People v. Rodriguez CA6

Filed 9/26/14 P. v. Rodriguez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039414 (Monterey County Plaintiff and Respondent, Super. Ct. No. MK970039)

v.

MARIO YEPEZ RODRIGUEZ,

Defendant and Appellant.

Defendant Mario Yepez Rodriguez challenges the denial of his motion to vacate 1 his 1997 conviction under Penal Code section 1016.5, which included his suggestion that the court dismiss his prior conviction under section 1385. The superior court found that defendant had been properly advised of the immigration consequences of his 1997 plea, and it declined defendant’s section 1385 “suggestion.” Defendant claims that both rulings were erroneous, but we find no error in the superior court’s denial of defendant’s motion.

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

I. Background Defendant was arrested on March 29, 1997 for felony possession of a controlled substance (cocaine) (Health & Saf. Code, § 11350), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and misdemeanor being a minor on premises where alcohol is sold (Bus. & Prof. Code, § 25665). On March 31, 1997, he was arraigned and charged by complaint with those three offenses. At the arraignment, defendant pleaded guilty to the felony count, and the two misdemeanor counts were dismissed under section 1385. Defendant orally stated on the record that he understood the “waiver of rights form” that he had signed that day. The “waiver of rights” form (waiver form) bore defendant’s initials next to each paragraph and his signature at the bottom. The space for the identification of the offense to which defendant was pleading had been left blank, but the waiver form stated that defendant understood that the maximum sentence for the offense was “3 years.” Defendant had initialed the paragraph that read: “I understand that if I am not a citizen of the United States a plea of ‘Guilty/No Contest’ could result in deportation, exclusion from admission to this country, and/or denial of naturalization.” The superior court judge accepted his plea and signed the waiver form. Defendant was granted deferred entry of judgment (DEJ) diversion in June 1997. In June 1998, defendant’s 1997 conviction was dismissed under section 1385 after he completed a diversion program. Defendant became a lawful permanent resident of the United States in 2003. He suffered a second cocaine possession conviction in October 2003. That conviction was dismissed after he again completed DEJ diversion. In March 2012, removal proceedings were initiated against defendant based on his two convictions. In December 2012, defendant filed a motion to vacate his 1997 conviction under section 1016.5, subdivision (b) on the ground that he had not been properly advised of the immigration consequences of his plea. He alternatively asked the court to dismiss his