People v. Rodriguez CA5

California Court of Appeal May 10, 2016 No. F070947Unpublished

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Holding. The trial court did not abuse its discretion in denying the defendant's motion to vacate his conviction because the written plea form provided the required statutory immigration advisements, and the court's subsequent oral inquiry was sufficient to establish the defendant's understanding of those consequences.

Issues

Whether the trial court abused its discretion by denying a motion to vacate a conviction based on an allegedly incomplete oral immigration advisement.
Whether a written plea form containing the required statutory advisements satisfies the requirements of Penal Code section 1016.5 when the oral advisement is incomplete.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The advisements required by section 1016.5 may be given in a validly executed plea form rather than orally by the court.”

“We conclude the trial court substantially complied with the advisement requirements of section 1016.5. The court did not abuse its discretion when it denied defendant’s motion to vacate the judgment.”

Filed 5/10/16 P. v. Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F070947 Plaintiff and Respondent, (Fresno Super. Ct. No. CF02671582) v.

OCIEL HERNANDEZ RODRIGUEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Don Penner, Judge. Jacob M. Weisberg for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Poochigian, J. and Peña, J.

Defendant Ociel Hernandez Rodriguez was convicted by guilty plea of possession of methamphetamine (Health & Saf. Code, § 11378). The trial court sentenced him to 16 months in prison. The court denied defendant’s motion to vacate his conviction pursuant to Penal Code section 1016.5.1 On appeal, defendant contends the trial court abused its discretion in doing so because it had failed to give a complete and accurate oral admonition regarding the immigration consequences of his plea. We affirm. FACTS On November 7, 2002, defendant signed a felony advisement, waiver of rights, and plea form, which included a section entitled “CONSEQUENCES OF PLEA OF GUILTY OR NO CONTEST.” One of those consequences stated:

“2. If I am not a citizen my change of plea could result in my deportation, exclusion from admission to the United States, and/or a denial of naturalization. Deportation is mandatory for some offenses. I have fully discussed this matter with my attorney and understand the serious immigration consequences of my plea.” (Emphasis original.) Defendant initialed the box that followed this statement and signed the form, attesting that he had read, understood, and initialed each item on the form and that everything on the form was true and correct. Defense counsel, Lourdes Arellano, signed the form, attesting that she had discussed and explained the consequences of the plea with defendant. At the change of plea hearing on the same day, substitute counsel appeared for defense counsel. The following occurred:

People v. Rodriguez CA5

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