People v. Martinez CA5

California Court of Appeal Jul 10, 2024 No. F087204Unpublished

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Holding. The court affirmed the denial of the defendant's motion to vacate his conviction under Penal Code section 1473.7, concluding that the defendant failed to prove by a preponderance of the evidence that he did not understand the immigration consequences of his plea.

Issues

Did the defendant meet his burden of proving he did not meaningfully understand the immigration consequences of his plea under Penal Code section 1473.7?
Did the trial court's express advisement regarding deportation preclude the defendant's claim of lack of understanding?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court gave an express, unambiguous advisement that defendant would be subject to deportation as a convicted felon if he pleaded guilty.”

“we conclude that defendant did not establish by a preponderance of evidence that he did not understand the immigration consequences of the plea that led to his conviction and sentence.”

Filed 7/10/24 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F087204 Plaintiff and Respondent, (Super. Ct. No. 08CM0370HTA) v.

ALBERTO JORGE MARTINEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kings County. Robert Shane Burns, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Peña, J., and Snauffer, J.

In February 2008, the Kings County District Attorney charged appellant and defendant Alberto Jorge Martinez with transportation/sale of methamphetamine (count 1; Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (count 2; Health & Saf. Code, § 11377, subd. (a)), false identification to a peace officer (count 3; Pen. Code, § 148.9, subd. (a)), possession of drug paraphernalia (count 4; Health & Saf. Code, § 11364), driving with a suspended or revoked license (count 5; Veh. Code, § 14601.1, subd. (a)), driving without a license (count 6; Veh. Code, § 12500, subd. (a).) Pursuant to a plea deal, defendant was convicted of counts 1 and 3 pursuant to a plea. The court sentenced him to concurrent terms of 180 days in jail and two years in prison.1 On September 5, 2023, defendant filed a motion to vacate his conviction pursuant to Penal Code section 1473.7.2 The court denied the motion on multiple grounds. First, the court concluded that because the motion asserted ineffective assistance by original defense counsel, said counsel was entitled to notice which had not been provided. Second, defendant failed to carry his burden of proving he was unaware of the immigration consequences of his plea. Finally, the court concluded defendant was not diligent in pursuing the motion. Defendant appeals the denial of his motion. FACTS On February 25, 2008, defendant pleaded guilty to counts 1 and 3 in exchange for dismissal of the other charges. The plea occurred two weeks after the filing of the complaint. Defendant’s attorney was present, as was a Spanish interpreter. The court

People v. Martinez CA5

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