People v. Araujo

Filed 1/7/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261602 (Super. Ct. No. 2013026418) Plaintiff and Respondent, (Ventura County)

v.

CIRILA VERASTEGUI ARAUJO,

Defendant and Appellant.

In an all-to-familiar ploy, Cirila Verastegui Araujo seeks to avoid a consequence of her criminal conduct, i.e. deportation from the United States of America. She appeals an order denying a post-judgment motion to vacate her conviction by guilty 1 plea to first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a).) She claims that the trial court failed to properly advise her of the immigration consequences of the conviction when the change of plea was entered. (§ 1016.5.) The appeal is not only without merit, it borders on being frivolous. We affirm. In 2013, appellant, represented by counsel, pled guilty to first degree residential burglary with the understanding that she would be granted probation with 365 days county jail. The trial court dismissed a robbery charge as part of the negotiated disposition. It was a favorable negotiated disposition because appellant was facing a

1 All statutory references are to the Penal Code.

possible six year prison sentence. The change of plea was pursuant to a "Felony Disposition Statement" signed by appellant. Under the section entitled "CONSEQUENCES OF PLEA AND ALL ADMISSIONS - ALL CASES," appellant initialed the following paragraph: "If I am not a citizen, I could be deported, excluded from the United States or denied naturalization. (Pen. Code, § 1016.5.) If I am not a citizen and am pleading guilty to an aggravated felony, conspiracy, a controlled substance offense, a firearm offense, or under certain circumstances a moral turpitude offense, or a domestic violence offense, I will be deported, excluded from the United States and denied naturalization. (8 U.S.C. §§ 1101 (a) (43), 1182, 1227.) " When the change of plea was entered on November 15, 2013, appellant acknowledged that Spanish interpreter read the entire "felony disposition statement" to her in the Spanish language. She also acknowledged that she had discussed the change of plea with her attorney and understood and agreed with what was stated on the change of plea form. The trial court factually found that appellant understood the consequences of entering the plea and that the change of plea was knowing, intelligent, free, and voluntary. On December 17, 2013, the trial court read and considered the probation 2 report which indicated that appellant was subject to an immigration hold. The trial court suspended imposition of sentence and granted three years supervised probation with 365 days county jail. Appellant received 233 days presentence custody credit. On October 28, 2014, appellant retained new counsel, Zulu Ali, and filed a motion to vacate the conviction on the theory that she was not advised of the consequences of deportation when the change of plea was entered. Counsel argued that the change of plea form was not signed by the Spanish interpreter and "[t]hat leads me to believe . . . that [appellant] was not properly advised when she filled out this