Filed 7/8/16 P. v. Ramirez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063048

v.                                                                      (Super.Ct.No. RIF1407176)

VENTURA LOPEZ RAMIREZ,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Judge. Affirmed.

         Zulu Ali and Mohammad H. Iranmanesh for Defendant and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Scott C.

Taylor, and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and

Respondent.

         Defendant and appellant Ventura Lopez Ramirez appeals the denial of his

postjudgment motion to vacate a 2014 conviction for felony spousal abuse. Defendant
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contends that he was not properly advised of the immigration consequences of his guilty

plea. (Pen. Code, § 1016.5.1) We affirm.

                    I. FACTS AND PROCEDURAL BACKGROUND

       On June 4, 2014, defendant was charged with one count of felony spousal abuse

(§ 273.5, subd. (a)) and one count of misdemeanor battery on a spouse (§ 243, subd.

(e)(1)). On July 10, 2014, defendant pled guilty to felony spousal abuse and the other

count was dismissed. Prior to pleading guilty, defendant initialed numerous boxes on the

plea form, including the following:

       “B. CONSEQUENCES OF PLEA (1 through 5 apply to everyone): [¶] . . . [¶]

4. 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. [¶] . . . [¶] C. DEFENDANT’S

STATEMENT: [¶] . . . [¶] 4. I have had adequate time to discuss with my attorney (1)

my constitutional rights, (2) the consequences of any guilty plea, and (3) any defenses I

may have to the charges against me.”(Original boldface.)

       At the end of the plea form, defendant signed on the line designated for the

defendant, which stated immediately above the signature line: “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.” Defendant’s attorney then signed on the

signature line designated for the defense counsel, which stated immediately above the


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

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signature line: “I am the attorney for the defendant. I am satisfied that (1) the defendant

understands his/her constitutional rights and understand[s] 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 may 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.” Lastly, an interpreter signed the plea form on the

signature line designated for an interpreter, which stated immediately above the signature

line: “Having been duly sworn, I have translated this form to the defendant in the

Spanish language. The defendant has stated that he/she fully understood the contents of

the form prior to signing.”

       Immediately before accepting the plea, the trial court, via a translator, advised

defendant of the “charges and consequences of his/her plea and statutory sentencing,”

and found that defendant “has the ability to understand and does understand his/her

constitutional rights.” The trial court placed defendant on probation for three years.

       On August 15, 2014, the Department of Homeland Security served defendant with

a notice to appear before an immigration judge for removal from the United States. On

October 15, 2014, in an attempt to fight the removal proceedings, defendant moved to

withdraw his guilty plea on the grounds his counsel “failed to research and properly

inform [him] of the deportation consequences resulting from a plea of guilty.” His

declaration faults both his counsel the trial court for not properly advising him of the

immigration consequences of his plea. He declared that it “was not until I was taken into

custody by Immigration and Customs Enforcement that I realized the immigration

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consequences of the plea in this case.” On January 13, 2015, the trial court denied the

motion.

       On March 10, 2015, defendant filed a notice of appeal and a request for a

certificate of probable cause. The notice stated that the appeal challenged the validity of

the plea. The request for a certificate of probable cause related that the basis for the

appeal was that the trial court failed to advise defendant regarding the immigration

consequences of his plea. The trial court denied the request for a certificate of probable

cause and notified defendant that his notice of appeal was deemed “inoperative.”

Subsequently, defendant filed an amended notice of appeal, which stated that the appeal

“is based on the sentence or other matters occurring after the plea that do not affect the

validity of the plea,” and “challenges the validity of the plea.” The request for certificate

of probable cause again asserted that the trial court failed to advise defendant regarding

the immigration consequences of his plea. The trial court denied the request for a

certificate of probable cause; however, the appeal proceeded. Defendant’s sole issue on

appeal is whether his trial counsel’s failure to advise him of the immigration

consequences of his guilty plea constituted inadequate assistance.

                                     II. DISCUSSION

       The Attorney General argues that the appeal should be dismissed, because

defendant failed to obtain a certificate of probable cause pursuant to section 1237.5. We

disagree. A certificate of probable cause is not required for an appeal from the denial of a

motion to vacate under section 1016.5. (People v. Arriaga (2014) 58 Cal.4th 950, 955,

958-960.) The Attorney General argues that the appeal should be dismissed because

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defendant failed to obtain a certificate of probable cause pursuant to section 1237.5. We

disagree. A certificate of probable cause is not required for an appeal from the denial of a

motion to vacate under section 1016.5. (People v. Arriaga (2014) 58 Cal.4th 950, 955,

958-960 [defendant is not required to obtain a certificate of probable cause before

appealing the denial of a motion to vacate a conviction based upon allegedly inadequate

advisement of immigration consequences of a plea].) Although defendant labeled his

motion as a “MOTION TO WITHDRAW GUILTY PLEA” and references section 1018,

instead of section 1016.5, we consider this to be a difference without a distinction:

defendant contends that both his counsel and the trial court failed to properly advise him

of the immigration consequences triggered by his plea.

