People v. Arendtsz

Filed 5/19/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B264807
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA062998)
v.
GRANVILLE KINGSLEY ARENDTSZ,
Defendant and Appellant.
Appeal from an order of the Superior Court of Los Angeles County, Jared Moses,
Judge. Affirmed.
Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTON
Defendant, Granville Kingsley Arendtsz, appeals from an order denying his Penal
Code section 1016.51 motion to vacate his nolo contendere plea. Defendant argues, as he
did in the trial court, that he should have been advised he would be denied special forms
of removal relief such as asylum. The trial court did not abuse its discretion in ruling
defendant was properly advised of the immigration consequences of his nolo contendere
plea. Accordingly, we affirm the denial order.
II. BACKGROUND
On March 10, 2006, defendant pled nolo contendere to felony sexual battery in
violation of section 243.4. Prior to defendant’s plea, former Deputy District Attorney
Teresa Sullivan, twice advised him that his plea would result in adverse immigration
consequences if he was not a United States citizen: “Ms. Sullivan: If you’re not a citizen
of the United States, you’re hereby advised that conviction of this offense[] will result in
deportation, exclusion from admission to the United States and denial of naturalization.
[¶] Do you understand? [¶] The Defendant: Yes. [¶] . . . [¶] Ms. Sullivan: Sir, just
to reiterate, I do believe I advised you, do you understand if you are not a citizen, this
plea will result in deportation? [¶] The Defendant: Yes.” (Italics added.)
Nine years later, on February 27, 2015, defendant filed his section 1016.5 motion.
Defendant’s motion states, “Defendant is currently in immigration removal proceedings
and has been ordered removed by the United States Citizenship and Immigration
Services.” The prosecution did not dispute that statement. Defendant argued in part he
was not warned he could be denied special forms of relief from removal including
“Cancellation of Removal and Asylum.” In his declaration submitted with the motion,
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Further statutory references are to the Penal Code unless otherwise noted.
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defendant averred, “The [trial] court . . . never informed me that pleading guilty to the
criminal charge at issue would subject me to mandatory deportation.” (Italics added.)
Defendant further asserted, “At no time did prior counsel advise me of the immigration
consequences of pleading guilty to a violation of [section] 243.4.” Defendant concluded,
“Had I known that pleading guilty to a violation of [section] 243.4 would result in being
subjected to mandatory deportation, I would have never agreed to accept the plea, I
would have taken the case to trial.” (Italics added.) The trial court denied the motion
finding defendant had been properly advised on the record as required under section
1016.5.
III. DISCUSSION
Section 1016.5, subdivision (a), requires a trial court, prior to accepting a guilty,
nolo contendre or no contest plea, to administer the following advisement on the record:
“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.” Section 1016.5 further provides, “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 . . . the court, on defendant’s motion, shall vacate the
judgment and permit the defendant to withdraw the plea . . . and enter a plea of not
guilty.” (§ 1016.5, subd. (b).) Our Supreme Court has held, to obtain that relief, the
following must be present: the defendant was not properly advised of the immigration
consequences of the plea as required by section 1016.5, subdivision (a); there existed, 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 the defendant was
prejudiced by the nonadvisement. (People v. Totari (2002) 28 Cal. 4th 876, 884; accord,
People v. Araujo (2016) 243 Cal. App. 4th 759, 762.) The defendant bears the burden of
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demonstrating prejudice. (People v. Arriaga (2014) 58 Cal. 4th 950, 963; People v.
Martinez (2013) 57 Cal. 4th 555, 558, 562, 565.) The accused must prove it was
reasonably probable he or she would not have entered a guilty, no contest or nolo
contendere if properly advised. (Id. at pp. 558, 562, 565; accord, People v. Superior
Court (Zamudio) (2000) 23 Cal. 4th 183, 210.) Our Supreme Court has explained: “To
that end, the defendant must provide a declaration or testimony stating that he or she
would not have entered into the plea bargain if properly advised. It is up to the trial court
to determine whether the defendant’s assertion is credible, and the court may reject an
assertion that is not supported by an explanation or other corroborating circumstances.”
(People v Martinez, supra, 57 Cal.4th at p. 565; see People v. Asghedom (2015) 243
Cal. App. 4th 718, 726.) Our review is for an abuse of discretion. (People v. Superior
Court (Zamudio), supra, 23 Cal.4th at pp. 192, 199-200; People v. Chien (2008) 159
Cal. App. 4th 1283, 1287.)
Defendant was correctly advised of the immigration consequences of his nolo
contendere plea as required by law. Prior to entering his no contest plea, defendant was
twice advised of the immigration consequences as required by section 1016.5,
subdivision (a). Defendant was advised not only that his plea may have immigration
consequences, but that it would result in: deportation; exclusion from admission to the
United States; and denial of naturalization. Defendant also failed to establish prejudice.
