P. v. Sicarios CA4/3

Filed 4/16/13 P. v. Sicarios CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046587

v. (Super. Ct. No. C-80761)

RAUL MENDOZA SICARIOS, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Craig E. Robison, Judge. Appeal dismissed; appeal treated as petition for writ of mandate and denied. Law Offices of Natalio Pereira, Natalio Pereira and Robert Kasenow, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Raul Mendoza Sicarios appeals from a postjudgment order denying his Penal Code section 1016.5 (all further statutory references are to this code unless otherwise stated) motion to vacate his 1990 conviction following his guilty plea to possessing cocaine for sale. He contends he was not adequately advised of the immigration consequences of his plea as required by section 1016.5. We dismiss the appeal due to defendant‟s failure to obtain a certificate of probable cause but grant his request to treat the appeal as a petition for writ of mandate and deny the petition.

FACTS

A native and citizen of Mexico, defendant entered the Unites States in 1980. In 1990, he pleaded guilty to possessing cocaine for sale on a preprinted Tahl form. (In re Tahl (1969) 1 Cal.3d 122.) He initialed the box that states, “I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” He also initialed the box that states, “I have personally initialed each of the above boxes and discussed them with my attorney,” as well as the box signed by his trial counsel stating he “explained each of the above rights to the defendant” and “stipulate[s] this document may be received by the court as evidence of defendant‟s intelligent waiver of these rights and that it shall be filed by the clerk as a permanent record of that waiver. . . .” The Tahl form and minute order indicate an interpreter, Alba Jones, was present and “sworn to interpret. in Spanish.” The court‟s minute order also indicates defendant was advised of the “conseq[.] of plea if not a citizen.” In exchange for the plea, defendant received three years of probation with 90 days of local custody time. Defendant obtained lawful permanent resident status in 2010 only to have it revoked because of his guilty plea. He moved to withdraw his plea, asserting he did not