Filed 8/17/16 P. v. Gomez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069602

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. ECR9898)

ARMANDO GOMEZ,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Daniel G.

Lamborn, Judge. Affirmed.

         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

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

general, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Megan J.

Beal, Deputy Attorneys General, for Plaintiff and Respondent.


         Armando Gomez pled guilty in 1995 to possessing methamphetamine for sale and

driving under the influence. Twenty years later, Gomez moved to withdraw his plea
under Penal Code section 1016.5, which permits withdrawal of a guilty plea when the

court did not advise the defendant of possible adverse immigration consequences of the

plea.1 After an evidentiary hearing, the court denied the motion based on its factual

finding that Gomez had notice of the statutorily-required information before he pled

guilty in the 1995 case. Gomez appeals. We affirm.

                     FACTUAL AND PROCEDURAL SUMMARY

                                     1995 Guilty Plea

       In 1995, 20-year-old Gomez pled guilty to possessing methamphetamine for sale

(Health & Saf. Code, § 11378) and unlawful driving under the influence (Veh. Code,

§ 23152, subd. (a)). Four other charges were dismissed: transporting methamphetamine,

possessing a controlled substance, giving false information to a peace officer, and being

under the influence of a controlled substance. The plea was supported by testimony at

the preliminary hearing.

       In his change of plea form, Gomez initialed the following provision: "9. I

understand that if I am not a citizen of the United States a plea of Guilty or No Contest

could result in deportation, exclusion from admission to this country, and/or denial of

naturalization." He also initialed a provision stating: "I declare under penalty of perjury,

under the laws of the State of California, that I have read, understood, and initialed each

item above, and everything on the form is true and correct."




1      All undesignated statutory references are to the Penal Code.
                                             2
       Gomez's attorney signed a statement on the form affirming that he "personally

read and explained the contents of the above declaration to the defendant and each item

thereof" and he "personally observed the defendant fill in and initial each item, or read

and initial each item to acknowledge the explanation of the contents of each . . . ." The

court's minute order states that Gomez was sworn and examined by the court and that

Gomez was advised of his rights.

                               2015 Motion to Vacate Plea

       Twenty years later, in September 2015, Gomez moved to set aside the conviction

under section 1016.5. In support, he produced his declaration in which he said he was

not advised by his attorney or by the court of "any immigration consequences that I might

face if I pleaded guilty." He acknowledged he initialed the box on the plea form advising

him of the immigration consequences, but said he did not read the form and his attorney

"simply told me to put my initials in the boxes and sign the form." Regarding his need

for relief, Gomez said that in April 2015 he was stopped by Immigration and

Naturalization Service (INS) officers, who told him his felony conviction "will cause me

to be deported and excluded forever from the United States." He produced an order

requiring him to appear before an immigration judge based on his status as an "alien"

who has not been admitted or paroled.

       The People opposed the motion, arguing the motion was untimely and that even

assuming the court did not orally advise Gomez of the immigration consequences (the

reporter's transcript could not be found), Gomez could not show prejudice because the

plea form makes clear Gomez was advised of the immigration consequences.

                                             3
          At the hearing on the motion, the People called Mark Kirkness, Gomez's attorney

at the 1995 guilty plea hearing. Kirkness testified he did not remember Gomez's case, but

his common practice was to read the plea change form to the client, and make sure the

client understood "each and every" identified consequence of the plea. Kirkness said the

client would initial each box on the plea form only after Kirkness was satisfied the

defendant understood the particular right. Kirkness also testified it was his custom and

practice to explain immigration consequences to defendants before they agreed to plead

guilty.

          In his testimony, Gomez reaffirmed the information submitted in his declaration.

He said that before he pled guilty, he did not understand that the guilty plea would be

grounds for his deportation and/or permanent exclusion from the United States. He said

he would not have signed the form if he had known of these consequences because he

had been in the United States since he was eight years old, had a two-year-old son at the

time, and "[a]ll I know is here, my family." Gomez testified he did not remember his

attorney explaining to him that there could be immigration consequences from the guilty

plea. When the prosecutor asked whether he "could have been advised of [his]

immigration rights," Gomez responded: "Maybe. Yeah. I mean, I could have, but I don't

remember. I would have said something. Clearly, if . . . I understood that I would have

been deported if I signed that, I would have gone to trial."

          Gomez also said that he is employed as a supervising electrician in Maryland, and

produced several letters of support from his employer, friends, and family.



