Filed 2/17/17 P. v. Alatorre CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

OSWALDO OLVERA ALATORRE,

Defendant and Appellant.

G052533

(Super. Ct. No. C80068)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Request for judicial notice. Denied.

Law Offices of Don Chairez and Don P. Chairez for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

In 1990, defendant Oswaldo Olvera Alatorre, who is not a citizen of the United States, pled guilty to two felony counts of possession of a controlled substance for the purpose of sale. In 2015, defendant sought to withdraw his guilty plea, contending that the trial court failed to advise him of the immigration consequences of his guilty plea, as required by Penal Code section 1016.5. (Further statutory references are to the Penal Code unless otherwise noted.) We conclude the trial court did not err in denying defendant’s motion. The appellate record reflects that defendant was provided with an advisement of the immigration consequences of a guilty plea, and the declaration he submitted in connection with the motion to withdraw the guilty plea does not negate what the record establishes.

Defendant also argues that his attorney provided ineffective assistance in connection with the guilty plea by failing to ensure that defendant understood what the immigration advisement actually meant to him. A claim for ineffective assistance of counsel is not cognizable in a motion to withdraw a guilty plea under section 1016.5. The trial court did not err by denying this claim.

Therefore, we affirm the trial court’s postjudgment order.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 1990, defendant was charged with possession of cocaine and possession of heroin, both for the purpose of sale, in violation of Health and Safety Code section 11351. Defendant pled guilty to both counts as charged, and was placed on three years’ probation and ordered to spend 90 days in county jail.

In October 2013, defendant filed a motion to withdraw his guilty plea. Defendant argued that his appointed counsel had been ineffective for failing to advise defendant of the negative immigration consequences of his guilty plea, and in failing to have an interpreter assist defendant during the entry of his guilty plea. Defendant’s motion was denied.

In June 2015, defendant filed a new motion to withdraw his guilty plea, pursuant to section 1016.5. Defendant argued he was innocent of the charges, had only briefly spoken to his counsel through an interpreter, and had not been told that by pleading guilty he would never be able to legalize his status in the United States. This motion, too, was denied by the trial court. Defendant appeals from the denial of this second motion.

DISCUSSION

I.

THE TRIAL COURT DID NOT ERR BY DENYING THE SECTION 1016.5 MOTION.

Section 1016.5 provides, in relevant part: “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions 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. [¶] (b) . . . If, after January 1, 1978, 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 required by this section, the defendant shall be presumed not to have received the required advisement.”

To obtain relief under section 1016.5, defendant must demonstrate (1) the court failed to advise him of the immigration consequences of his guilty plea; (2) as a result of his conviction, defendant now faces the possibility of one or more of those immigration consequences; and (3) he was prejudiced by the trial court’s failure to provide him the necessary advisements under section 1016.5. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 200.) We review the court’s order denying a section 1016.5 motion to withdraw a guilty plea for abuse of discretion. (Id. at p. 192.)

The record establishes that the trial court did advise defendant of the immigration consequences of his guilty plea. At the first plea hearing, defendant was advised of the immigration consequences of his plea, and an interpreter was present. The guilty plea form includes the following language: “I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” Defendant initialed the box next to this statement.

At defendant’s second plea hearing, in the superior court, defendant was questioned about filling out the guilty plea form with his counsel, understanding the rights he was giving up, and the crimes to which he was pleading guilty. Specifically, the following colloquy occurred:

“[Deputy district attorney]: You also understand that by pleading guilty today, that this plea of guilty may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the United States laws if you’re not a citizen of the United States? [¶] Do you understand that, Mr. Alatorre?

“Defendant Alatorre: Yes.”

Defendant also confirmed that he had filled out the plea form and understood what was contained in it.

“[Deputy district attorney]: Mr. Alatorre, you had a chance to talk to your attorney about this case and all the possible defenses you may have in this case?

“Defendant Alatorre: Yes.

