Filed 4/8/13 P. v. Richey 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G046919

         v.                                                            (Super. Ct. No. 11HF2339)

MARIA ROSARIO TORRES RICHEY,                                            OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Craig
E. Robison, Judge. Affirmed.
                   Zulu Ali for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Meagan Beale and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant is an undocumented immigrant who is facing the prospect of
deportation to her native country, Mexico. Working on the assumption this prospect
arose because she pleaded guilty to a deportable offense, appellant claims she should be
allowed to withdraw her plea because her attorney failed to warn her it would result in
her being deported. However, the record shows appellant was adequately advised of the
consequences of her plea. It also shows she was subject to deportation irrespective of her
plea due to her status as an undocumented immigrant. Therefore, the trial court properly
denied her motion to withdraw her plea.
                                          FACTS
              On September 15, 2011, appellant was charged in a felony complaint with
six counts of commercial burglary and one count each of receiving stolen property and
possessing methamphetamine. She was arraigned the same day and entered a plea of not
guilty to all of the charges. The minute order from the arraignment hearing states,
“Defendant has a Bureau of Immigration and Customs Enforcement [(ICE)] hold.”
              On September 23, 2011, appellant entered into a written plea agreement
with the prosecution. Pursuant to the agreement, appellant agreed to plead guilty to one
count of commercial burglary, plus the receiving and possession charges, in exchange for
having the remaining charges dismissed. Appellant faced a maximum prison sentence of
four years and four months under the agreement, but probation was designated as the
“proposed disposition.”
              The plea agreement also specified that, by pleading guilty, appellant was
giving up certain rights and exposing herself to several detrimental consequences. Under
the heading of “Immigration consequences,” the agreement states, “I understand that if I
am not a citizen of the United States the conviction for the offense(s) 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.”



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              Appellant signed her initials next to this advisement. At the end of the
agreement, she also initialed and signed a provision which states: “I declare under
penalty of perjury I have read, understood and personally initialed each numbered item
above, and I have discussed them with my attorney.”
              Appellant’s attorney also signed the agreement, attesting “I have explained
to defendant each of the rights set forth on this form. . . . I have discussed the possible
sentence ranges and immigration consequences with defendant.”
              The plea hearing was held on September 23, 2011, the same day the plea
agreement was executed. At the hearing, appellant acknowledged to the court that she
had read, initialed and signed the agreement and that she had reviewed it with her
attorney. When the court asked her “do you understand that if you’re not a United States
citizen conviction does have the consequence of deportation, exclusion from admission or
denial of naturalization or amnesty pursuant to the laws of the United States,” appellant
answered, “Yes, sir.”
              After appellant further acknowledged that she was “pleading guilty freely
and voluntarily because [she was] in fact guilty,” the court accepted her guilty plea. In so
doing, the court found that appellant had been “fully advised of the consequences of [her]
plea.”
              Sentencing was put over until November 18, 2011, at which time the court
suspended imposition of sentence and placed appellant on supervised probation. As a
condition of probation, appellant was ordered to serve 180 days in jail and report to her
probation officer within 72 hours of her release from custody.
              However, appellant never had an opportunity to report because on January
9, 2012, an agent with the Department of Homeland Security took her into custody and
served her with notice she was subject to removal, i.e., deportation, under the
Immigration and Nationality Act. The notice alleged: 1) Appellant is a citizen of Mexico
and not the United States; 2) she lawfully entered the United States on July 4, 1996, with

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authorization to stay in the country until July 31, 1996; and 3) she stayed in the United
States beyond that date without authorization. The stated basis for appellant’s removal
was that she “remained in the United States for a time longer than permitted[.]” The
notice did not say anything about her plea or conviction in the present case.
                One month later, on February 9, 2012, newly-retained defense attorney
Zulu Ali filed a motion to allow appellant to withdraw her guilty plea. Mr. Ali claimed
appellant was being deported because she pleaded guilty to an aggravated felony, which
requires mandatory deportation under the Immigration and Nationality Act. Mr. Ali
further asserted that, had appellant known her guilty plea would result in mandatory
deportation, she would have rejected the plea agreement and tried to strike a deal
involving a nondeportable offense.
                Appellant submitted an accompanying declaration saying as much. She
admitted she was a citizen of Mexico and did not have authorization to be in the United
States. However, she failed to recognize that was the basis for her pending deportation.
Instead, she blamed her immigration woes on her attorney for failing to advise her about
the consequences of her guilty plea, one of which she assumed was “mandatory
deportation.”
                The trial court wasn’t buying it. It not only found appellant was adequately
advised of the consequences of her plea, it also determined she failed to prove she was
prejudiced by anything her attorney did or did not do. Therefore, it denied appellant’s
motion to withdraw her plea.
                                       DISCUSSION
                Appellant’s brief, submitted by the aforementioned Mr. Ali, is suffused
with the idea that appellant was not adequately informed — not by the court, not by her
attorney, and not through her plea agreement — that she was subject to deportation. The
brief also assumes appellant’s guilty plea is the cause of her current immigration troubles.
Neither supposition is correct.

