People v. Padilla CA6

Filed 7/2/14 P. v. Padilla CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039831
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C9916093)

v.

RUBEN PADILLA,

Defendant and Appellant.

Defendant Ruben Padilla appeals from a 2013 order denying his Penal Code
section 1016.51 motion to vacate his 1999 judgment of conviction and to withdraw his
plea of no contest to one count of possession of cocaine for sale (Health & Saf. Code,
§ 11351). He contends his plea must be set aside because the trial court did not
adequately explain the immigration consequences of the plea as required by section
1016.5. We conclude that the trial court substantially complied with the requirements of
section 1016.5. We will therefore affirm the trial court’s order denying defendant’s
motion to vacate the judgment and withdraw his plea.

1
All further unspecified statutory references are to the Penal Code.
 FACTS2

On January 24, 1999, defendant was contacted by San José Police Officer Raul
Martinez, a member of the Narcotics Enforcement Team (NET), in a “high narcotic
area.” After defendant agreed to a pat search, Officer Martinez found: (1) a plastic bag
that contained 29.5 grams of powder cocaine inside defendant’s pants; (2) $314 in cash;
and (3) a pager. The pager sounded four times in 15 minutes. After obtaining consent to
search defendant’s home, the NET found $540 in cash in a jacket in defendant’s closet.

PROCEDURAL HISTORY

Initial Proceedings

Defendant was charged by complaint with one count of possession of cocaine for
sale (Health & Saf. Code, § 11351). At the preliminary hearing in May 1999, defendant
was held to answer. He was subsequently charged by information with the same offense,
to which he pleaded not guilty.

Plea Agreement and Change of Plea Hearing

On August 23, 1999, after the case was assigned to a trial department, the parties
entered into a negotiated disposition under which defendant pleaded no contest to
possession of cocaine for sale (Health & Saf. Code, § 11351) in exchange for a
“conditional no state prison” sentence of 10 months “top/bottom” (probation with 10
months in jail as a condition of probation).

2
The facts are based on evidence presented at the preliminary hearing, the
stipulations of counsel regarding the factual basis for the plea at the change of plea
hearing, the probation report, and the police report (a copy of which was attached to the
opposition to defendant’s section 1016.5 motion).
2
 Defendant was assisted by a Spanish-language interpreter at the change of plea
hearing. When the court took the plea, the following discussion ensued regarding the
immigration consequences of the plea:
“THE COURT: Okay. Mr. Guezzetta [sic (defense counsel)], have you discussed
with your client the fact that or, I should say, if he’s not a citizen of the United States that
conviction of the offense for which he has been charged may have the consequences of
deportation from[,] exclusion from admission to[,] or denial of naturalization pursuant to
the laws of the United States?
“MR. GUZZETTA: I have, Your Honor.
“THE COURT: Mr. Padilla[,] have you discussed that with your attorney?
“THE DEFENDANT: Yes.”
The court also asked defendant, “Has anyone made any promises to you, sir, other
than as in connection with what I just said about the negotiated disposition in this case?”
Defendant responded, “No.”
In October 1999, defendant was sentenced in accordance with the plea agreement.
The court granted three years’ probation on the condition that defendant serve 10 months
in county jail. The court imposed fines and fees and ordered defendant to participate in a
substance abuse program.

Section 1016.5 Motion to Vacate Judgment and Withdraw the Plea

In February 2013, more than 13 years after defendant entered his plea, he was
stopped by immigration authorities at Mineta San José International Airport as he
returned from a trip to México. He was detained for his 1999 conviction for possession
of cocaine for sale, charged with violating section 212, subdivision (a)(2)(A)(i)(II) of the
Immigration and Nationality Act (violating a state law relating to a controlled

