People v. Ortiz CA2/4 ( 2016 )

Filed 6/9/16 P. v. Ortiz CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B265715
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA078145)
v.
PATRICIA ORTIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
A. Cowell, Judge. Affirmed.
Law Offices of Zulu Ali, Zuli Ali for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Steven D. Matthews and Tannaz Kouhpainezhad, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
In connection with her guilty plea, defendant Patricia Ortiz was advised of the
immigration consequences of that plea pursuant to Penal Code1 section 1016.5,
subdivision (a). She later filed a motion to vacate her conviction on the basis that she
was not properly advised pursuant to section 1016.5. The court denied the motion and
defendant now appeals. We affirm.
FACTUAL AND PROCEDURAL SUMMARY2
On October 9, 2003, defendant pled guilty to one count of possession of marijuana
for sale in violation of Health and Safety Code section 11359 (count 2). Prior to entry of
her plea, the court advised defendant as follows: “If you are not a citizen of the United
States you will be deported, denied reentry into the country, and denied the right to
become a natural citizen. Do you understand the consequences of your plea?” Defendant
responded “yes, sir.”3 Defendant also signed a written plea agreement, initialing next to
the acknowledgment that she understood she could be subject to deportation, exclusion,
or denial of naturalization. The court found that defendant waived her rights “knowingly,
understandingly, and explicitly,” and counsel joined in the waiver.
The court then accepted defendant’s plea as to count 2 and dismissed the
remaining four counts pursuant to the plea. The court sentenced defendant to 73 days in
jail and three years formal probation, with 73 days of presentence custody credit.
Eleven years later, in 2015, defendant filed a motion to vacate her conviction.
Defendant’s motion claimed that she was “currently being held in immigration custody
and is seeking relief from deportation,” and argued that she “should have been warned”
that her conviction “would likely result in removal proceedings.” In her supporting
declaration, defendant stated that the court “never informed me that pleading guilty to the
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
We omit the facts underlying the charged crime, as they are not relevant to the
issue on appeal.
3
The transcript of defendant’s plea hearing is not included in the record on appeal.
However, at the hearing on defendant’s subsequent motion to vacate her plea, the court
read the pertinent portion of the plea hearing transcript into the record.
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criminal charge at issue would subject me to mandatory deportation,” and that “[h]ad I
known that pleading guilty” would result in mandatory deportation, “I would have never
agreed to accept the plea, I would have retained an attorney and taken the case to trial.”
At the hearing on defendant’s motion, on April 27, 2015, the court reviewed the
transcript from defendant’s 2003 plea hearing and found, “Clearly, notwithstanding the
contention that she was not properly advised of the consequences of her plea, she was
properly advised. She indicated an awareness of that. And she entered [her] plea
notwithstanding.” The court thus denied the motion.
Defendant timely appealed.
DISCUSSION
Section 1016.5 requires that, before accepting a plea of guilty or nolo contendere
to any criminal offense, the trial 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.” (§ 1016.5, subd. (a).) The statute further
allows the defendant to move to vacate the judgment 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 [adverse
immigration] consequences.” (§ 1016.5, subd. (b).)
“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; see also People v. Arendtsz (May 19, 2016,
B264807)__Cal.App.4th__ [2016 WL 2967973] (Arendtsz).) We review the trial court’s
denial of defendant’s motion to vacate the judgment for an abuse of discretion. (People
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v. Superior Court (Zamudio) (2000) 23 Cal.4th 183,192; People v. Chien (2008) 159
Cal. App. 4th 1283, 1287.)
Defendant argues she “was not advised that [her] plea would result in mandatory
deportation.” This contention lacks merit. The record reflects that defendant was
properly advised in accordance with section 1016.5 that her plea could have specified
immigration consequences, including deportation. In fact, defendant was expressly
advised at her plea hearing that if she was not a citizen, “you will be deported, denied
reentry into the country, and denied the right to become a natural citizen.” She
acknowledged her understanding of these consequences, both verbally at the hearing and
in writing on her plea agreement.
