Filed 5/21/14 P. v. Gonzalez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                          B248464

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA068258)
         v.

OSCAR CHAVEZ GONZALEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Gilbert
Rudy Ruiz, Judge. Affirmed.
         Eduardo Paredes for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Tasha G. Timbadia, Deputy Attorney
General, for Plaintiff and Respondent.
                                 _________________________________
       Defendant Oscar Chavez Gonzalez appeals from an order denying his motion to
vacate his 2004 conviction on the ground he was not advised of the immigration
consequences of his no contest plea.
       We affirm because the record reflects the trial court advised him of the potential
immigration consequences of his plea, and defendant has failed to make a prima facie
showing of ineffective assistance of counsel.
                                     BACKGROUND
1.     Defendant’s convictions
       In October of 2004, defendant was charged with possession of methamphetamine;
possession of a smoking device; misdemeanor resisting, obstructing, or delaying a peace
officer; and destroying evidence. The latter two counts were dismissed pursuant to Penal
Code section 1385.
       On October 26, 2004, defendant pleaded no contest to possession of
methamphetamine and a smoking device. He initialed and signed a written Advisement
of Rights, Waiver, and Plea form that included the following language: “I understand
that if I am not a citizen, my guilty or no contest plea will result in my deportation
(removal), exclusion from admission to the United States, or denial of naturalization.”
Although the court reporter had no notes and could not prepare a transcript of the plea
and sentencing hearing, the trial court’s minute order reflects defendant was advised of
his rights and the consequences of his potential plea, including the following: “If you are
not a citizen, you are hereby advised that a conviction of the offense for which you have
been charged will have the consequences of deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of the United States.” The
minute order further reflects defense counsel joined in the waivers and concurred in the
no contest pleas.
       Imposition of sentence was suspended and defendant was placed on probation.
Defendant was thereafter found in violation of his probation conditions three times, and
on the third occasion, in 2010, the court revoked his probation and sentenced him to two



                                              2
years in prison for possession of methamphetamine, with a concurrent 180-day sentence
for possession of a smoking device.
2.     Defendant’s motion to vacate his convictions
       On September 17, 2012, defendant filed a “Motion to Vacate,” seeking to vacate
his convictions and allow him to withdraw his no contest pleas and instead plead not
guilty. The motion argued defendant had not been advised by either the court or his
attorney of the immigration consequences of his no contest pleas. Attached to the motion
were a deportation order by a federal immigration judge and a hand-printed statement by
defendant stating he was never informed that his pleas in his drug case could lead to his
deportation and if he had been informed of this, he would have pleaded not guilty and
gone to trial to avoid deportation. The motion relied upon both Penal Code section
1016.51 [motion to vacate for trial court’s failure to advise regarding immigration
consequences of a plea] and Padilla v. Kentucky (2010) 559 U.S. 356 [130 S.Ct. 1473]
[effective assistance of counsel requires counsel to inform defendant whether plea carries
risk of deportation].
       The trial court denied defendant’s motion, citing the express advisement in the
written Advisement of Rights, Waiver, and Plea form initialed and signed by defendant
and the minute order reciting the court’s advisement during the hearing.
                                       DISCUSSION
1.     Section 1016.5
       Section 1016.5 requires the trial court to advise a defendant of potential
immigration consequences of a guilty or no contest plea and, upon a defendant’s motion,
requires a trial court to vacate any plea for which a defendant was not so advised.
(§ 1016.5, subds. (a)–(b).) The statute applies only to the trial court’s failure to advise of
such consequences, not counsel’s. (People v. Chien (2008) 159 Cal.App.4th 1283, 1285




       1   Undesignated statutory references are to the Penal Code.


                                              3
(Chien).) We review the trial court’s denial of a section 1016.5 motion for abuse of
discretion. (Chien, at p. 1287.)
       Defendant contends the trial court erred by denying his motion because his
Advisement of Rights, Waiver, and Plea form “lacks a signed attestation by the trial
attorney that counsel discussed the facts of the case and explained” the potential
immigration consequences. However, section 1016.5 applies only to the court, and
requires no advisement by counsel. (Chien, supra, 159 Cal.App.4th at p. 1285.) The
minute order of the October 26, 2004 hearing at which defendant entered his no contest
pleas and the Advisement of Rights, Waiver, and Plea form establish the required
advisement by the trial court. Accordingly, the trial court did not abuse its discretion by
denying defendant’s motion.
2.     Ineffective assistance of counsel
       A claim that counsel was ineffective requires a showing, by a preponderance of
the evidence, of objectively unreasonable performance by counsel and a reasonable
probability that, but for counsel’s errors, the defendant would have obtained a more
favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.)
       Defendant’s ineffective assistance of counsel claim should have been raised by
means of a petition for a writ of habeas corpus, accompanied by a declaration from the
attorney who represented defendant at the time of his pleas. Nonetheless, even if we
were to treat defendant’s appeal from the trial court’s order as a petition for a writ of
habeas corpus, we would necessarily conclude defendant failed to make a prima facie
showing of either objectively unreasonable performance by counsel or prejudice.
Defendant’s motion was not accompanied by a declaration from either himself or the
attorney who represented him when he entered his no-contest pleas. The hand-printed
statement by defendant attached to the motion was neither a declaration nor an affidavit.
Defendant therefore failed to make a prima facie showing that counsel failed to advise
him of the potential immigration consequences of his plea. Because the record
demonstrates the trial court advised defendant of the potential immigration consequences



                                              4
twice—in a paragraph initialed by defendant in the Advisement of Rights, Waiver, and
Plea form and again orally during the hearing—defendant has not, and indeed cannot,
make a prima facie showing he was prejudiced by counsel’s purported failure to advise.
      Accordingly, the trial court properly rejected defendant’s motion to the extent it
was based upon ineffective assistance of counsel.
                                    DISPOSITION
      The order from which defendant appealed is affirmed.
      NOT TO BE PUBLISHED.


                                                MILLER, J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




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



                                            5