3
substance),3 and placed in immigration custody. On April 24, 2013, the Immigration
Court notified defendant that his case was scheduled for removal proceedings on June 13,
2013.
On May 21, 2013, defendant filed a motion pursuant to section 1016.5 to vacate
his 1999 judgment of conviction on the ground that he was not properly advised of the
immigration consequences of his plea. He asked the court to rule on the motion before
his June 13, 2013 hearing in Immigration Court.
In a declaration in support of the motion, defendant stated that at the preliminary
hearing in May 1999, he told his public defender he was a lawful permanent resident; that
his counsel discussed the charges with him, but not the immigration consequences of a
conviction; and that the judge offered him a “10-month deal” and told him he would not
be deported.4 Defendant also declared that after the preliminary hearing, his counsel told
him he could no longer represent him and advised him to retain private counsel. He
therefore hired Rudy Guzzetta as defense counsel.5 Defendant declared that Guzzetta
“promised that he would get the charges dropped or, in the alternative, knock down the
felony charges to a misdemeanor.” Defendant said he “wanted to go to trial because [he]
was innocent of possessing drugs for sale” and he told Guzzetta he was a lawful
permanent resident. He also declared that “Guzzetta did not advise [him] of the
immigration consequences” of the charge or “that [his plea] would lead to his

3
Section 212 of the Immigration and Nationality Act is codified at 8 U.S.C.
§ 1182.
4
There is no evidence of the judge’s alleged comment about deportation in the
record. At the change of plea hearing on August 23, 1999, the trial judge commented that
another judge had “offered ten months” during settlement discussions on August 13,
1999.
5
According to the clerk’s transcript, after the information was filed, defendant
was represented by a different public defender who appeared six times between May 17
and July 30, 1999. That attorney was relieved on July 30, 1999, when private counsel
Guzzetta made his first appearance in this matter.
4
deportation.” Defendant declared that Guzzetta instead told him the offer “was a good
deal because the immigration [sic] would not deport” him, that he relied on Guzzetta’s
and the court’s statements that he would not be deported when he pleaded no contest, and
that if he had known that his conviction would lead to deportation, he “would not have
pled [sic] and would have gone to trial.”
In his points and authorities, defendant argued that the court did not properly
advise him of the immigration consequences of his plea because it gave the legally
required advisement to defense counsel instead of directly to him, and because the court’s
question to him (asking whether he had “discussed that” with his attorney) was
ambiguous.
The prosecution opposed the motion, arguing that defendant was properly advised
of the immigration consequences of his plea. The prosecution contended that even if
defendant was misadvised by counsel, the trial court “clearly and unequivocally” advised
defendant of the three possible immigration consequences of the plea, and that at the
hearing, defendant did not tell the court that he had received contrary advice from
anyone. The prosecution also asserted that if there was error, defendant had not shown
that he was prejudiced.
The trial court found that “a sufficient advisement [was] given at the time
[defendant] entered his no contest plea” and denied the motion. The court stated, “ ‘The
advisement need not be in the statutory language, and substantial compliance is all that is
required, “as long as the defendant is specifically advised of all three separate
immigration consequences of [the] plea.” ’ ” The court rejected defendant’s contention
that the advisement was insufficient because it was stated in the form of a question to
defendant’s counsel rather than directed to defendant himself, stating, “It would elevate
form over substance to conclude that the . . . colloquy did not advise defendant of the
immigration consequences.” The court also rejected defendant’s contention that the
question “have you discussed that with your attorney?” was ambiguous.
5
 DISCUSSION

General Principles Regarding Section 1016.5 Motions to Vacate

Section 1016.5, subdivision (a) “requires a trial court, before accepting a plea of
guilty or no contest, 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 . . . .’ ”6
(People v. Arriaga (2014) 58 Cal.4th 950, 957 (Arriaga).) “The defendant is then
entitled to ‘additional time to 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 (Martinez), citing § 1016.5, subds. (b), (d).)
“Section 1016.5, subdivision (d) states the Legislature’s purpose and intent in
enacting that section: ‘The Legislature finds and declares that in many instances
involving an individual who is not a citizen of the United States . . . , 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

