*1 S073031. June 2000. No. PEOPLE, Petitioner,
THE COUNTY, JOAQUIN Rеspondent; THE SUPERIOR COURT OF SAN ZAMUDIO, in Interest. JOSE FRANCISCO Real Party *5 Counsel H. Holmes and David District Attorney, Craig
John D. Phillips, Wellenbrock, for Chief District Petitioner. Attorneys, Deputy No appearance Respondent. Court, Haltom, for Real Party Supreme
Victor S. under appointment in Interest.
Opinion Jose Francisco WERDEGAR, Defendant and real interest party advised, no felony when contest pleading Zamudio was (Veh. consent of a vehicle without owner’s taking unlawful driving Code, 10851), might that conviction of that offense § States citizen- naturalizing of his or barred from United being deported being also result in his but he was not advised the conviction might ship, Code, (a)).1 (Pen. subd. country excluded from admission this motion, the him to withdraw his 1992 permitted defendant’s Upon (Id., for trial. and reset the matter vacated conviction judgment plea, denied that the (b).) summarily We conclude Court Appeal, relief, intent thereby legislative for writ contravened the People’s petition the Court we reverse the decision of Accordingly, 1016.5. underlying of Appeal.
Background *6 the charged arrested and with about defendant was August On or Code, 10851) (Veh. a and or vehicle driving § felony taking unlawfully the 496). in (§ Petitioner filed a complaint with stolen receiving property Stockton Judicial District the of San Joaquin, Court for Municipal County (hereafter the 1992 prosecution). court him and others next the advised day,
At arraignment defendant’s and are States citizens you “If not United who were you appearing: are to the Penal Code. 1Undesignated section references are of a or a could be cause convicted misdemeanor it used to felony, your or to The United States obtaining citizenship.”2 deportation prevent your that, court in or left the did not advise defendant the event were deported him a conviction have further country, might consequence excluding to the readmission United States. later, two weeks at the time set for the hear- Approximately preliminary defendant, settlement, to a entered of no ing, negotiated a pursuant plea contest to the the court dismissed the vehicle-taking charge, whereupon stolen defendant charge receiving plea property. During colloquy, various to trial expressly gave constitutional his up rights, including right As to advised jury. immigration consequences, court defendant: “If States, not a citizen of the of no result you’re United contest can in plea naturalization, or in a your deportation refusal or at a citizenship amnesty later in time.” The court failed advise defendant that a point again conviction from his also result in his exclusion from resulting plea might admission to United States. Defendant was sentenced to eight serve months in and on five county jail placed years’ probation. later,
Just under five in defendant and years May was arrested Code, in the same charged (Veh. 10851), court with taking vehicle § Cоde, (Veh. under the influence alcohol driving 23152), or and drugs unlawful and of a possession transportation sale controlled substance Code, (Health 11379) (hereafter & Saf. An 1997 prosecution). §§ order to show cause defendant’s violation of also was alleging probation filed. files,
A settlement was negotiated both defendant encompassing with in the admitting probation violation and no prosecution pleading contest to of a controlled possession substance and under influ- driving ence (with a in prior) the 1997 The court prosecution. defendant gave advisements, various some including The court immigration.3 relating violation, sentenced him to two in state on the years prison probation the sentence reducing with various credits to 90 actual time and days’ to remain granting his permission county jail pending pregnant wife’s birth. In consideration of defendant’s no contest to giving pleading below, 2The record “the Legislature consistent with intent of the of the at the time required no defendant be legal shall to disclose his or her to the status court” (d)), however, immigration does not reveal precise appear, defendant’s status. As will defendant, hold, record placed reveals on whom federal authorities of the citizen United States. 3The trial denied motion pleas prosecution, defendant’s to vacate in the his Thus, party sought neither review of that denial. delivered adequacy advisements *7 prosecution the 1997 is not before us. (for he to and the influence was sentenced under driving possession no and on counts remaining additional time informal placed probation) were dismissed. to
