P. v. Denys CA6

Filed 5/23/13 P. v. Denys CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038212 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C9929139, C9928517)

v.

JOAQUIN GUSTAVO DENYS,

Defendant and Appellant.

Defendant Joaquin Gustavo Denys appeals from the trial court’s order denying his motion to vacate judgment. In 1999, defendant pleaded nolo contendere to two counts of possession for sale of marijuana (Health & Saf. Code, § 11359) and one count of possession for sale of methamphetamine (id. § 11378). Defendant argues that he was not sufficiently advised of the immigration consequences of his plea pursuant to Penal Code section 1016.5.1 For the reasons set forth below, we find that the trial court that took defendant’s plea adequately and substantially complied with the requirements of section 1016.5, and we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Defendant’s Personal Background Defendant was born in El Salvador. When defendant was a child, his father worked for the El Salvadoran government transporting soldiers to and from battle during the government’s war against the guerillas. In May 1981, defendant and his family fled 1 Further unspecified statutory references are to the Penal Code.

to Mexico due to the ongoing violence. The family briefly returned to El Salvador in October 1981. In December 1981, defendant and his family lawfully immigrated from El Salvador to the United States. Defendant has a daughter who is a citizen of the United States by birth. His mother is a naturalized citizen, and his father remains a lawful permanent resident. Defendant has returned to El Salvador for visits, each of which have not lasted more than 15 days. The Underlying Offenses On May 4, 1999, two San Jose Police Department officers stopped a vehicle driven by defendant for failing to come to a complete stop at a stop sign. The officers discovered that defendant’s passenger was on probation for narcotics transportation, and conducted a search of the vehicle after defendant gave his consent. Defendant then gave officers consent to search his person, and was discovered to be in possession of marijuana. Defendant was arrested and transported to the San Jose preprocessing center where he was strip searched. There, officers found a white bag containing methamphetamine on defendant. On May 12, 1999, the officers obtained a search warrant for the residence to which the vehicle was registered. At the residence, officers found marijuana in the master bedroom where defendant resided, a pay-owe sheet, and a total of $4,100 in cash on defendant and in two locations in the master bedroom. The police report indicated that defendant, out of his own volition, told officers that the marijuana belonged to him. The Plea Defendant entered a plea of no contest to two counts of possession for sale of marijuana (Health & Saf. Code, § 11359) and a count of possession for sale of methamphetamine (id. § 11378) on June 17, 1999.2 Defendant further admitted the 2 Defendant pleaded no contest in two cases that were ultimately consolidated. In case No. C9928517, defendant pleaded nolo contendere to a count of possession for sale (continued) 2