We reject defendant’s unsupported suggestion that we must presume she was not
properly advised where “the record does not provide . . . whether the advisements
regarding immigration consequences were on the record, reflected in any transcripts of
oral proceedings.” While the record on appeal does not contain a copy of the transcript
from defendant’s plea hearing, it is defendant’s burden on appeal to present an adequate
record for review and to demonstrate error. (People v. Carter (2010) 182 Cal. App. 4th
522, 531, fn. 6.) Defendant’s failure to do so, coupled with her failure to raise this issue
below (or object to the trial court’s reading of the transcript from her plea hearing),
forfeits her right to assert this challenge on appeal. (See People v. Gonzales (2012) 54
Cal. 4th 1234, 1252.)
More importantly, both the minute order from that hearing and the court’s
discussion during the hearing on the motion to vacate confirm that defendant was
provided the proper advisements before the court accepted her plea. Finally, even if the
court had not provided an oral advisement during the plea hearing, defendant was
adequately advised of immigration consequences, and acknowledged her understanding
of those consequences, in her written plea agreement. (See People v. Araujo (2016) 243
Cal. App. 4th 759, 762 [verbal advisement under section 1016.5 not required]; People v.
Ramirez (1999) 71 Cal. App. 4th 519, 521 [“[A] validly executed waiver form is a proper
substitute for verbal admonishment by the trial court. [Citation.]”].) The statutory
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presumption that defendant was not properly advised does not require an oral advisement,
instead arising only “[a]bsent a record that the court provided” the requisite advisement.
(§ 1016.5, subd. (b).) Such is not the case here.
Defendant next contends that the “generic recital” pursuant to section 1016.5 is
insufficient and that the trial court “must adopt a more engaged role when advising a
noncitizen of the potentially harsh immigration consequences that would result from his
or her plea,” relying on the United States Supreme Court’s decision in Padilla v.
Kentucky (2010) 559 U.S. 356, 372–374 (Padilla ) Specifically, defendant asserts the
court was required to advise her of certain “special immigration consequences,” such as
“the unavailability of certain relief like cancellation of removal or asylum.” In Arendtsz,
our sister court rejected an identical argument (Arendtsz, supra, __Cal.App.4th__ [2016
WL 2967973, *2-3].) We agree with the Arendtsz court that Padilla “has no material
bearing on this case.” (Id. at *3.) Padilla addressed a claim of ineffective assistance of
counsel, finding that it was “critical” for a defense attorney “to inform her noncitizen
client that he faces a risk of deportation” following a plea. (Padilla, supra, 559 U.S. at
pp. 373-374.) Padilla did not, however, concern a trial court’s duty to advise a defendant
regarding certain immigration consequences or the adequacy of any such advisement
under section 1016.5. (Ibid.; see also Arendtsz, supra, __Cal.App.4th__ [2016 WL
2967973, *3].)
Similarly, we disagree with defendant that the “legislative intent” behind section
1016.5 compels a broader advisement than the statute expressly requires. Section 1016.5
includes a statement that “it is the intent of the Legislature in enacting this section to
promote fairness to such accused individuals by requiring in such cases that acceptance
of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the
special consequences for such a defendant which may result from the plea.” (§ 1016.5,
subd. (d), italics added.) But these fairness concerns “do not override the express
language of section 1016.5, subdivision (a).” (Arendtsz, supra, __Cal.App.4th__ [2016
WL 2967973, *2]; People v. Chien, supra, 159 Cal.App.4th at p. 1288 [“The broad
statement of intent in [section 1016.5,] subdivision (d), and its concern with fairness to
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the accused, does not override the section’s narrow requirements and precise remedy.”];
People v. Hyung Joon Kim (2009) 45 Cal. 4th 1078, 1108, fn. 11 [§ 1016.5 does not
extend beyond its terms]; People v. Mbaabu (2013) 213 Cal. App. 4th 1139, 1145
[§ 1016.5 does not require advisement of other consequences specified in Padilla].)
In short, “there is nothing in Padilla or under California law, including the
Legislature’s fairness concerns, that compels a trial court to specifically advise on asylum
or cancellation of removal,” and nothing in section 1016.5 that “requires more than an
advisement of the three major consequences of a plea that are specified in subdivision (a).
[Citations.]” (Arendtsz, supra, __Cal.App.4th__ [2016 WL 2967973, *3].) Defendant
here received the statutory advisement required; thus, it was not error for the trial court to
deny her motion to vacate the judgment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
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