In motion seeking March defendant filed section 1016.5 vacate had his in the that he been improperly 1992 prosecution, alleging In about the immigration consequences. advised possible support, (hereafter the Yun submitted his sworn declaration immigration attorney’s convictions, Declaration) criminal his including that defendant’s cumulative 10851,4 he Vehicle created the convictions under Code possibility would suffer adverse immigration consequences.5 motion, the court denied to request
At the on the petitioner’s hearing an on the hearing questions make an offer of and for proof evidentiary no contest to vehicle taking whether defendant would have pleaded advised, and actual knowl- had he been when defendant acquired properly of his of the adverse edge immigration consequences plea. duces petitioner
The court also ruled on the tecum validity subpoena of certain files relating had served on the defender for the contents public had a to receive defendant. Determining right petitioner to the issues immigration information defender’s files relating public motion, the court conducted an in raised defendant’s section 1016.5 review the files determine if contained such informa- they camera review, the files contained “abso- tion. After its the court ruled conducting this case other than a federal nothing” relating showing lutely had hold on defendant in connection with immigration authorities placed which, all present (including fact with apparently, 1997 prosecution, defendant) for and were familiar. already counsel petitioner motion, reinstating The trial court defendant’s section granted answer, held to in the Defendant was original complaint prosecution. receiving stolen taking and an information him with vehicle charging to both were charges was filed. Defendant’s pleas guilty property set trial. taken and matter for conviction, a misdemeanor felony 4In in 1990 defendant suffered addition the 1992 Code section 10851.
conviction for violation Vehicle possibility of Yun “Mr. Zamudio faces the specifically, 5More Declaration states: for violations Health and immigration consequences [of] as a result of his convictions adverse Indeed, subject and 23152. and Vehicle Code sections 10851 Safety Code section 11377 alia, offense, (2) to, deportation as a the conviction for narcotics inter result (both involving turpitude theft and the moral vehicle multiple convictions for оffenses involving turpitude purposes of the moral offenses are deemed to be offenses narcotics offense, law), driving prior he has a the drunk since and/or conviction for driving drunk conviction.” *8 We review the Court of denied granted when Appeal summarily petition- er’s relief.6 writ application
Discussion to of Section 1016.5 or provides “[p]rior plea guilty acceptance nolo to crime contendere offense as a under state punishable [no contest] law, law, infractions offenses as court under state the shall except designated administer to advisement on the record the defendant: If following fl[] citizen, are are you not a advised that conviction of the offense you hereby for which have been have the you charged consequences may deportation, States, exclusion from admission to United or denial of naturalization 1016.5, to the (§ (a).) laws of the United States.” subd. pursuant The statute also for a trial court’s failure specifies remedy to administer “If, the mandated advisements. after the court fails to January advise the defendant as this section and the by defendant shows that required conviction of the offense to which defendant or nolo conten- pleaded guilty dere may have for the defendant of exclusion deportation, States, admission the United denial or of naturalizatiоn pursuant States, court, motion, laws of the United on defendant’s shall vacate and judgment the defendant to permit withdraw the or nolo plea guilty contendere, 1016.5, (§ and enter a of not (b).) subd. plea guilty.”