       “[T]he right to appeal a trial court’s denial of a motion to vacate a conviction

under section 1016.5 is authorized by section 1237’s subdivision (b). Unlike section

1237’s subdivision (a), the right of appeal authorized by that section’s subdivision (b) is

not limited by section 1237.5. Section 1237’s subdivision (b) simply says that an appeal

may be taken by the defendant ‘[f]rom any order made after judgment, affecting the

substantial rights of the party.’” (Arriaga, supra, 58 Cal.4th at p. 960.) “Because it is

section 1237’s subdivision (b) that authorizes an appeal from a trial court’s order denying

a section 1016.5 motion to vacate a conviction [citation], and that subdivision does not

condition the right to appeal on first obtaining a certificate of probable cause, defendant

here was not required to obtain a certificate of probable cause before challenging the

denial order on appeal.” (Ibid., fns. omitted.)



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       On the merits, the trial court did not abuse its discretion in denying the motion.

(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) “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. [Citations.]” (People v. Totari

(2002) 28 Cal.4th 876, 884.) The record demonstrates that defendant was properly

advised by the trial court that immigration consequences may follow his plea.

       Notwithstanding the above, defendant contends that the court’s advisement does

not replace advice required by his counsel, and thus, it is insufficient to deem him

adequately advised and warned. However, “[s]ection 1016.5 addresses only the duty of

trial courts to advise the defendant of the immigration consequences of the plea, and it

empowers the court to vacate a conviction and set aside a plea only for the court’s failure

to fulfill that duty. It does not address any duty that defense counsel may have to provide

such advice, nor does it empower the court to vacate a conviction or set aside a plea for

counsel’s failure to fulfill his or her duty in that regard. For that reason, section 1016.5

does not provide the trial court with jurisdiction to address a claim that a defendant was

deprived of the effective assistance of counsel by counsel’s failure to fully advise him or

her of the immigration consequences of a guilty plea. [Citation.]” (People v. Aguilar

(2014) 227 Cal.App.4th 60, 71 (Aguilar).)



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       “The fact that [defendant’s] motion does not entitle him to relief under section

1016.5 does not end the inquiry. The duties that defense counsel owes to a noncitizen

criminal defendant client may be shown to involve providing his or her client with

counsel’s own advice as to the consequences of a plea, even when the court has provided

the advice required by section 1016.5. [Citation.] The California Supreme Court [has]

held that a defendant can pursue a claim for relief for ineffective assistance of counsel,

based on counsel’s misadvice regarding immigration consequences, notwithstanding that

the trial court had properly advised the defendant under section 1016.5. (In re Resendiz

[(2001) 25 Cal.4th 230], 240–242.)[2] ‘[T]hat a defendant may have received valid

section 1016.5 advisements from the court does not entail that he has received effective

assistance of counsel in evaluating or responding to such advisements.’ [Citation.]

Constitutionally adequate assistance ‘“must be determined by a standard bottomed on the

Sixth Amendment of the United States Constitution and article I, section 15 of the

California Constitution.”’ [Citation.] Therefore ‘[i]n any case presenting an

ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was

reasonable considering all the circumstances.’ [Citation.]” (Aguilar, supra, 227

Cal.App.4th at pp. 71-72, fns. omitted.)

       In this appeal, defendant’s claim of ineffective assistance of counsel fails. A

defendant claiming ineffective assistance of counsel must show not only that counsel’s

performance fell below an objective standard of reasonableness under prevailing

       2 In re Resendiz was abrogated on another ground in Padilla v. Kentucky (2010)
559 U.S. 356, 370-371.

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professional norms, but also must show prejudice. (Strickland v. Washington (1984) 466

U.S. 668, 694; Padilla v. Kentucky, supra, 559 U.S. at p. 366.) The record is devoid of

any evidence showing that defendant’s counsel affirmatively misadvised him. There is

no declaration in the record from his counsel to attest to defendant’s self-serving

statements. In addition, neither defendant nor his counsel testified at the motion to vacate

hearing in January 2015. Defendant’s self-serving assertions that counsel did not

properly advise him and that he otherwise would not have pled as he did are plainly

insufficient to establish ineffective assistance. (In re Alvernaz (1992) 2 Cal.4th 924, 938

[defendant’s self-serving statement that he would have acted differently but for counsel’s

ineffective assistance “must be corroborated independently by objective evidence”].)

       Defendant’s claim of ineffective assistance of counsel does not arise in a context

in which the trial court observed counsel’s performance during the course of a jury trial.

(Cf. People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) His claim is that, in receiving

advice from his counsel, he did not get adequate advice or that he was misadvised

concerning the immigration consequences of his plea. Because defendant’s contention is

based on a factual showing akin to a petition for habeas corpus, the issue “is more

appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997)

15 Cal.4th 264, 266-267 [claim that trial counsel rendered ineffective assistance in failing

to make a motion to suppress evidence was not suitable for resolution on appeal because

the record did not show the reasons for counsel’s failure to do so].)

       In sum, the trial court properly denied the motion to vacate the judgment and

withdraw the plea.

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                                    III. DISPOSITION

      The trial court’s order denying the motion to vacate defendant’s 2014 conviction is

affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORT



                                                             HOLLENHORST
                                                                      Acting P. J.
We concur:

      MILLER
                               J.

      SLOUGH
                               J.




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