People v. Gomez CA4/1
D069602
Cal. Ct. App.Aug 17, 2016Background
- In 1995 Armando Gomez pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code § 11378) and DUI; four other charges were dismissed.
- Gomez initialed a written change-of-plea form that included the statutory immigration advisement and his attorney signed a declaration that he read and explained the form.
- In 2015 Gomez moved under Penal Code § 1016.5 to withdraw his 1995 plea, claiming he had not been advised orally or by counsel of immigration consequences and would not have pled guilty if he had known.
- At the hearing former counsel testified he customarily read and explained plea forms and immigration consequences to clients; Gomez testified he did not recall being so advised and said he wouldn’t have pleaded if he had understood the deportation risk.
- The trial court denied the § 1016.5 motion, finding Gomez had been advised (based on the form and counsel’s testimony) and thus suffered no prejudice; the court’s finding was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gomez is entitled to withdraw his plea under § 1016.5 for lack of advisement of immigration consequences | The People argued any oral-advisement omission was not prejudicial because the plea form and counsel’s practice show Gomez was advised | Gomez argued he was not actually advised or did not understand the immigration consequences and would not have pleaded if he had known | Court held substantial evidence supports finding Gomez was advised and aware, so no prejudice; denial of § 1016.5 motion affirmed |
| Whether § 1016.5 requires advising of mandatory deportation (not just possible consequences) | People argued statute requires only the limited advisement of possible consequences | Gomez argued he should have been told of mandatory deportation consequences | Court held § 1016.5 does not require advisement of mandatory deportation; argument forfeited and also without merit |
| Whether Padilla v. Kentucky requires broader advisements from the court under § 1016.5 | People argued Padilla (ineffective assistance context) is inapplicable to a statutory § 1016.5 motion and to convictions final before Padilla | Gomez relied on Padilla to argue counsel/court should have given more specific warnings about deportation | Court held Padilla does not alter the statutory duty under § 1016.5; Padilla’s ineffective-assistance rule is distinct and Chaidez limits Padilla’s retroactivity |
| Whether the revised San Diego plea form (2011) creates a greater statutory duty on courts | People argued revised local form merely provides additional information to counsel and defendants but does not alter state law | Gomez argued the expanded form shows courts should advise more specifically about aggravated-felony deportation | Court held the local form does not change statutory obligations; argument forfeited because not raised below |
Key Cases Cited
- People v. Totari, 28 Cal.4th 876 (establishes elements for relief under § 1016.5)
- People v. Arendtsz, 247 Cal.App.4th 613 (Padilla’s ineffective-assistance rule distinct from § 1016.5 duties)
- People v. Araujo, 243 Cal.App.4th 759 (prejudice requirement: would not have pleaded but for nonadvisement)
- People v. Zamudio, 23 Cal.4th 183 (standard of review and prejudice inquiry)
- Padilla v. Kentucky, 559 U.S. 356 (ineffective-assistance standard for counsel’s immigration advice)
- Chaidez v. United States, 133 S.Ct. 1103 (limits Padilla’s retroactivity)
- People v. Mbaabu, 213 Cal.App.4th 1139 (§ 1016.5 requires advising only that conviction may have immigration consequences)