“Absent a record that the court the advisement provided by required” (a), subdivision the defendant is to have “presumed not (Id., case, however, (b).) received” it. subd. In this no presumption that, Defendant and at the necessary. petitioner agree both and arraignment at the time of in the 1992 prosecution, advised expressly defendant about possible consequences leading deportation affecting naturalization to but not did advise him about the citizenship, possible “exclusion from consequence admission the United States” (a)), also as the statute. required review, Dismiss,” year granted 6Almost a after we suggesting defendant filed a “Motion to that, petitioner appealed could vacating the trial court’s order judgment conviction, technically peti- writ review is not available. Even were defendant correct appealability grounds, tioner be denied writ relief on he would have articulated at best an argument supporting actually argument Appeal, result he obtained in the Court of suggesting granted improvidently granted we review of that decision. it We review because appeared “necessary uniformity important questions to sеcure of decision or the settlement of Court, (Cal. 29(a)), nothing law” Rules of rule in defendant’s motion dismissal Accordingly, undermines that determination. defendant’s motion to dismiss is denied. *9 Ruling The Trial Court’s Section 1016.5 A. motion, noted, defendant’s section 1016.5 granted the trial court
As v. Quoting People his a vehicle. taking 1992 conviction vacating Gontiz 1309, 786], the court observed: (1997) 58 1316 Cal.Rptr.2d Cal.App.4th [68 “ of of each expressly the court to warn the defendant ‘The statute requires of his the three distinct possible immigration conviction[] to his I advised him two.” prior plea.’ only several errors in grant- the trial court committed According petitioner, 1016.5 motion. We consider each petitioner’s defendant’s section ing turn, of discretion. the trial court’s for abuse reviewing ruling contentions in 492, 915]; (1998) CaI.Rptr.2d v. Shaw 64 495-496 Cal.App.4th {People [74 (c).) see subd. also § Prejudice
1. requirement granting contends the trial court erred Petitioner first him to demonstrate he was under section 1016.5 without requiring relief at the of his advisement he received time 1992 the prejudiced by incomplete that, in order to on his section 1016.5 Petitioner contends plea. prevail failed, motion, at the time that the trial court defendant must show not exists, at and there the statute by of that to advise him plea, provided motion, time that his conviction of the more than remote possibility or more of the adverse immigration consequences will have one specified that, advised, have (b)), also would not but properly reasons, we agree. no in the first For the following contest pleaded place. a. Statutory language our task is case of statutory in any interpretation,
Initially, “[a]s in context the intent of the Legislature construing determine afresh (1991) XIV 52 (Harris v. Growth Investors Capital the statute.” language 614, 1142, 873].) In such determining P.2d 1159 805 Cal.Rptr. Cal.3d [278 (1990) intent, (Rojo Kliger itself. v. we with the statute language begin 130, is, 65, look first to 373].) P.2d That we 801 Cal.Rptr. 52 Cal.3d 73 [276 meaning. used, their and ordinary them usual the Legislature giving words 74, (1989) Cal.3d 90 v. Court 49 Municipal [260 Santa (C ity Cruz 520, 222].) there no in the language P.2d “If is ambiguity 776 Cal.Rptr. said, statute, it and meant what ‘then the is Legislature presumed ” Bd. (Lennane v. Franchise Tax governs.’ meaning language plain 563, 976].) P.2d “But when (1994) Cal.Rptr.2d 9 Cal.4th [36 examine the context ‘the court ambiguous, statutory language which the the construction that best harmonizes language appears, adopting ” (Calvillo-Silva statute related with statutes.’ Home internally 65].) Cal.4th P.2d Grocery Cal.Rptr.2d “ statute, In ‘the be we must also consider achieved object construing ” (Horwich and the evil to be Court legislation.’ Superior prevented by And, 21 Cal.4th as consistent wherever “we will statute with possible, interpret applicable *10 constitutional and statute.” seeking harmonize Constitution provisions, 575, (California (1976) Finance Housing Elliott 17 Cal.3d 594 Agency 361, 1193], authorities.) 551 P.2d numerous Cal.Rptr. citing [131 terms, whenever, 1, its section 1016.5 “after By applies January 1978, the court fails to advise the defendant and “the as defendant required” shows that conviction of the offense . . may . have the consequences” 1016.5, circumstances, (§ (b).) therein. subd. In such section specified that, motion,” 1016.5 “on defendant’s the court vacate the provides “shall and the the judgment defendant to withdraw of or nolo permit plea guilty contendere, and enter a (Id., (b).) of subd. guilty.” plea