6
Section 1016.5 provides in part: “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 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.”
6
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.’ ” (Martinez, supra, 57 Cal.4th at pp. 561-562, quoting
§ 1016.5, subd. (d).)
Section 1016.5, subdivision (b) “provides a remedy for a noncitizen defendant
who is not advised of these consequences: ‘If . . . the court fails to advise the defendant
as required by this section and the defendant shows that conviction of the offense to
which [the] 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 . . . the court, on [the] 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.’ ” (Arriaga, supra, 58 Cal.4th at p. 957.)
To prevail on a section 1016.5 motion, a defendant must establish three elements:
“(1) that the advisements were not given; (2) that the conviction may result in adverse
immigration consequences; and (3) that the defendant would not have pled guilty or no
contest had proper advisements been given.” (Arriaga, 58 Cal.4th at pp. 957-958, citing
Martinez, supra, 57 Cal.4th at pp. 558-559.)7
7
Regarding the third element, although section 1016.5 does not expressly recite
that a defendant seeking relief for a failure to advise must establish prejudice, in People
v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 (Zamudio) the Supreme
Court construed section 1016.5 “to require that defendants, in order to obtain relief under
subdivision (b) of the statute, demonstrate they were prejudiced by any failure of the
court to provide complete advisements under subdivision (a).” The court adopted the test
for prejudice established in People v. Watson (1956) 46 Cal.2d 818, 836, as applied to a
7
Standard of Review

We review an order denying a section 1016.5 motion to vacate the judgment for an
abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 191; see also People v. Chien
(2008) 159 Cal.App.4th 1283, 1287 (Chien).) To establish an abuse of discretion,
defendant must show that the court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice. (People v.
Limon (2009) 179 Cal.App.4th 1514, 1518 (Limon).) “ ‘Accordingly, we ask whether the
trial court’s findings of fact are supported by substantial evidence, whether its rulings of
law are correct, and whether its application of the law to the facts was neither arbitrary
nor capricious.’ ” (People v. Clancey (2013) 56 Cal.4th 562, 578 quoting People v.
Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.) To determine if a court
abused its discretion, we must thus consider “the legal principles and policies that should
have guided the court’s actions.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)

Defendant’s Contentions

Defendant contends the trial court abused its discretion when it concluded that he
had not established the first element for section 1016.5 relief—i.e., that the immigration
advisements were not given. He argues that (1) the advisements were given in the form
of a question directed to his counsel instead of directly to him, and (2) the court’s follow-
up question directed to him (defendant) was vague. He also contends the trial court erred
in not considering evidence that his counsel was ineffective because his counsel’s
ineffectiveness was relevant to his (defendant’s) understanding of the advisement. In
addition, he argues that he had established the second and third elements required for
section 1016.5 relief.

failure to advise of the consequences of a plea, explaining the defendant must establish
“ ‘it is “reasonably probable” the defendant would not have pleaded guilty if properly
advised.’ ” (Zamudio, at p. 210.)
8
The Trial Court Substantially Complied with Section 1016.5

Section 1016.5 does not mandate a verbatim recitation of the statute, so long as
substantial compliance is achieved and the defendant is advised of all three possible
immigration consequences set forth in section 1016.5. (Zamudio, supra, 23 Cal.4th at p.
208; People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174 (Gutierrez).) In Zamudio,
the defendant was not advised of the possibility of “exclusion from admission to the
United States” (§ 1016.5, subd. (a)), but was advised of the other two immigration
consequences: deportation and denial of naturalization. (Zamudio, at p. 207.) In that
situation, the Supreme Court recognized that if the defendant’s circumstances, at the time
of his original plea, did not actually allow for the possibility of the consequence of
exclusion from the United States, “the advisements he received concerning deportation
and naturalization would have been in substantial compliance with the requirements of
section 1016.5.” (Id. at p. 208.)
Other cases have held that trial courts need only substantially comply with the
advisement requirement under section 1016.5. In Gutierrez, supra, 106 Cal.App.4th 169,
the prosecutor (rather than the court) gave the advisement and told the defendant: “ ‘If
you are not a United States citizen, you will be deported from the United States, denied
re-entry and denied amnesty or naturalization. [¶] Mr. Gutierrez, do you understand
that?’ [The defendant] answered, ‘Yes.’ ” (Id. at p. 171.) The defendant appealed,
arguing in part that the prosecutor’s advisement failed to accurately track the language of
section 1016.5, since the prosecutor used the phrase “denied re-entry” instead of the
phrase “ ‘exclusion from admission.’ ” (Gutierrez, at p. 173.) The appellate court
rejected this argument: “only substantial compliance is required under section 1016.5 as
long as the defendant is specifically advised of all three separate immigration
consequences of his plea.” (Id. at p. 174.) The court observed that the defendant in that
case “was expressly told that one of the immigration consequences of his conviction was

