People v. Moreno CA5

Filed 2/27/13 P. v. Moreno 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F063711 Plaintiff and Respondent, (Super. Ct. No. 482591-5) v.

JAIME PINEDA MORENO, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Roger K. Litman, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jennevee H. De Guzman, Deputy Attorneys General for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Poochigian, J.

Appellant, Jaime Pineda Moreno, appeals from the trial court’s denial of his petition, pursuant to Penal Code section 1016.5,1 to vacate his 1993 conviction in case No. 482591-5 for sale of marijuana (Health & Saf. Code, § 11360, subd. (a)). He contends he was not adequately advised of the immigration consequences of his plea as required by section 1016.5.2 We conclude that a motion to vacate a judgment for failure to give the section 1016.5 advisements is an attack on the validity of the plea. As such, an appeal from the denial of such a motion requires the defendant to obtain a certificate of probable cause from the trial court in compliance with section 1237.5. Because appellant did not obtain the requisite certificate of probable cause, we dismiss the appeal. PROCEDURAL BACKGROUND3 On March 22, 1993, Moreno pled guilty to sale of marijuana. On July 1, 2011, Moreno filed a section 1016.5 motion to vacate the judgment on the grounds that he had

1 All further statutory references are to the Penal Code, unless otherwise indicated. 2 Section 1016.5 provides in part: “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. [¶] (b) ... If ... the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.”