Section 1016.5 contains an the statement of intent express legislative 1016.5, (d).) statute. subd. underlying Legislature The was concerned about the instances an who is not citizen “many involving individual a of United charged States with an offense as a in crime” which “a punishable nolo or contendere is entered plea guilty without defendant knowing a that of such conviction offense for grounds exclusion from deportation, States, admission to the United or denial of naturalization to the pursuant “Therefore,” declared, laws of the (Ibid.) United States.” the Legislature section 1016.5 was enacted “to fairness such accused individuals promote in by requiring such cases that guilty of a or nolo acceptance plea plea contendere be an of the conse- preceded by warning appropriate special (Id., for such a defendant which result from the quences may plea.” (d).)7 1016.5, (d), Partly on the basis of section Courts subdivision some or Appeal engrafted onto expressly impliedly prejudice (d) entirety: 7Section provides, Legislature subdivision in its “The finds and many involving declares that in instances an individual is not a citizen of the United who law, charged guilty States punishable plea with an offense under state or nolo crime knowing contendere is entered without the such defendant that conviction of offense is States, grounds deportation, for exclusion from admission to the United or denial of natural- Therefore, pursuant Legislature ization to the laws of the United States. it is the intent enacting promote by requiring this section to to such individuals in fairness accused such guilty cases that of a or acceptance plea preceded of nolo contendere be may appropriate warning special result from such a plea. Legislature grant It is also the intent of the shall the court such cases negotiate prosecuting defendant a agency reasonable amount of time with the in the event was, in the defendant commonly diligence requirements—most fact, or that he adverse immigration consequences, ignorant potential (See, given. had been would not have advisements pleaded guilty proper (1995) 1617-1622 v. Castaneda e.g., People Cal.App.4th [44 666]; (1995) v. Murillo Cal.App.4th [46 Cal.Rptr.2d 130-132 403]; People Aguilera Cal.App.3d Cal.Rptr.2d Cal.Rptr. use of “shall vacate Legislature’s judg- Defendant suggests se (b) the statute a rule of renders per ment” in section subdivision reversal, to dem- a construction that defendants with requires incompatible “the in a statute is word ‘shall’ onstrate We While disagree. prejudice. Correc- (California deemed mandatory, ‘may’ permissive” ordinarily Cal.4th v. State Personnel Bd. tional Peace Assn. Officers 79]), “a the conse- consider and will not readily that would construction particular follow quences (id. 1147). conclude We an unreasonable legislative purpose” imply does not accord with legislative that defendant’s construction proffered *11 section 1016.5. purpose underlying (b) ex- subdivision observes that section correctly
Defendant a to the of details one requirement relating pressly proof section subdivi- court’s failure to the advisements give required i.e., of to which that conviction the offense (a), sion that the defendant show the have” one or more of or nolo contendere actually “may guilty pleaded hand, the other section adverse On consequences. specified is silent on the reference to thus prejudice contains no express 1016.5 a be inferred. whether such may question requirement “ isolation, but rather read do not construe statutes in Fortunately, ‘we law is the scheme of of which it part reference to entire statute “with every ’ ” (Horwich and retain so the whole be harmоnized effectiveness.” may Court, in 276.) construing 21 Cal.4th at Accordingly, supra, Superior be other guided by with we prejudice, section 1016.5 respect Const., (See, Cal. to that e.g., in the criminal law relating topic. provisions VI, Code, 1404.) VI, 13); (hereafter section Pen. art. article § VI, b. Article section VI, shall be set “No judgment in its entirety:
Article section provides, cause, aside, on the of misdirection new in any ground trial granted, possibility deportation, the of unaware of the or the counsel was defendant defendant’s States, a result or denial of naturalization from to the United exclusion admission no time of the defendant Legislature at the It is further the intent of conviction. legal to the court.” required disclose his or her status shall be evidence, or of the admission or or for error jury, rejection any improper as to matter of or for error as to matter of any any pleading, procedure, unless, evidence, cause, after examination of entire including court shall be of the that the in a error has resulted opinion complained of justice.” miscarriage review, court,
In seeking that the trial in granting petitioner suggested motion, defendant’s section had 1016.5 permitted “vacating judg- VI, ment where there was no article section 13. injustice,” implicating Petitioner out that failure to advise with points compliance section is 1016.5 not one the few errors thаt have been so found VI, as to fundamental be reversible se 13. article section Peti- per despite tioner we must argues construction section mo- prefer requiring 1016.5 vants to demonstrate because prejudice construction would call contrary into question (See statute’s Palermo v. The- constitutionality. Stockton atres, Inc. 32 Cal.2d will not “reach out 1] [court and unnecessarily pronounce enacted upon constitutionality any duly statute”].) VI,