9
that he would be denied reentry into the United States; in other words, under the statute,
he would be excluded from the United States. The trial court, thus, substantially
complied with the statute, and, hence, committed no error in the manner in which it took
appellant’s plea.” (Ibid.)
People v. Ramirez (1999) 71 Cal.App.4th 519 (Ramirez) is in accord. That case
held that the trial court had complied with the requirements of section 1016.5 when the
required advisements were contained in a written plea form rather than given orally by
the trial judge. When the trial court took the plea, it failed to advise the defendant orally
of the immigration consequences of his plea. But the defendant had signed a change of
plea form that “warned of all three possible [immigration] consequences in precise
statutory language.” (Id. at p. 523.) The appellate court rejected Ramirez’s contention
that section 1016.5 requires the court to orally advise a defendant of the immigration
consequences of his plea. (Id. at pp. 521-522.) The court explained that “there is no
language in the statute requiring [oral] advisements by the court. . . . [T]he legislative
purpose of section 1016.5 is to ensure a defendant is advised of the immigration
consequences of his plea and given an opportunity to consider them. So long as 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, the legislative purpose of section 1016.5 is met.” (Id. at
p. 522; see also Limon, supra, 179 Cal.App.4th at p. 1518 [omission of a single non-
substantive word (“hereby”) from statutory language did not render advisement
ineffective]; People v. Quesada (1991) 230 Cal.App.3d 525, 535-536, superseded by
statute on another ground as stated in People v. Totari (2003) 111 Cal.App.4th 1202,
1206-1207, fn. 5 [§ 1016.5 advisement may be given by anyone acting on behalf of the
court, “including the judge, counsel, the court reporter, or the clerk”; it is common
practice for the prosecutor or defense counsel to give the advisement; advisement need
10
not be given orally and may be recited in plea form if “the defendant and his counsel are
questioned concerning the form to ensure that defendant actually reads and understands
it”].)
Most recently, in Arriaga, our Supreme Court concluded that substantial evidence
supported the trial court’s finding on a section 1016.5 motion “that [the] defendant was
told of the immigration consequences” of his plea where the advisements were given by
the prosecutor rather than the trial court. (Arriaga, supra, 58 Cal.4th at pp. 963-964.) In
Arriaga, there was no reporter’s transcript of the defendant’s 1986 plea hearing, and the
minute order did not set forth the actual advisements given. The parties agreed that
section 1016.5, subdivision (b)’s presumption of nonadvisement8 applied and that the
presumption was rebuttable. (Id. at p. 956.) The Supreme Court held that the
prosecution had rebutted that presumption with the testimony of the former prosecutor
who had handled the 1986 hearing. That prosecutor testified that although he did not
recall the defendant, “it was his practice to always advise defendants of the immigration
consequences of pleading guilty or no contest, as required by section 1016.5” and
“recited in detail his oft-given advisement of immigration consequences.” (Id. at pp. 963-
964.) The court held that “[t]his testimony, coupled with the checked box on the minute
order . . . , which indicated, ‘Defendant advised of possible effects of plea on any alien or
citizenship/probation or parole status,’ support[ed] the trial court’s finding that [the]
defendant was told of the immigration consequences of pleading guilty.” (Id. at p. 964.)
With these cases in mind, we hold that the advisement defendant received in this
case in 1999 substantially complied with section 1016.5. The trial court asked defense
counsel, “have you discussed with your client the fact that . . . if he’s not a citizen of the
United States that conviction of the offense for which he has been charged may have the

