The People v. Oliva CA2/2

Filed 9/5/13 P. v. Oliva CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B244050

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA077421) v.

HECTOR ORLANDO OLIVA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge. Affirmed.

Kiran Nair, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent. __________________

In an information filed by the Los Angeles District Attorney, defendant and appellant Hector Orlando Oliva was charged with possession for sale of cocaine base (count I; Health & Saf. Code, § 11351.5), possession for sale of a controlled substance (count II; Health & Saf. Code, § 11351), and possession for sale of a controlled substance (count III; Health & Saf. Code, § 11378). On November 8, 2010, appellant waived his rights and pursuant to a plea agreement, he pleaded nolo contendere to count I. He was placed on three years of formal probation as to count I, with the condition that he serve 120 days in county jail. He was given 90 days of custody credits, which included 45 days of actual custody and 45 days of good time/work time. The trial court further ordered him to pay a $40 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $150 drug program fee (Health & Saf. Code, § 11372.7), a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a $200 suspended parole revocation fine (Pen. Code, § 1202.46). Counts II and III were dismissed pursuant to the plea agreement. On October 17, 2011, appellant filed a motion to vacate his plea. On November 1, 2011, appellant filed a subsequent motion to vacate his plea. On November 10, 2011, appellant’s motions were denied. On June 22, 2012, appellant filed a motion to dismiss his conviction, pursuant to Penal Code section 1385. That motion was denied as well. Appellant then filed a notice of appeal and a request for a certificate of probable cause. On August 27, 2012, the request for a certificate of probable cause was denied. On appeal, appellant argues that the trial court’s denial of his postconviction motion made pursuant to Penal Code section 1385 was erroneous. Specifically, he contends that the trial court should have granted his request to testify at the postconviction motion hearing regarding what advice, if any, he received from his trial counsel about the immigration consequences of his plea. We find no abuse of discretion. Accordingly, we affirm.