People v. Ordonez CA2/2

Filed 9/16/14 P. v. Ordonez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B248483

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA006975) v.

LUIS ORDONEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Gregory A. Dohi, Judge. Affirmed.

Law Office of Eduardo A. Paredes and Eduardo A. Paredes for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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Luis Ordonez (Ordonez) appeals from the denial of his statutory and nonstatutory motions to vacate his guilty plea to the charge of attempted second degree robbery (Pen. Code, §§ 211, 664).1 We find no error and affirm. FACTS In 1991, Ordonez was charged with second degree robbery. After the prosecutor amended the information to add a second count for attempted second degree robbery, Ordonez pleaded guilty to that count. The trial court sentenced him to 132 days in jail and three years probation. On February 4, 2013, Ordonez filed a motion to vacate his plea on the grounds that he was not given the mandatory advisement under section 1016.5, subdivision (a) that his plea might have adverse immigration consequences. He offered no evidence to support his claim that he was not advised by the trial court. Rather, he claimed that because he could not obtain a reporter’s transcript of the plea hearing, there was no evidence to the contrary. To prove the unavailability of a reporter’s transcript, he provided a letter from the superior court stating that the court reporter’s notes had been destroyed. In the alternative, Ordonez made a nonstatutory motion to vacate his plea based on ineffective assistance of counsel, citing Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). He claimed, at least impliedly, that his attorney failed to inform him that a conviction of a crime of moral turpitude within five years of his admission to the United States in 1987 would make him removable under the Immigration and Nationality Act. At the hearing on the motion, the trial court indicated that it had the transcript from the June 25, 1991, hearing at which Ordonez entered his plea, and the transcript showed that Ordonez received the proper advisements. The trial court showed the transcript to defense counsel, who had no objection. Afterwards, the trial court stated, “Since the proper advisements were given, a [section] 1016.5 motion doesn’t lie.” Continuing on, the trial court rejected the nonstatutory motion based on Padilla on the grounds that it was not permissible, adding, “The sad fact of the matter is there really is