App.4th 169, 176; People v. Avila (1994) 24 Cal.App.4th 1455, 1460; People v.
Goodner (1990) 226 Cal.App.3d 609, 619.) Thus, the uncontroverted documentary
evidence is defendant was advised twice prior to pleading no contest of the immigration
consequences of his plea. He was advised at his arraignment and at the time of his plea.
This is a third basis for affirming Judge Johnson’s order. Those implied findings render
moot defendant’s new contention he do not knowingly and intelligently waive his rights.
       Third, it is now clear defendant filed a misleading declaration concerning the
advisement of rights. Defendant’s July 12, 2012 declaration cleverly states no advice
concerning immigration consequences was given by defense counsel or the court when
the plea was entered. As far as it goes, defendant is correct in terms of what is set forth in
the reporter’s transcript. What defendant’s misleading declaration omits is the deputy
district attorney is the one who provided the advice concerning immigration
consequences. And, as noted, defendant fails to relate he was advised of the immigration
consequences when he was arraigned of October 18, 1990.
       This pattern of deceit is consistent with defendant’s conduct when he arrested on
the bench warrant issued December 20, 1991. After remaining at large until November 2,
1992, he appeared in court and had his attorney, Maureen Austin, claim he was not the
person named in the arrest warrant. A fingerprint check revealed defendant was lying.

                                 TURNER, P.J.




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