People v. Flores

[486]

Opinion

AULT, J.

Antonio Banales Flores appeals from the judgment of conviction entered on á plea of guilty after his motion to withdraw the plea had been denied. A certificate of probable cause has been filed pursuant to Penal Code section 1237.5. He contends his guilty plea was neither voluntarily nor intelligently made since he had not been advised that entry of such plea and conviction would result in his deportation under federal law.

In April 1972 Flores and others were indicted on four marijuana charges: sale (Health & Saf. Code, § 11531), possession for sale (Health & Saf. Code, § 11530.5), possession (Health & Saf. Code, § 11530) and conspiracy to sell (Health & Saf. Code, § 11531 and Pen. Code, § 182, subd. 1). The possession and conspiracy charges were later dismissed on motion of the People.

On September 19 Flores, while represented by counsel, entered a guilty plea pursuant to a plea bargain. He pled to possession of marijuana for sale, stipulated to be a lesser included offense in the offense of selling marijuana.

Before accepting the plea, the court fully advised Flores of his constitutional rights concerning jury trial, confrontation and self-incrimination and then received his personal waiver of such rights. The court also advised him of the possible prison term which could be imposed under the law. In response to questions by the court, Flores testified he had assisted his codefendant Martinez in selling marijuana and was pleading guilty freely and voluntarily, as he had previously declared under penalty of perjury, with the concurrence of his counsel, in a change of plea form. The court did not mention deportation as a consequence of the plea, and there is nothing in the record to indicate the court was then even aware that Flores was a resident alien.

Before the probation hearing, Flores retained new counsel and immediately moved to withdraw his guilty plea on the ground he had not fully understood the consequences of his plea in that no one had told him he would be deported.

On January 2, 1973, the matter came before the same judge who had accepted the plea. On advice of counsel, Flores declined to testify after the deputy district attorney warned he might be prosecuted for perjury if he should contradict what he told the court on the previous occasion. His first attorney testified he was aware Flores was a resident alien and had