                                               4
                                   Court's Denial of Motion

       After "carefully" considering the evidence and arguments, the court denied

Gomez's motion. The court rejected the People's timeliness argument, but found Gomez

was not entitled to relief because the evidence established Gomez understood the

immigration consequences before he pled guilty to the charges. The court told Gomez:

"[W]hen we get to the advisements, there is a lot of evidence here, sir, that you were

advised. We have the change of plea here where you initialed it. We have the statement

of the attorney—he doesn't remember it, but his testimony of going through with each

client each paragraph on that, I am satisfied that you were advised and that you were

aware. Did you appreciate it? Did you fully understand that this might actually come to

be? Well, that's a different issue. But were you aware of it? Y[es], you were advised,

you were aware of it." The court noted the facts showing Gomez has "turned [his] life

around," and has become a responsible citizen are not relevant to the issue whether he

was previously advised of the immigration consequences of his plea.

                                       DISCUSSION

       Section 1016.5, subdivision (a) requires that, before accepting a guilty plea, the

trial 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." (Italics added.)



                                              5
       Section 1016.5, subdivision (b) allows a defendant to move to withdraw his plea

and vacate the judgment if "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 specified adverse immigration]

consequences." (Italics added.)

       "To prevail on a motion to vacate under section 1016.5, a defendant must establish

that (1) he or she was not properly advised of the immigration consequences as provided

by the statute; (2) there exists, at the time of the motion, more than a remote possibility

that the conviction will have one or more of the specified adverse immigration

consequences; and (3) he or she was prejudiced by the nonadvisement." (People v.

Totari (2002) 28 Cal.4th 876, 884, italics added; see People v. Arendtsz (2016) 247

Cal.App.4th 613, 617 (Arendtsz).) To establish the third (prejudice) element a defendant

must show that "but for the failure to advise, [he or she] would not have entered a guilty

plea." (People v. Araujo (2016) 243 Cal.App.4th 759, 763 (Araujo); see People v.

Superior Court (Zamudio) (2000) 23 Cal.4th 183 (Zamudio).) We review the trial court's

denial of defendant's motion to vacate the judgment for an abuse of discretion. (Arendtsz,

supra, 247 Cal.App.4th at p. 617; see Zamudio, supra, 23 Cal.4th at p. 192.)

       In this case, the court found that even assuming the prior court did not provide an

oral admonishment, there was no prejudice because Gomez was advised by his attorney

of the immigration consequences as required by section 1016.5, and Gomez made the

decision to plead guilty despite that knowledge. Substantial evidence supported the

court's conclusion. The plea form, together with the former defense counsel's testimony

                                              6
regarding his custom and practice, shows Gomez was given the information required by

section 1016.5, and he voluntarily and knowingly chose to plead guilty with knowledge

of these consequences.

       Gomez challenges the court's factual finding, arguing his testimony at the hearing

was "credible." He asserts "[i]t is difficult to imagine [he] would knowingly enter into a

plea agreement that would [have] such a draconian result." However, as an appellate

court, we do not reweigh the evidence or second-guess the court's findings on witness

credibility. (People v. Maury (2003) 30 Cal.4th 342, 403; People v. Ochoa (1993) 6

Cal.4th 1199, 1206; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) We

are bound by the trial court's factual findings if there is a reasonable evidentiary basis

supporting the findings. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)

       The court had a reasonable basis to credit Kirkness's testimony about his standard

practice of advising his clients regarding immigration consequences. Further, Gomez

admitted he initialed the immigration advisement and acknowledged he did not

specifically recall all of his discussions with his attorney. On this record, the trial court

was not required to accept Gomez's testimony that he was never advised of the

immigration consequences of his plea. (See People v. Gutierrez (2003) 106 Cal.App.4th

169, 174, fn. 4.)

       Gomez alternatively contends the court erred in denying his section 1016.5 motion

because he was not specifically advised in 1995 that his plea would result in "mandatory"

deportation. (Italics added.) Gomez claims if he had known of the mandatory nature of

the immigration consequences, he would not have pled guilty. Gomez did not raise this

                                               7
mandatory-deportation issue in the proceedings below, and therefore he has forfeited the

argument. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)

       Even if we were to reach Gomez's contention, the argument is unsupported by

applicable law. Section 1016.5 does not require notification of mandatory deportation

consequences. "Section 1016.5 addresses only the duty of the court to admonish a

defendant of the possibility that a conviction may result in removal from the United

States, or preclude naturalization . . . , and does not address the obligation to explain the

more particular [immigration] consequences [of a plea]." (People v. Mbaabu (2013) 213

Cal.App.4th 1139, 1145, italics added; see Araujo, supra, 243 Cal.App.4th at p. 763

[rejecting argument that trial court "must advise the defendant on what offenses will

result in mandatory deportation"].)