8
Section 1016.5, subdivision (b) provides in relevant part: “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.”
11
consequences of deportation from[,] exclusion from admission to[,] or denial of
naturalization pursuant to the laws of the United States?” The trial court’s main deviance
from the statutory language was that rather than direct the statement to the defendant, the
judge asked a question of defense counsel. But after defense counsel answered
affirmatively, the court followed up and asked defendant directly, “have you discussed
that with your attorney?” (Italics added.) Defendant argues the court’s follow-up
question to him was vague, since the trial court did not define what it meant by “that.”
He contends he understood it to mean the conversation he had with his counsel before the
court took the plea in which his counsel told him he would not be deported.
The advisement of the immigration consequences of the plea was the very first
advisement the trial court gave in the plea colloquy. Thus, there is no possibility that
defendant could have understood the court’s reference to a discussion of “that” to refer to
any other advisement or statement by the court. Defendant had just heard the court ask
defense counsel whether he had discussed with defendant the fact that a conviction “may
have consequences of deportation . . . , exclusion . . . , or denial of naturalization.” There
is nothing else the court’s follow-up question to defendant could have referred to. We
agree with the trial court that it would elevate form over substance to conclude that the
colloquy at issue did not advise defendant of the immigration consequences of his plea.
That the court’s advisement may have contradicted advice defense counsel may have
separately given defendant outside of the court’s presence does not mean the court failed
to advise of the immigration consequences of the plea. If the advisement contradicted
what counsel said, defendant should have asked for additional time to consider the
consequences of his plea, which is expressly provided for by section 1016.5.9

9
Defendant also contends the trial court erred when it excluded evidence of
ineffective assistance by defense counsel Guzzetta because that evidence was relevant to
explain defendant’s “understanding of the word, [sic] ‘that’ used by the trial court.” But
the court did not exclude the evidence defendant submitted regarding alleged ineffective
assistance by Guzzetta or his record of discipline after the plea was taken in this case.
12
 We note that the court failed to specifically state that the immigration
consequences included “exclusion from admission to the United States.” However, we
do not believe the lack of reference to “the United States” rendered the advisement
unacceptably vague. The advisement given to the defendant in Gutierrez similarly lacked
a specific reference to the United States, yet was still determined to be in substantial
compliance. (Gutierrez, supra, 106 Cal.App.4th at p. 171.)
For these reasons, we hold that the court’s advisement of the immigration
consequences in this case, in the form of a question to defense counsel, followed by a
follow-up question directed to defendant, substantially complied with the requirements of
section 1016.5. Since we determine that the advisement was adequate, we need not reach
the questions of whether defendant established the other elements of his claim (i.e., that
his conviction may result in adverse immigration consequences or that he would not have
pleaded no contest had proper advisements been given). Since we conclude that the trial
court properly admonished defendant regarding the possible immigration consequences
of his plea in 1999, we hold that the trial court did not abuse its discretion in 2013 when it
denied defendant’s section 1016.5 motion to vacate the judgment and to withdraw his
plea.

The court’s order acknowledged defendant’s contention and correctly held that
“[i]neffective assistance by his attorney, however, should be addressed through a
different procedural device than a motion pursuant to . . . section 1016.5.” (People v.
Kim (2009) 45 Cal.4th 1078, 1107-1108, fn. 20 [claim that trial counsel “was somehow
ineffective is not a wrong encompassed by” section 1016.5], citing Chien, supra,
159 Cal.App.4th 1283 [ineffectiveness of counsel claim is not cognizable in section
1016.5 motion].)
13
 DISPOSITION

The trial court’s order denying defendant’s section 1016.5 motion to vacate the
judgment and to withdraw his plea is affirmed.

_______________________________
Márquez, J.

WE CONCUR:

_____________________________________
Rushing, P. J.

______________________________________
Premo, J.

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