Filed 2/18/16 P. v. Segura CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070070
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR030664)
                   v.

SALVADOR HIGAREDA SEGURA,                                                                OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Madera County. Dale J. Blea,
Judge.
         Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Kane, J. and Smith, J.
       Appellant Salvador Higareda Segura appeals from the trial court’s denial in case
No. MCR030664 of his motion “to vacate on constitutional grounds” and “reopen case
under California Penal Code section 1016.5.”1 We affirm.
                                          FACTS
       On March 28, 2008, Segura pled no contest to stalking (§ 646.9, subd. (a)) and
admitted an on-bail enhancement (§ 12022.1) in case No. MCR030664 as a part of a plea
bargain, pursuant to which he pled to charges in two other cases and admitted violating
his probation in a fourth case, in exchange for a stipulated term of six years.
       Prior to entering his plea, Segura signed a change of plea form and he placed his
initials next to the following statement on the form:

              “My attorney has explained the possible penalties and consequences
       of the plea(s) of GUILTY to be … if not a citizen, my plea may have the
       consequence of my deportation, exclusion from admission to the United
       States or denial of naturalization pursuant to the laws of the United States.”
       During the plea colloquy, Segura acknowledged that the form had been translated
to him, that he initialed it, and that he understood its contents. Additionally, the
following exchange occurred:

              “THE COURT: Do you understand if you’re not a citizen of the
       United States, you should assume that your plea will result in your
       deportation, exclusion from admission to the United States, and denial of
       naturalization under the laws of the United States?

               “THE DEFENDANT: Yes sir.”
       On May 1, 2008, the court sentenced Segura to the stipulated six-year term as
follows: the middle term of two years on Segura’s stalking conviction, an eight-month
term on each of three remaining convictions, and a two-year term on the on-bail
enhancement.


1      All further statutory references are to the Penal Code.


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       On July 10, 2014, in case No. MCR30664, Segura filed a pro se motion titled,
“Nonstatutory Motion to Vacate on Constitutional Grounds[;] Motion to Reopen Case
Under … Section 1016.5.” (Unnecessary capitalization omitted.) In the moving papers,
Segura contended he was denied the effective assistance of counsel in entering his plea,
because defense counsel did not advise him that his plea to stalking would make him
deportable, investigate the immigration consequences of his plea, or assist him in filing a
motion to withdraw his plea.
       On August 1, 2014, the court denied Segura’s motion.
       On September 2, 2014, Segura filed an appeal.
                                       DISCUSSION
       Segura states in his opening brief that he is not appealing the trial court’s denial of
his motion. Instead, he contends that since he established a prima facie case for habeas
corpus relief, the trial court should have treated his motion as a petition for writ of habeas
corpus. Thus, according to Segura, the matter should be remanded with directions to the
trial court to treat his motion as a petition for writ of habeas corpus. We disagree.
       Section 1016.5, in pertinent part, provides:

               “(a) Prior to acceptance of a plea of guilty or nolo contendere to any
       offense punishable as a crime 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 consequences of deportation,
       exclusion from admission to the United States, or denial of naturalization
       pursuant to the laws of the United States. (Italics added.)

               “(b) ... 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



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       required by this section, the defendant shall be presumed not to have
       received the required advisement.…”
       It is undisputed that the court advised Segura of the three immigration
consequences of his plea it was required to advise him of pursuant to section 1016.5.
Further, section 1016.5 did not grant the court jurisdiction to consider an ineffectiveness
of counsel claim with respect to his plea. (People v. Aguilar (2014) 227 Cal.App.4th 60,
71.) Accordingly, we conclude that the trial court did not abuse its discretion when it
denied Segura’s motion.
       Moreover, Segura did not designate his motion in the trial court as a petition for
writ of habeas corpus, the motion was not verified as required for a petition for a writ of
habeas corpus (§ 1474, subd. (3)), and Segura did not explain or justify his delay in
seeking relief. (In re Clark (1993) 5 Cal.4th 750, 783 [the petitioner must explain and
justify any substantial delay in presenting a claim].) Additionally, since Segura has not
cited any supporting authority, we reject his contention that the court should have treated
his motion as a petition for a writ of habeas corpus, and we decline to remand this matter
to the trial court for it to do so.
                                      DISPOSITION
       The August 1, 2014 order denying Segura’s motion, filed on July 10, 2014 in case
No. MCR030664, is affirmed.




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