       Gomez's reliance on Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla) is

misplaced. In Padilla, the court held a defense attorney provides constitutionally

deficient assistance when a noncitizen client is not advised about the risk of deportation

resulting from a guilty plea. (Id. at pp. 373-374.) The Padilla defendant argued his

counsel was ineffective because the counsel failed to admonish him of the automatic

immigration consequences of the plea. (Id. at pp. 359-360.) Padilla held that

constitutionally competent counsel would have advised the defendant that his marijuana

transportation conviction made him subject to automatic deportation, and remanded the

matter to determine whether the defendant was prejudiced by his counsel's ineffective

assistance. (Id. at pp. 359-360, 374-375.)



                                              8
       Padilla's holding does not support that the trial court erred in denying Gomez's

statutory motion. First, the United States Supreme Court has held Padilla does not apply

to defendants whose convictions, like defendant's, became final before Padilla was filed.

(Chaidez v. United States (2013) __ U.S. __, __ [133 S.Ct. 1103, 1107-1113].) Second,

Padilla's holding is inapplicable in the section 1016.5 context. (See Arendtsz, supra, 247

Cal.App.4th at p. 619; People v. Mbaabu, supra, 213 Cal.App.4th at p. 1145.) Section

1016.5 requires only that the court identify three potential immigration consequences of a

conviction: that a conviction "may have the consequences of deportation, exclusion from

admission to the United States, or denial of naturalization." (§ 1015, subd. (a), italics

added; see Arendtsz, supra, 247 Cal.App.4th at pp. 618-619; Araujo, supra, 243

Cal.App.4th at p. 763; Mbaabu, supra, 213 Cal.App.4th at p. 1145; People v. Gutierrez,

supra, 106 Cal.App.4th at p. 174, fn. 4.) This is a different (and narrower) duty than the

scope of an attorney's obligations to provide effective assistance. (Arendtsz, supra, 247

Cal.App.4th at p. 619 [Padilla's ineffective assistance holding "has no material bearing"

on a trial court's section 1016.5 obligations].)

       The issue on a section 1016.5 motion concerns whether a defendant has a right to

withdraw his plea based on his claim the court did not comply with section 1016.5. In

this case, the court found (based on substantial evidence) Gomez was aware of the three

potential immigration consequences identified in the statute and therefore the court's

alleged failure to advise was not prejudicial. Based on this finding, the trial court




                                               9
properly denied Gomez's section 1016.5 motion to vacate the judgment.2 (See Araujo,

supra, 243 Cal.App.4th at p. 763.)

       Gomez alternatively contends the admonishment on the plea form was inadequate

because the San Diego County Superior Court guilty plea form that was revised in

September 2011 includes an expanded advisement to include the following: "I

understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my

removal/deportation, exclusion from admission to the U.S. and denial of naturalization.

Additionally, if this plea is to an 'Aggravated Felony' listed on the back of this form, then

I will be deported, excluded from admission to the U.S., and denied naturalization." (San

Diego County Super. Ct. form CRM-012, rev. Sept. 2011.) The back of the form

contains a list of "AGGRAVATED FELONIES," which includes convictions for

possessing controlled substances for sale. (Ibid.)

       Because Gomez did not raise this issue in the trial court and the record does not

contain this revised guilty plea form, the argument is forfeited. The argument also fails

on its merits. We have independently reviewed the cited San Diego County Superior

Court guilty plea form that contains the modified advisement. There is nothing in this

form supporting a conclusion that state law has been changed regarding a court's

obligations to inform defendants of immigration consequences of their plea. The

expanded information on the forms will help counsel explain the specific potential


2       Based on this conclusion, we do not reach the Attorney General's alternate
argument that Gomez did not sufficiently establish he was subject to immigration
consequences based on his guilty plea. Because the Attorney General did not adequately
raise this argument in the court below, the argument is waived.
                                             10
immigration consequences of a plea to their noncitizen clients. But the forms do not

operate to amend the applicable statutes imposing only the limited specified duties on

trial courts regarding the need to advise on the possible immigration consequences of a

plea.

                                     DISPOSITION

        Affirmed.



                                                                             HALLER, J.
WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.




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