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               As to the first point, Mr. Ali repeatedly asserts the trial court did not give
appellant “any advisal of the immigration consequences of her plea . . . .” (Appellant’s
opening brief, p. 11; see also p. 13 [appellant “was given no advisal by the (trial court)
regarding immigration.”].) However, the truth of the matter is, the trial court specifically
admonished appellant on this point. In fact, as set forth above, the court told appellant
that if she was not a citizen of the United States, “conviction does have the consequence
of deportation.” This admonishment went beyond the standard admonishment that trial
judges are required to give when accepting a guilty plea. (See Pen. Code, § 1016.5 [trial
court need only advise the defendant that conviction “may” result in deportation if they
are not a citizen].)
               Appellant’s plea agreement makes clear that her attorney also went over the
immigration consequences of her plea with her. Indeed, both appellant and her attorney
attested to this fact on the agreement. Appellant claims she didn’t have sufficient time to
digest this information because she entered her plea the same day she signed the plea
agreement. However, appellant did not so claim in her declaration in the trial court.
Instead, she alleged her attorney was remiss for failing to advise her she was pleading
guilty to a deportable offense.
               That brings us to an even bigger problem for appellant. Appellant assumes
she is being deported because of her guilty plea, but the notice from the Department of
Homeland Security shows she is being deported because she was not legally in the United
States to begin with. Irrespective of which particular offenses she pleaded guilty to, or
even whether she pleaded guilty at all, she would still be subject to deportation due to her
status as an undocumented immigrant. Therefore, we fail to see how she could have been
prejudiced by her attorney’s actions.
               In Padilla v. Kentucky (2010) 559 U.S. 356, 130 S.Ct. 1473, the high court
ruled a legal resident of the United States may challenge his guilty plea for lack of proper
advisal if the plea itself triggers deportation. However, unlike the defendant in Padilla,

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appellant is an undocumented immigrant and is “deportable for that reason alone. In fact,
ICE had placed an immigration hold on [her] prior to [her] guilty plea[]. Therefore, even
if counsel failed to advise [her] about the effect of [her] guilty plea[] on [her]
deportability, [she] cannot show prejudice because [she] cannot demonstrate that [her]
deportability status was a consequence of [her] guilty plea[].” (Rigoberto v. State
(Tenn.Crim.App. 2012) slip opn. at p. 6, 2012 WL 6115530, citing numerous federal
opinions to that effect.)
                 Absent a showing of prejudice, appellant cannot prevail on her claim for
ineffective assistance of counsel. (Padilla v. Kentucky, supra, 559 U.S. at p. ___, 130
S.Ct. at p. 1487; In re Resendiz (2001) 25 Cal.4th 230, 253-254.) Because the record
shows she was adequately advised of the immigration consequences of her guilty plea,
and she was subject to deportation regardless of her plea, she is not entitled to relief.1
                                            DISPOSITION
                 The trial court’s order denying appellant’s motion to withdraw her guilty
plea is affirmed.


                                                             BEDSWORTH, J.
WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.



        1
                  “Our consideration of [appellant’s] undocumented status in no way implies that an undocumented
defendant can never successfully state a claim of ineffective assistance of counsel. New avenues may open in the
ever-changing field of immigration law that change the legal landscape for undocumented people. We simply ask
that undocumented defendants address the issue of their particular status and how different performance of counsel
could have led to a better outcome.” (Commonwealth v. Marinho (Mass. 2013) 981 N.E.2d 648, 662, fn. 21.)


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