People v. Leyva CA2/2

Filed 5/17/16 P. v. Leyva CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B264595

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA076703) v.

FERNANDO RIVERA LEYVA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Lloyd M. Nash, Judge. Affirmed.

Law Office of Zulu Abdullah Ali, Zulu Abdullah Ali and Mohammad Iranmanesh, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent. __________________

In a felony complaint filed by the Los Angeles County District Attorney, defendant and appellant Fernando Rivera Leyva was charged with assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a),1 and the allegation that he personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Appellant pleaded no contest to the charge and the enhancement was stricken as a result. The trial court sentenced appellant to three years of formal probation. Later, appellant filed a motion to vacate his conviction on the grounds that he was not properly advised of the immigration consequences of his plea. The trial court denied the motion. Appellant timely filed a notice of appeal and a request for a certificate of probable cause. The trial court denied his request for a certificate of probable cause. On appeal, appellant argues that pursuant to Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the Judicial Recommendation against Deportation (JRAD), and the legislative intent behind section 1016.5, he was not properly advised of the immigration consequences of his plea. We affirm. PROCEDURAL BACKGROUND2 On October 1, 2013, appellant pled no contest to assault with a deadly weapon. The minute order reflecting appellant’s plea provides, in relevant part: “If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” On September 9, 2014, appellant filed a motion to vacate his conviction on the grounds that he was not properly advised of the immigration consequences of his plea. In support, he filed a declaration in which he claimed that he was not informed that “pleading guilty to the criminal charges in question would subject [him] to mandatory