Filed 11/18/13 P. v. Martinez CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138601
v.
MARCO ANTONIO MARTINEZ,                                              (Lake County
                                                                     Super. Ct. No. CR929894B)
         Defendant and Appellant.


         Defendant appeals from an order denying his motion under Penal Code section
1018 to vacate a plea. His counsel raises no issues and asks this court for an independent
review of the record to determine whether there are any arguable issues. (People v.
Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental
brief, but has not done so.
         This court previously affirmed the underlying judgment in this case — defendant’s
conviction of attempted cultivation of marijuana upon his plea of no contest. (People v.
Martinez (April 30, 2013, A137258 [nonpub. opn.].)
         On December 10, 2012, prior to the filing of our opinion in the earlier appeal,
defendant timely moved pursuant to Penal Code section 1018 to withdraw his plea on the
ground that Doug Rhoades, his defense counsel, was ineffective because Rhoades failed
to correctly advise him of the immigration consequences of the plea. Defendant stated
that he had completed his sentence and was under a hold by U.S. Immigration and
Customs Enforcement (ICE) and faced deportation. He acknowledged that Rhoades told




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him that he would be subjected to deportation, but claims that Rhoades did not advise
him of the immigration consequences of his plea or investigate any possible remedies.
       A hearing on the motion was held on January 15, 2013. Defendant testified that
after he was arrested in this case, an ICE hold was placed upon him. He admitted that he
discussed his immigration status with Rhoades, and that his family had learned that in
order for him to qualify for residency under a “new Obama law,” he could be convicted
of only a misdemeanor and not a felony. Rhoades advised him that the district attorney
would not agree to a misdemeanor and that he would not be placed on probation or
entitled to do a drug diversion program because he was here illegally. He testified that he
was in custody with ICE and was required to wear an ankle bracelet and check in with the
ICE office every two weeks.
       On cross-examination, defendant admitted that he was told that a felony drug
charge would result in immigration action that could exclude him from permanent
residency. He also admitted that he read, initialed, and understood the immigration
consequences section on the plea form which stated that if he was not a citizen of the
United States, his plea of guilty or no contest “may or, with certain offenses, will result in
[his] deportation . . . . The offenses that will result in such immigration action include,
but are not limited to, an aggravated felony, conspiracy, a controlled substance offense, a
firearm offense, and, under certain circumstances, a moral turpitude offense.” Defendant
further testified that Rhoades did not tell him that he would be deported but said that he
“might have a chance to do something with — once I got to immigration.”
       Rhoades testified that he told defendant that with a plea to attempted cultivation,
“unless ICE disregarded [its] own rules and law, he would be deported.” Rhoades tried
to obtain a better offer from the district attorney that would avoid the negative
immigration consequences for defendant but was unsuccessful. Rhoades did not tell
defendant that he might fare better with ICE if he was convicted of only attempted
cultivation.




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      The court denied the motion, finding that defendant made a knowing and
voluntary waiver of his rights when he entered his plea, and that he understood the
consequences of the plea.
      Defendant was represented by counsel throughout the proceedings. This court has
reviewed the entire record and there are no meritorious issues to be argued.
      The order is affirmed.




                                                 _________________________
                                                 Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Humes, J.




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