People v. Chacon CA1/5

Filed 4/3/14 P. v. Chacon CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A138801 v. ISAIAS CHACON, (Contra Costa County Super. Ct. No. 011525591) Defendant and Appellant.

Isaias Chacon pleaded guilty to one count of felony possession of cocaine salt (Health & Saf. Code, § 11350, subd. (a)). He was granted deferred entry of judgment and ordered to attend a drug program pursuant to Penal Code section 1000 et seq.1 Chacon successfully completed the drug program and the court dismissed the criminal

1 Unless otherwise noted, all further statutory references are to the Penal Code. “Sections 1000.1 and 1000.2 provide that, in appropriate cases, the court can accept a guilty or no contest plea but defer entry of the judgment of conviction pending the defendant’s attempt to successfully complete a drug rehabilitation program. (§ 1000.1, subd. (b) [‘If the court determines that it is appropriate, the court shall grant deferred entry of judgment if the defendant pleads guilty to the charge or charges and waives time for the pronouncement of judgment’].) If the defendant successfully completes the assigned program, ‘the criminal charge or charges shall be dismissed’ (§ 1000.3, 4th par.), in which case no judgment of conviction will be entered into the record and, with limited exceptions, the defendant need never reveal she was even arrested, let alone that she was charged with a felony, pleaded guilty, and was granted a deferred entry of judgment. (§ 1000.4.) . . . If the defendant’s attempt at rehabilitation is unsuccessful, however, ‘the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code.’ (§ 1000.3, 3d par.)” (People v. Mazurette (2001) 24 Cal.4th 789, 793.)

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proceedings, pursuant to section 1000.3. Allegedly as a consequence of this arrest and notwithstanding section 1000.1, subdivision (d)’s provision that “[a] defendant’s plea of guilty pursuant to this chapter shall not constitute a conviction for any purpose unless a judgment of guilty is entered pursuant to Section 1000.3,” Chacon was taken into immigration custody and placed in deportation proceedings. Chacon appeals, asking us to review the trial court’s order denying his motion to vacate or withdraw his plea. He contends that the motion should have been granted because his attorney misadvised him of the immigration consequences of his plea. We dismiss the appeal. I. FACTUAL AND PROCEDURAL BACKGROUND According to the probation officer’s report, on December 4, 2010, a Pleasant Hill police officer was speaking to Chacon as part of an automobile collision investigation when Chacon opened his wallet and a small, clear plastic baggie containing a white powdery substance fell to the ground. Chacon, who is a Mexican citizen, admitted that the bag contained cocaine. Forensic testing confirmed the substance was 0.2 grams of cocaine salt. Chacon was charged, by complaint, with felony possession of a controlled substance (cocaine salt). (Health & Saf. Code, § 11350, subd. (a).) At his arraignment, Chacon pleaded not guilty. However, he later entered a guilty plea, in exchange for a grant of deferred entry of judgment. The Honorable William Kolin accepted Chacon’s plea, granted deferred entry of judgment, ordered Chacon to attend a drug program, and suspended criminal proceedings. Chacon’s signed and initialed plea form provided: “Federal law provides for mandatory deportation for certain crimes. I understand that if I am not a citizen of the United States, I have the right to contact a diplomatic or consular representative of my country, and conviction of a crime could result in my deportation, denial of my re-entry to the United States and denial of my application for citizenship. [¶] . . . [¶] Except for what is promised to me in open court ON THE RECORD I have not