He has failed to show that he would have rejected the plea agreement he bargained for if
he had received the advisements that he asserts should have been given. Defendant’s
uncorroborated declaration accompanying his section 1016.5 motion states only that he
would not have pled nolo contendere if he had been informed that his plea would result in
mandatory deportation. But that is precisely what he was twice told—namely, that his
nolo contendere plea “will result” in his deportation. Defendant therefore has not
established prejudice. (People v. Martinez, supra, 57 Cal.4th at pp. 558, 562, 565;
People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 210.)
Defendant argues the foregoing no longer accurately represents California law.
Defendant relies on an unspecified “legislative intent” behind section 1016.5 and the
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United States Supreme Court’s decision in Padilla v. Kentucky (2010) 559 U.S. 356, 372-
374 (Padilla). Defendant argues the trial court should have advised him of additional
immigration consequences. Specifically, defendant argues he should have been advised
he may be ineligible to apply for certain types of immigration relief such as asylum or
withholding a removal or cancellation removal. This contention is without merit.
Section 1016.5 includes a statement of legislative intent concerning fairness to
potentially deportable individuals: “The Legislature finds and declares that in many
instances involving an individual who is not a citizen of the United States charged with
an offense punishable as a crime under state law, a plea of guilty or nolo contendere is
entered without the defendant knowing that a conviction of such offense is grounds for
deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States. Therefore, 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. It is also the intent of the Legislature that the court in such cases shall
grant the defendant a reasonable amount of time to negotiate with the prosecuting agency
in the event the defendant or the defendant’s counsel was unaware of the possibility of
deportation, exclusion from admission to the United States, or denial of naturalization as
a result of conviction. It is further the intent of the Legislature that at the time of the plea
no defendant shall be required to disclose his or her legal status to the court.” (§ 1016.5,
subd. (d), italics added.)
But the fairness concerns expressed in the immediately preceding paragraph do
not override the express language of section 1016.5, subdivision (a). The Court of
Appeal has held, “The broad statement of intent in [section 1016.5,] subdivision (d), and
its concern with fairness to the accused, does not override the section’s narrow
requirements and precise remedy.” (People v. Chien, supra, 159 Cal.App.4th at p. 1288;
see 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, 1165
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[§ 1016.5 does not require advisement of other consequences specified in Padilla].)
Nothing in section 1016.5 requires more than an advisement of the three major
consequences of a plea that are specified in subdivision (a). (People v. Gutierrez (2003)
106 Cal. App. 4th 169, 174; People v. Gontiz (1997) 58 Cal. App. 4th 1309, 1316,
disapproved on another point in People v. Superior Court (Zamudio), supra, 23 Cal.4th at
p. 200, fn. 8 [“The statute requires the court to warn the defendant expressly of each of
the three distinct possible immigration consequences of his conviction(s) prior to his
plea”].) Defendant received precisely that advisement.
The United States Supreme Court’s holding in Padilla has no material bearing on
this case. Padilla concerned ineffectiveness of counsel. Padilla did not address a trial
court’s duty to advise noncitizen defendants. In Padilla, the court held a defense attorney
provides constitutionally deficient assistance when a non-citizen client is not advised
about the risk of deportation attendant to a guilty plea. (Padilla, supra, 559 U.S. at pp.
373-374; see People v. Shokur (2012) 205 Cal. App. 4th 1398, 1405.) Defendant does not
argue his attorney was ineffective. And even if he did, he may not raise such a claim
under section 1016.5. (People v. Hyung Joon Kim, supra, 45 Cal.4th at p. 1107, fn. 20;
People v. Aguilar (2014) 227 Cal. App. 4th 60, 71; People v. Chien, supra,159
Cal.App.4th at p. 1285.)
Defendant additionally rests his argument on the fact that when section 1016.5
was enacted, in 1977, federal judges had the authority to issue a judicial recommendation
against deportation. Congress eliminated that authority in 1990. (Padilla, supra, 559
U.S. at p. 363; U.S. v. Hovsepian (9th Cir. 2004) 359 F.3d 1144, 1157.) Defendant
reasons that, given this change in federal law, “Courts . . . must adopt a more engaged
role when advising a noncitizen of the potentially harsh immigration consequences that
would result from his or her plea.” Defendant concludes, “[A] simple advisement under
the generic recital set[]forth in [section 1016.5, subdivision (a)] is unfair, not proper, and
does not reflect the legislative intent of the statute.” We cannot rewrite section 1016.5 to
conform to defendant’s notion of what the Legislature would want it to say. (In re
Hoddinott (1996) 12 Cal. 4th 992, 1002; People v. Gipson (2013) 213 Cal. App. 4th 1523,
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1530; People v. Harper (2003) 109 Cal. App. 4th 520, 524.) It is true that, as discussed in
Padilla, the lack of judicial discretion to prevent deportation necessarily makes it crucial
that defense counsel properly advise a criminal defendant. (Padilla, supra, 559 U.S. at p.
369; Abraham v. U.S. (8th Cir. 2012) 699 F.3d 1050, 1052.) However, 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.
IV. DISPOSITION
The order denying defendant’s Penal Code section 1016.5 motion is affirmed.
CERTIFIED FOR PUBLICATION
TURNER, P.J.
We concur:
BAKER, J.
KUMAR, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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