Filed 5/10/16 P. v. Rodriguez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070947
         Plaintiff and Respondent,
                                                                        (Fresno Super. Ct. No. CF02671582)
                   v.

OCIEL HERNANDEZ RODRIGUEZ,                                                               OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Fresno County. Don Penner,
Judge.
         Jacob M. Weisberg for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
       Defendant Ociel Hernandez Rodriguez was convicted by guilty plea of possession
of methamphetamine (Health & Saf. Code, § 11378). The trial court sentenced him to 16
months in prison. The court denied defendant’s motion to vacate his conviction pursuant
to Penal Code section 1016.5.1 On appeal, defendant contends the trial court abused its
discretion in doing so because it had failed to give a complete and accurate oral
admonition regarding the immigration consequences of his plea. We affirm.
                                          FACTS
       On November 7, 2002, defendant signed a felony advisement, waiver of rights,
and plea form, which included a section entitled “CONSEQUENCES OF PLEA OF
GUILTY OR NO CONTEST.” One of those consequences stated:

              “2.     If I am not a citizen my change of plea could result in my
       deportation, exclusion from admission to the United States, and/or a denial
       of naturalization. Deportation is mandatory for some offenses. I have
       fully discussed this matter with my attorney and understand the
       serious immigration consequences of my plea.” (Emphasis original.)
       Defendant initialed the box that followed this statement and signed the form,
attesting that he had read, understood, and initialed each item on the form and that
everything on the form was true and correct. Defense counsel, Lourdes Arellano, signed
the form, attesting that she had discussed and explained the consequences of the plea with
defendant.
       At the change of plea hearing on the same day, substitute counsel appeared for
defense counsel. The following occurred:

              “[SUBSTITUTE COUNSEL]: Paul Hinkley with [defendant], who
       is present in court, in custody. This is Miss Arrellano’s [sic] case. I believe
       she discussed the matter with the Court in chambers and the Court had
       indicated that there would be an offer of a mitigated lid. There would be no
       CDC commitment without a 90-day diagnostic. And if the defendant has a



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


                                             2.
      substance abuse problem he maybe [sic] able to do a long term program.
      No promises made at this point in time. [¶] … [¶]

              “[THE COURT:] I have received a Felony Advisement, Waiver of
      Rights and Plea Form. Counsel, have you reviewed this form with your
      client or has his attorney?

             “[SUBSTITUTE COUNSEL]: His attorney has.

             “THE COURT: Are you confident he understands the rights he’s
      giving up and the consequences of his plea?

             “[SUBSTITUTE COUNSEL]: She assures me he does.

              “THE COURT: Factual basis pursuant to People v. West?

             “[PROSECUTOR]: Yes.

             “[SUBSTITUTE COUNSEL]: Yes.

              “THE COURT: [Defendant] do you agree if I read the police
      reports in this case I would find sufficient evidence to find you guilty of the
      charge to which you’re pleading to? You agree if I were to read the police
      reports I would find sufficient evidence to find you guilty to the charge to
      which you’re pleading?

             “THE DEFENDANT: Yes.

            “THE COURT: In other words, if I read the police reports, sir, I
      would think you’re guilty?

             “THE DEFENDANT: Yes.

             “THE COURT: All right. Now, sir, I’m holding up this tan Change
      of Plea Form[;] did you review the form with your attorney?

             “THE DEFENDANT: Yes.”
      The court then recited for defendant each of the rights he was waiving, and asked
defendant if he gave up each right. Defendant answered affirmatively to each question.
Then the following occurred:

             “THE COURT: And, sir, if you were not a citizen of the United
      States and knew by entering this plea you would be deported from the



                                            3.
       United States and prohibited from returning to the [United States] would
       you still enter this plea?

              “THE DEFENDANT: Yes.

              “THE COURT: How do you plead then to a violation of Health and
       Safety Code Section 11378, a felony, as listed in the Information? How do
       you plead, sir?

              “THE DEFENDANT: Guilty.

             “THE COURT: All right. Are you pleading guilty freely and
       voluntarily? Anybody force you to plead?

              “THE DEFENDANT: No.

