Filed 6/23/16 P. v. Reyes CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063226

v.                                                                      (Super.Ct.No. RIF1305688)

ARMANDO EMMANUEL                                                        OPINION
CERVANTES REYES,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Steven G. Counelis,

Judge. Affirmed.

         Law Office of Zulu Ali and Zulu Ali, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Deputy Attorney

General, for Plaintiff and Respondent.

         Defendant and appellant Armando Emmanuel Cervantes Reyes appeals from the

trial court’s ruling denying his motion to vacate his 2013 conviction for drug possession.


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In 2014, defendant moved to vacate the conviction on the ground that the trial court did

not ensure that he was adequately advised of the immigration consequences of his guilty

plea, as provided for in Penal Code section 1016.5.1 For the reasons discussed below, we

affirm the court’s ruling.

                                  PROCEDURAL HISTORY

       On August 7, 2013, defendant pled guilty to one count of possessing a controlled

substance, specifically androisoxazole. (Health & Saf. Code, § 11377, subd. (a).)

Section B.4. on the printed plea form, under the heading “Consequences of Plea,” states:

“If I am not a citizen of the United States, I understand that this conviction 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.” Defendant initialed the line

provided next to that section.

       At the end of the plea form, defendant signed and wrote the date under the

statement “I have read and understand this entire document. I waive and give up all of

the rights that I have initialed. I accept this Plea Agreement.” Defense counsel also

signed and dated the plea form under the statement “I am the attorney for the defendant.

I am satisfied that (1) the defendant understands his/her constitutional rights and

understand that a guilty plea would be a waiver of these rights; (2) the defendant has had

an adequate opportunity to discuss his/her case with me, including any defenses he/she




       1   All further statutory references are to the Penal Code unless otherwise indicated.


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might have to the charges; and (3) the defendant understands the consequences of his/her

guilty plea. I join in the decision of the defendant to enter a guilty plea.”

       A reporter’s transcript of the plea hearing shows the trial court asked defendant,

“Did you review with your counsel your legal rights on the form I have here,” to which

defendant replied, “Yes, sir.” The court then asked defendant, “Are those your initials

and signatures on the form,” to which defendant answered, “Yes, your Honor.” The court

then stated, “The court finds a factual basis. Finds the plea is freely, voluntarily, and

knowingly given. The waiver of rights are knowing and intelligent. He understands the

nature of the charges and the consequences.” The court then placed defendant on four

years of probation and ordered him to serve 179 days in jail, with credit for 89 days.

       In December 2014, defendant filed a motion to reopen his case and vacate his

conviction on the ground that the trial court did not ensure that he was adequately warned

before pleading guilty that the conviction may result in deportation. The People filed its

opposition on January 14, 2015. The trial court heard the motion on January 26, 2015.

The court denied the motion based on the plea form, specifically pointing to defendant’s

initials next to the immigration consequences advisement, and both defendant’s and

defense counsel’s signatures at the end of the plea form.

       Defendant appealed.




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                                        DISCUSSION

       Defendant argues the trial court erred when it determined that the court that took

his guilty plea ensured he was adequately advised of the immigration consequences of the

guilty plea.

       Under section 1016.5, a defendant can obtain relief if he or she “demonstrate[s]

that (1) the court taking the plea failed to advise the defendant of the immigration

consequences as provided by section 1016.5, (2) as a consequence of conviction, the

defendant actually faces one or more of the statutorily specified immigration

consequences, and (3) the defendant was prejudiced by the court’s failure to provide

complete advisements.” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287, citing

People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200; People v. Totari

(2002) 28 Cal.4th 876, 884.) As discussed below, we agree with the trial court that

defendant did not met his burden to demonstrate that the trial court that took his plea

failed to comply with section 1016.5.

       Section 1016.5, subdivision (a), requires the following admonishment be given to

any defendant entering a guilty plea: “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.”

       The court is not necessarily required to provide the above warning orally.

However, it must appear on the record, and it must be given by the court. (People v.



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Gutierrez (2003) 106 Cal.App.4th 169, 175; People v. Ramirez (1999) 71 Cal.App.4th

519, 521-522; People v. Quesada (1991) 230 Cal.App.3d 525, 536; cf. People v.

Panizzon (1996) 13 Cal.4th 68, 83 [trial court “may rely upon a defendant’s validly

executed waiver form as a proper substitute for a personal admonishment” with respect to

losing right to appeal a sentence after pleading no contest].)

       “[T]he legislative purpose of section 1016.5 is to ensure a defendant is advised of

the immigration consequences of his plea and given an opportunity to consider them. So

long as the advisements are given, the language of the advisements appears in the record

for appellate consideration of their adequacy, and the trial court satisfies itself that the

defendant understood the advisements and had an opportunity to discuss the

consequences with counsel, the legislative purpose of section 1016.5 is met. [Citation.]”

(People v. Ramirez, supra, 71 Cal.App.4th at p. 522.) “Nor need the statutory

admonition be given orally. It is sufficient if, as here, the advice is recited in a plea form

and the defendant and his counsel are questioned concerning that form to ensure that

defendant actually reads and understands it.” (People v. Quesada, supra, 230 Cal.App.3d

at p. 536.)

       A trial court’s ruling on a section 1016.5 motion will withstand appellate review

unless the record shows a clear abuse of discretion. (People v. Superior Court

(Zamudio), supra, 23 Cal.4th at p. 192.) In properly applying the standard of review, an

appellate court must uphold the trial court’s reasonable inferences and resolution of

factual conflicts if supported by substantial evidence, viewed in the light most favorable



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to the ruling, and must also accept the court’s credibility determinations. (People v.

Quesada, supra, 230 Cal.App.3d at p. 533.) The trial court’s inferences and conclusions

here are supported by substantial evidence.

       The advisement required by section 1016.5 is included in section B.4. of the plea

form, as quoted above. Defendant placed his initials in the space provided next to that

advisement. In addition, defendant signed at the end of the plea form to indicate that he

had read and understood the document, and defendant’s trial counsel signed the attorney

statement providing that defendant had an opportunity to discuss the case with her and

understood the consequences of the plea. Finally, the record transcript of the plea hearing

shows that defendant answered “Yes” when the court inquired as to whether he reviewed

the plea form with his counsel and whether his initials and signatures on the form were

authentic. These answers and defendant’s signatures and initials on the plea form are the

basis of the court’s finding that defendant understood the consequences of his plea.

       In accordance with the case law discussed above, we conclude from this record

that the trial court did not abuse its discretion when it denied defendant’s motion to

vacate, and its ruling is supported by substantial evidence. The plea form strongly

indicates that defendant was advised of and understood the immigration consequences of

his plea, and the record transcript shows the trial judge inquired of defendant and was

assured that defendant understood the consequences of the plea. The judgment is

affirmed.




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                                    DISPOSITION

     The court’s order denying the motion to vacate is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                            RAMIREZ
                                                                      P. J.


We concur:

HOLLENHORST
                        J.

SLOUGH
                        J.




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