People v. Diaz CA2/6

Filed 1/27/16 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262592 (Super. Ct. No. 1296253) Plaintiff and Respondent, (Santa Barbara County)

v.

OSVALDO DIAZ,

Defendant and Appellant.

Osvaldo Diaz appeals the denial of his post-judgment motion to vacate a 1 2009 conviction for possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)) and transportation of methamphetamine for personal use (Health & Saf. Code, § 11379, subd. (a)). Appellant contends that he was not properly advised of the immigration consequences of the conviction when the change of plea was entered. (§ 1016.5.) We affirm. Procedural History In 2009, appellant was charged with possession for sale of methamphetamine, possession of a deadly weapon, battery, theft, and possession of methamphetamine for personal use. Pursuant to a negotiated plea, appellant pled no contest to possession of a deadly weapon and transportation of methamphetamine in

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

exchange for three years probation. It was a highly favorable plea because appellant was facing a maximum sentence of four years state prison if convicted. Before the change of plea was entered, appellant signed a "Waiver of Constitutional Rights and Plea" form. Under the section entitled "CONSEQUENCES OF MY PLEA OF GUILTY/NO CONTEST" appellant initialed the following paragraph: "If I am not a citizen of the United States, I understand that the law concerning the effect of my conviction of a criminal offense of any kind on my legal status as a non-citizen will change from time to time. I hereby expressly assume that my plea of GUILTY/NO CONTEST in this case will, now or later, result in my deportation, exclusion from admission or readmission to the United States, and denial of naturalization and citizenship." Appellant signed a second paragraph acknowledging that "[m]y attorney . . . has gone over this form with me. I have read and understand this form. I understand the pleas and admissions I am entering, the consequences thereof and the constitutional rights I am waiving." Appellant's trial attorney signed a paragraph stating that he "explained the direct and indirect consequences of this plea to the [appellant] and I am satisfied that [appellant] understands them. . . . I personally went over this document with the defendant." On May 27, 2009, the trial court found that the change of plea was knowing, intelligent, free, and voluntary. The court suspended imposition of sentence and granted three years probation. On August 7, 2014, appellant filed a motion to vacate the conviction on the ground that he was not advised "that pleading guilty to the criminal charge at issue would subject me to mandatory deportation." Denying the motion, the court found that appellant was advised in writing pursuant to section 1016.5 before the change of plea was entered. Discussion The Attorney General argues that the motion to vacate the plea is untimely. We agree. A motion to vacate a plea due to lack of advisement under section 1016.5 must be brought within a reasonable time. (People v. Superior Court (Zamudio) (2002)