People v. Gastelum CA2/6

Filed 12/16/14 P. v. Gastelum CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B252270 (Super. Ct. No. GA017073) Plaintiff and Respondent, (Los Angeles County)

v.

JESUS MEZA GASTELUM,

Defendant and Appellant.

Jesus Meza Gastelum appeals an order denying his motion to vacate his nolo contendere plea to possession of marijuana for sale. (Health & Saf. Code, § 11359.) Gastelum claimed that when he entered his 1994 plea, he was not properly advised about the immigration consequences. We conclude, among other things, that: 1) the trial court erred by considering the private immigration advice given by Gastelum's public defender in deciding whether Gastelum received the immigration consequences advisement required by Penal Code section 1016.5,1 but 2) Gastelum did not meet his burden to show if properly advised he would not have pled no contest, and 3) the trial court's finding that his motion was unreasonably delayed is supported by the record. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated.

FACTS In March 1994, Gastelum pled no contest to possession of marijuana for sale - a felony. There is no reporter's transcript of that proceeding. He was placed on three years' probation on condition that he serve 180 days in county jail. Gastelum is not a United States citizen. In May 1994, the United States Immigration and Naturalization Service (INS) issued him an immigrant visa in El Paso, Texas. Gastelum successfully completed probation. In 1999, upon his application, the trial court allowed him to enter a not guilty plea and dismissed the charge pursuant to section 1203.4. The conviction was consequently "expunged from his record," but this has "no effect on the federal immigration consequences of his conviction." (People v. Martinez (2013) 57 Cal.4th 555, 560.) In 2013, Gastelum filed a motion to vacate his 1994 no contest plea "pursuant to California Penal Code § 1016.5." He claimed he was not properly advised of the immigration consequences of that plea. He attached an INS letter dated August 30, 1994, indicating that because of his 1994 conviction he was subject to deportation as a non-citizen. In 1996, he was denied permission to enter the United States. Gastelum also attached handwritten notes that his counsel obtained from the public defender who represented him in 1994. In her opposition, the prosecutor said the public defender's notes show: 1) he advised Gasteleum that he "could be excluded or deported," and 2) Gastelum responded that he would "take his chances [with] immigration." The trial court denied the motion. It considered Gastelum's trial counsel's 1994 notes about private immigration advice in deciding whether Gastelum received the immigration consequences advisement required by section 1016.5. The court said, "His attorney advised him of the consequences in the notes." It said the motion was also "way too late." It said,"[H]e waits 19 years later when everything is destroyed and all we have is a dummy file."