People v. Martinez CA2/8

Filed 2/27/13 P. v. Martinez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B239550

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA120779) v.

AGUSTINE MARTINEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Leland H. Tipton, Judge. Affirmed.

Karlin & Karlin, and Marc A. Karlin for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

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Agustine Martinez appeals from the trial court’s denial of his motion to withdraw his guilty plea. Martinez, who is not a United States citizen, asserts on appeal that he received ineffective assistance of counsel because he was not advised of the immigration consequences of his guilty plea. We affirm the trial court’s ruling. FACTS In a felony complaint dated July 19, 2011, Martinez was charged with one count of oral copulation/sexual penetration of a child under 10 and three counts of committing a lewd act upon a child. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a).)1 Martinez was appointed a public defender and pled not guilty during the arraignment on July 19, 2011. He subsequently retained private counsel and changed his plea to no contest as to one count of committing a lewd act upon a child in exchange for a sentence of eight years in state prison. He signed an advisement of rights, waiver and plea form, which also required that he initial beside the warning that his “plea of guilty or no contest will result in . . . deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.” This form was translated to Spanish by the court interpreter for him. He was also advised of the immigration consequences of his plea orally by the trial court. As a result, the trial court found that the waivers, including the one regarding the immigration consequences of his plea, were made “knowingly, understandingly, and explicitly made.” Martinez moved to withdraw his plea on January 13, 2012, on the ground that he failed to understand the immigration consequences of his plea at the time he made it. In a supporting declaration, Martinez stated: “4. I am making this request to withdraw my no contest plea because I was not aware, at the time of making said plea, that the plea would mean I would be ineligible to stay in the United States without any type of immigration relief. I entered this no contest plea without an understanding of what would happen to me.