“[Deputy district attorney]: And when you filled out this form you placed your initials on the left hand side and you signed the form on page 2 and page 3, is that correct, Mr. Alatorre?

“Defendant Alatorre: Yes.

“[Deputy district attorney]: And you understand everything that’s contained on this form?

“Defendant Alatorre: Yes.”

The trial court’s minute order, which notes that defendant was advised of the consequences of his plea if he was not a citizen, does not identify the presence of an interpreter at the hearing. The guilty plea form itself, however, is signed on all pages by an interpreter.

Defendant’s declaration in support of his section 1016.5 motion does not negate the clear meaning of the record. Defendant claimed no one advised him of his possible defenses, or that pleading guilty would subject him to deportation or prevent him from legalizing his status. A few years after completing his sentence, defendant married. When his wife petitioned to get defendant a green card, he was told he could not complete the process.

However, defendant also admitted in his declaration that he was advised of the immigration consequences of the guilty plea in Spanish: “The interpreter returned and read the guilty plea advisement to all the defendants who were in custody. . . . [¶] . . . When the interpreter mentioned that there might be immigration consequences, I did not understand what she was saying. I was not familiar with the terms naturalization or exclusion for they are technical legal terms. I did [not] understand [or] fully comprehend the term, deportation. I later learned what these terms meant, but on the day of my . . . plea, they were technical legal terms that I did not understand.” (Italics added.) Nothing in defendant’s declaration, or in the transcript of the plea hearing, establishes that defendant’s inability to understand the section 1016.5 advisement was known to the court. (People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.)

A defendant cannot rely on statements in a declaration that are contradicted by the court’s record to obtain relief under section 1016.5. In another case challenging the defendant’s plea, the court noted: “Appellant argues that he ‘hastily signed’ the form, impliedly ‘did not read the form or understand it,’ and that he simply followed instructions of his attorney and the deputy district attorney. Appellant’s difficulty is that these assertions are not supported by the record. The declaration signed by appellant in support of his motion to vacate the plea does not corroborate the naked claims made in the opening brief. As relevant here, he stated only that he was not advised of exclusion from admission, his attorney told him he would not be deported, he has suffered understandably adverse consequences from his exclusion, and he would not have entered the plea if he had been properly advised. He does not contradict his statement to the court that he read, signed, initialed and understood the form.” (People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.)

Similarly, in this case, by denying defendant’s motion to withdraw his guilty plea, the trial court impliedly found defendant was not credible as to the circumstances of his guilty plea. The trial court resolves the factual issues on a motion to vacate a plea agreement. (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 210.) As long as the court’s finding is supported by substantial evidence, we must accept it. (People v. Gutierrez, supra, 106 Cal.App.4th at p. 176.)

Because defendant did not demonstrate that the trial court failed to advise him of the immigration consequences of his guilty plea, the trial court did not err in denying the motion to withdraw the guilty plea. We need not consider the other two requirements of section 1016.5.

II.

DEFENDANT CANNOT ASSERT A CLAIM FOR INEFFECTIVE ASSISTANCE OF COUNSEL THROUGH A SECTION 1016.5 MOTION.

Defendant also argues his trial counsel provided ineffective assistance of counsel by failing to advise him of the immigration-related consequences of his guilty plea. A claim of ineffective assistance of counsel is not cognizable in a motion pursuant to section 1016.5. (People v. Kim (2009) 45 Cal.4th 1078, 1107 1108, fn. 20; People v. Arendtsz (2016) 247 Cal.App.4th 613, 618-619; People v. Limon (2009) 179 Cal.App.4th 1514, 1519; People v. Chien (2008) 159 Cal.App.4th 1283, 1290.) As the trial court correctly noted in denying defendant’s motion, “[s]ection 1016.5 places a duty on the court, not on counsel.” (Underscoring omitted.)

DISPOSITION

The postjudgment order is affirmed.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.