Filed 12/4/15 P. v. Singh CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,

     Plaintiff and Respondent,                                         G049973

         v.                                                            (Super. Ct. No. 97HF1264)

ANDY JOHN SINGH,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Gregg L. Prickett, Judge. Affirmed.
                   John L. Staley, 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
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
              In November 1997, defendant Andy John Singh pleaded guilty to one count
of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), admitting at
the same time a prior strike conviction allegation (Pen. Code, § 667, subds. (d), (e)(1))
and a prior prison term allegation (Pen. Code, § 667.5, subd. (b)). The court placed
defendant on supervised probation for three years, including 365 days in county jail.
              In February 2014, defendant filed a handwritten “motion to strike prior
conviction,” which we have construed (at the urging of defendant’s appellate counsel) as
a Penal Code section 1016.5 (section 1016.5) motion to vacate the November 1997
judgment and allow defendant to enter a not guilty plea. Section 1016.5 requires courts
to provide individuals who are pleading guilty with an advisement of potential
                             1
immigration consequences, and authorizes relief from guilty pleas when the advisement
                   2
is not provided.
              No opposition was filed. It appears defendant simply mailed his motion to
the court; no proof of service appears in the record. Without holding a hearing on the
motion, the court ruled as an initial matter that it had no jurisdiction because defendant’s

1
               “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 consequence of deportation,
exclusion from admission to the United States, or denial of naturalization pursuant to the
laws of the United States.” (§ 1016.5, subd. (a).)
2
              “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 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.”
(§ 1016.5, subd. (b).)

                                               2
case became final in 2000 when he completed probation. The court, in the alternative,
denied the motion “[i]nsofar as the Court has jurisdiction at all to address [defendant’s]
post-judgment, ex parte request. . . .” “The Court will take no further action on this
correspondence.” The court ordered the clerk to provide a copy of defendant’s motion
and the court’s order to the public defender and the district attorney.
              Defendant seeks reversal and a remand for an evidentiary hearing on the
question of whether he was adequately advised of the immigration consequences of his
guilty plea. The Attorney General concedes the court had jurisdiction to decide the
motion, now that it is clear defendant’s motion should be treated as one brought under
section 1016.5. (See People v. Martinez (2013) 57 Cal.4th 555, 564-565; People v.
Totari (2002) 28 Cal.4th 876, 880, 887.)
              But the Attorney General nonetheless contends we should affirm the denial
of the motion. Relief under section 1016.5, subdivision (b), is premised on: (1) the
court’s failure to provide an adequate advisement of immigration consequences at the
time of the guilty plea; (2) “more than a remote possibility that [the] conviction will have
one or more of the specified adverse immigration consequences”; and (3) prejudice, i.e.,
“properly advised, [the defendant] would not have pleaded [guilty] in the first place.”
(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) If, as here, there is a
lengthy time period between the conviction and the motion, defendant must also
demonstrate the exercise of reasonable diligence in bringing the motion. (Id. at pp. 203-
204; People v. Martinez, supra, 57 Cal.4th at p. 565, fn. 3.)
              Our review of defendant’s opaque moving papers does not reveal any
description of the immigration consequences he is facing as a result of the 1997
conviction, or the exercise of reasonable diligence in bringing the motion. Indeed, it does
not appear that defendant even addressed whether he is a citizen. With regard to
prejudice, defendant summarily stated in a declaration that he would not have pleaded



                                              3
guilty had he been better informed concerning a number of factors, including
immigration consequences.
              As to the advisement, the record establishes defendant was advised in
writing of the potential immigration consequences of his guilty plea. A reporter’s
transcript from November 1997 is not included in the record. There is no way to tell
whether the court (in November 1997) orally provided defendant with the section 1016.5,
subdivision (a), advisement “on the record.” But we have been provided with a copy of
defendant’s November 1997 guilty plea. In this guilty plea form, initials appear in the
box adjacent to the following typewritten statement: “I understand that if I am not a
citizen of the United States the conviction for the offense charged may have the
consequence of deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.” This information mirrors the
disclosures required by section 1016.5, subdivision (a). Defendant’s signature appears on
the guilty plea form, directly under a paragraph indicating he was declaring under penalty
of perjury he had “read, understood, and personally initialed each item above and
discussed them with my attorney, and everything on this form is true and correct.”
Defendant’s attorney likewise signed the document, agreeing he had “explained each of
the above rights to the defendant . . . .”
              Defendant contends this written advisement was not enough. He takes the
position that “on the record” (§ 1016.5, subd. (a)) means the statute can only be satisfied
by an oral recitation of the advisement by the judicial officer accepting the guilty plea.
(§ 1061.5, subd. (b) [“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”].)
              But this argument was squarely rejected in People v. Ramirez (1999) 71
Cal.App.4th 519. In a change of plea form, the Ramirez “[a]ppellant was warned of all
three possible consequences in precise statutory language.” (Id. at p. 523.) “[T]here is

                                              4
no language [in the statute] which states the advisements must be verbal, only that they
must appear on the record and must be given by the court.” (Id. at p. 521.) “[A] validly
executed waiver form is a proper substitute for verbal admonishment by the trial court.”
(Ibid.) “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.” (Id. at p.
522.) Defendant claims Ramirez was wrongly decided. But we agree with the analysis
of section 1016.5 in Ramirez. (See also People v. Quesada (1991) 230 Cal.App.3d 525,
536 [“It is sufficient if . . . 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”].)
              Of course, the court in this case did not actually find defendant had been
adequately advised of the immigration consequences at issue. It is not even clear that the
court understood defendant’s motion was brought under section 1016.5. Although it
appears defendant was given a sufficient admonishment at the time of his guilty plea, it is
premature to rule on this issue definitively (particularly in the first instance on appeal)
without the reporter’s transcript or other evidence confirming defendant actually
reviewed the admonishment contained in the plea agreement. (Cf. People v. Dubon
(2001) 90 Cal.App.4th 944, 950, 954-956 [in absence of reporter’s transcript, minute
order and judge’s testimony rebutted presumption that advisement was not given].)
              Though the court’s order is not entirely clear, the most reasonable
interpretation is that the denial of defendant’s motion was without prejudice to a
subsequent motion being brought — a motion actually establishing a prima facie basis for
relief and providing proper notice to the district attorney. The court found fault with the
ex parte nature of defendant’s handwritten “correspondence,” and referred the



                                               5
“correspondence” and ensuing court order to the public defender and district attorney.
The court did not err by denying defendant’s motion.


                                     DISPOSITION


              The postjudgment order denying defendant’s motion to vacate his guilty
plea is affirmed.




                                                IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




                                            6