              “THE COURT: So are you pleading freely and voluntarily?

              “THE DEFENDANT: Yes.

               “THE COURT: All right. Court will find there is a factual basis for
       the plea, that the plea and various waivers were made knowingly,
       intelligently and voluntarily and the court will accept the plea as stated.”
       (Italics added.)
       On October 29, 2014, defendant moved to vacate the judgment on the ground that
the record of advisement did not comply with the requirements of section 1016.5.
       On December 18, 2014, at the hearing on the motion to vacate, the trial court
denied the motion.
                                       DISCUSSION
       Before accepting a plea of guilty or no contest, a trial court is required to explain
to a defendant that “if the defendant is not a citizen of this country, conviction of the
charged offense ‘may have the consequences of deportation, exclusion from admission to
the United States, or denial of naturalization ….’ ” (People v. Arriaga (2014) 58 Cal.4th
950, 957; § 1016.5, subd. (a).2) “The defendant is then entitled to ‘additional time to

2       Section 1016.5, subdivision (a) provides: “Prior to acceptance of a plea of guilty
or nolo contendere …, 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

                                              4.
consider the appropriateness of the plea in light of the advisement ….’ [Citation.] The
section contemplates a period during which the defendant, without risking the loss of the
existing plea bargain, can reconsider its value in light of the immigration consequences
that will result from it and attempt to negotiate a different bargain that will not have the
same consequences.” (People v. Martinez (2013) 57 Cal.4th 555, 562, citing § 1016.5,
subds. (b) & (d).)
       If the trial court fails to give the advisements required by section 1016.5,
subdivision (a), the defendant may move to vacate the judgment and withdraw his guilty
plea. (§ 1016.5, subd. (b); People v. Arriaga, supra, 58 Cal.4th at p. 957.) “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.” (People v. Totari (2002) 28 Cal.4th
876, 884.) An order denying a motion to vacate the judgment under section 1016.5 is
reviewed for abuse of discretion. (People v. Superior Court (Zamudio) 23 Cal.4th (2000)
23 Cal.4th 183, 192.)
       The advisements required by section 1016.5 may be given in a validly executed
plea form rather than orally by the court. (People v. Ramirez (1999) 71 Cal.App.4th 519,
522-523.) In Ramirez, the defendant signed a change of plea form that included the
immigration advisements required by section 1016.5, but the trial court did not repeat
those advisements orally. (Ramirez, supra, at p. 520.) The defendant moved to vacate
the judgment on the ground the trial court failed to give the oral advisements. (Id. at
p. 521.) The trial court denied the motion. (Ibid.) The appellate court reasoned that the

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.”


                                              5.
legislative purpose of section 1016.5 is met if “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.” (Ramirez, supra, at p. 522.) The
court affirmed because the record contained a copy of the signed change of plea form, the
change of plea form warned the defendant of all three possible immigration consequences
“in precise statutory language,” the trial court had asked whether the defendant had
reviewed the form with his attorney, and the trial court had asked whether the form had
been translated into Spanish and the defendant understood it. (Id. at p. 523.)
       Here, defendant contends the trial court’s oral admonition did not include a full
advisement of the immigration consequences of his plea. He acknowledges, however,
that he did execute a valid written waiver that complied with section 1016.5. He explains
that Ramirez would apply in this case if the court had failed to provide any oral
admonition, but it does not apply because the court gave an incorrect advisement that
contradicted the written advisement.
       We disagree. The court’s oral advisement was neither incorrect nor contradictory.
It was merely incomplete. The advisement in the change of plea form was complete and
fully met the requirements of section 1016.5. Defendant initialed the immigration
advisement in the change of plea form and stated at the plea hearing that he had reviewed
the form with his attorney. Substitute counsel informed the court that defendant’s
counsel was confident defendant understood the rights he was giving up and the
consequences of his plea.
       We conclude the trial court substantially complied with the advisement
requirements of section 1016.5. The court did not abuse its discretion when it denied
defendant’s motion to vacate the judgment.




                                             6.
                             DISPOSITION
The order denying the motion to vacate the judgment is affirmed.




                                    7.
