Filed 6/23/16 P. v. Reyes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063226
v. (Super.Ct.No. RIF1305688)
ARMANDO EMMANUEL OPINION
CERVANTES REYES,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven G. Counelis,
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, Julie L. Garland, Assistant Attorney General, Barry Carlton, Deputy Attorney
General, for Plaintiff and Respondent.
Defendant and appellant Armando Emmanuel Cervantes Reyes appeals from the
trial court’s ruling denying his motion to vacate his 2013 conviction for drug possession.
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In 2014, defendant moved to vacate the conviction on the ground that the trial court did
not ensure that he was adequately advised of the immigration consequences of his guilty
plea, as provided for in Penal Code section 1016.5.1 For the reasons discussed below, we
affirm the court’s ruling.
PROCEDURAL HISTORY
On August 7, 2013, defendant pled guilty to one count of possessing a controlled
substance, specifically androisoxazole. (Health & Saf. Code, § 11377, subd. (a).)
Section B.4. on the printed plea form, under the heading “Consequences of Plea,” states:
“If I am not a citizen of the United States, I understand that this conviction 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.” Defendant initialed the line
provided next to that section.
At the end of the plea form, defendant signed and wrote the date under the
statement “I have read and understand this entire document. I waive and give up all of
the rights that I have initialed. I accept this Plea Agreement.” Defense counsel also
signed and dated the plea form under the statement “I am the attorney for the defendant.
I am satisfied that (1) the defendant understands his/her constitutional rights and
understand that a guilty plea would be a waiver of these rights; (2) the defendant has had
an adequate opportunity to discuss his/her case with me, including any defenses he/she
1 All further statutory references are to the Penal Code unless otherwise indicated.
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might have to the charges; and (3) the defendant understands the consequences of his/her
guilty plea. I join in the decision of the defendant to enter a guilty plea.”
A reporter’s transcript of the plea hearing shows the trial court asked defendant,
“Did you review with your counsel your legal rights on the form I have here,” to which
defendant replied, “Yes, sir.” The court then asked defendant, “Are those your initials
and signatures on the form,” to which defendant answered, “Yes, your Honor.” The court
then stated, “The court finds a factual basis. Finds the plea is freely, voluntarily, and
knowingly given. The waiver of rights are knowing and intelligent. He understands the
nature of the charges and the consequences.” The court then placed defendant on four
years of probation and ordered him to serve 179 days in jail, with credit for 89 days.
In December 2014, defendant filed a motion to reopen his case and vacate his
conviction on the ground that the trial court did not ensure that he was adequately warned
before pleading guilty that the conviction may result in deportation. The People filed its
opposition on January 14, 2015. The trial court heard the motion on January 26, 2015.
The court denied the motion based on the plea form, specifically pointing to defendant’s
initials next to the immigration consequences advisement, and both defendant’s and
defense counsel’s signatures at the end of the plea form.
Defendant appealed.
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DISCUSSION
Defendant argues the trial court erred when it determined that the court that took
his guilty plea ensured he was adequately advised of the immigration consequences of the
guilty plea.
Under section 1016.5, a defendant can obtain relief if he or she “demonstrate[s]
that (1) the court taking the plea failed to advise the defendant of the immigration
consequences as provided by section 1016.5, (2) as a consequence of conviction, the
defendant actually faces one or more of the statutorily specified immigration
consequences, and (3) the defendant was prejudiced by the court’s failure to provide
complete advisements.” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287, citing
People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200; People v. Totari
(2002) 28 Cal.4th 876, 884.) As discussed below, we agree with the trial court that
defendant did not met his burden to demonstrate that the trial court that took his plea
failed to comply with section 1016.5.
Section 1016.5, subdivision (a), requires the following admonishment be given to
any defendant entering a guilty plea: “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.”
The court is not necessarily required to provide the above warning orally.
However, it must appear on the record, and it must be given by the court. (People v.
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Gutierrez (2003) 106 Cal.App.4th 169, 175; People v. Ramirez (1999) 71 Cal.App.4th
519, 521-522; People v. Quesada (1991) 230 Cal.App.3d 525, 536; cf. People v.
Panizzon (1996) 13 Cal.4th 68, 83 [trial court “may rely upon a defendant’s validly
executed waiver form as a proper substitute for a personal admonishment” with respect to
losing right to appeal a sentence after pleading no contest].)
“[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. [Citation.]”
(People v. Ramirez, supra, 71 Cal.App.4th at p. 522.) “Nor need the statutory
admonition be given orally. It is sufficient if, as here, the advice is recited in a plea form
and the defendant and his counsel are questioned concerning that form to ensure that
defendant actually reads and understands it.” (People v. Quesada, supra, 230 Cal.App.3d
at p. 536.)
A trial court’s ruling on a section 1016.5 motion will withstand appellate review
unless the record shows a clear abuse of discretion. (People v. Superior Court
(Zamudio), supra, 23 Cal.4th at p. 192.) In properly applying the standard of review, an
appellate court must uphold the trial court’s reasonable inferences and resolution of
factual conflicts if supported by substantial evidence, viewed in the light most favorable
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to the ruling, and must also accept the court’s credibility determinations. (People v.
Quesada, supra, 230 Cal.App.3d at p. 533.) The trial court’s inferences and conclusions
here are supported by substantial evidence.
The advisement required by section 1016.5 is included in section B.4. of the plea
form, as quoted above. Defendant placed his initials in the space provided next to that
advisement. In addition, defendant signed at the end of the plea form to indicate that he
had read and understood the document, and defendant’s trial counsel signed the attorney
statement providing that defendant had an opportunity to discuss the case with her and
understood the consequences of the plea. Finally, the record transcript of the plea hearing
shows that defendant answered “Yes” when the court inquired as to whether he reviewed
the plea form with his counsel and whether his initials and signatures on the form were
authentic. These answers and defendant’s signatures and initials on the plea form are the
basis of the court’s finding that defendant understood the consequences of his plea.
In accordance with the case law discussed above, we conclude from this record
that the trial court did not abuse its discretion when it denied defendant’s motion to
vacate, and its ruling is supported by substantial evidence. The plea form strongly
indicates that defendant was advised of and understood the immigration consequences of
his plea, and the record transcript shows the trial judge inquired of defendant and was
assured that defendant understood the consequences of the plea. The judgment is
affirmed.
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DISPOSITION
The court’s order denying the motion to vacate is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
SLOUGH
J.
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