Defendant contends is on article petitioner precluded relying section 13 for the first time on invoked that constitutional appeal, having provision in trial court. Petitioner in- acknowledges having explicitly VI, voked article 13 for the first time in the Court of but Appeal, rather, argues invocation was not a but mere change legal theory, elucidation of one of its that section aspect theory subject defenses. equitable
We need not determine whether first references to petitioner’s express VI, article section 13 in fact echo earlier themes. Defendant’s own authority on the of “theory trial” doctrine notes its is with application “discretionary and, event, court” reviewing in any an subject exception appellate Witkin, reliance on a new “where the (9 issue is one of law alone.” theory (4th 406, 457; id., 407, Cal. 1997) Procedure ed. see also Appeal, р. p. § § 459.) here, The exception as indeed raises a theory applies petitioner’s issue, i.e., our purely legal whether section 1016.5 construing not to require VI, a demonstration of article prejudice might section 13. implicate VI, defendant Substantively, argues article section 13 does not to a apply out, vacation of under section judgment 1016.5. As defendant we points long VI, recognized by amendment which article section “[t]he [former 4V2, VI, to article was added to the constitution was predecessor 13] ‘designed or accorded accused repeal abrogate guarantees persons constitution, of other crime of the same by parts or to overthrow all statutory 196 ” (1926) Hall (People criminal cases.’ v. of and evidence in
rules procedure 451, 859], (1913) v. Cal. People O’Bryan P. quoting Cal. [249 65, 55, of is “miscarriage justice” P. “final test” [holding [130 1042] error,” result of the not whether of the court upon “the opinion appellate notes, first, constitutional].) considering From the defendant error is VI, VI, 41/2) is art. we have (and recognized section 13 former article “[i]t shall be that the or innocence guilt an essential of justice question part in which the substantial rights an orderly legal determined procedure, (People O’Bryan, supra, v. to defendants shall be belonging respected.” him, so error 65.) argues, compromised The court’s in misadvising considered thаt it cannot be to make an informed right his substantial meaning within the “error as to matter of procedure” merely any constitutional provision. VI, misad- article section 13 does not encompass
Petitioner concedes that an jury,” section 1016.5 as a “misdirection of “improper visement under “error matter of any plead- of evidence” an as to admission or rejection VI, insists, however, section 13 does encompass that article Petitioner ing.” an advisements as “error failure to deliver full section 1016.5 trial court’s all because the law regards procedural as to “ matter of procedure” ” v. direct the course proceedings’ (People ‘those rules which legal 681]) without conferring Williamson Cal.App. [26 substantive rights. whether a criminal defendant’s right has considered
No previously advise- receive from the court specified immigration under section 1016.5 to error in implementation on the record is a “matter of procedure,” ments VI, Our previous pronouncements article section 13. subject situation, however, We guidance. repeat- useful analogous provide declared rule advisement compelling have referred the judicially edly as one of “criminal procedure.” direct guilty plea 902, 819 P.2d (1991) 54 Cal.3d 1022 Cal.Rptr.2d v. (People [1 Walker accord, Barella 20 Cal.4th 861]; 37]; (1987) 43 Cal.3d Wright People, 975 P.2d *13 VI, Moreover, 69, 260].) on article section we have relied 729 P.2d Cal.Rptr. of this rule failure to with comply judicial 13 in trial court’s holding “[a] a result reasonably probable if it is reversal criminal procedure requires if he had been have been reached to the defendant would more favorable 495, omitted.) fn. v. at Wright, supra, p. (People advised.” properly Williamson, calls noted, procedural cited both People by parties, As v. “ to bring parties which direct the course proceedings ‘those rules legal ” v. court, are in.’ they brought (People of the court after into course
197 Williamson, 781-782, supra, 134 v. Missouri Cal-App. Kring pp. quoting face, 443, (1882) U.S. 221 S.Ct. its 107 27 L.Ed. On [2 section 1016.5’s courts “administer requirement [specified 1016.5, on (§ (a)) the record to the defendant” subd. before advisements] or nolo contendere would seem to be such rule. accepting guilty course, Of rule legal at issue—that criminal defendants precise pre- or no contest be advise- paring guilty given plead specified immigration ments—is not Section primarily judicial 1016.5 confers origin. important our . rights Legislature accorded in “fairness to . . accused individuals” (d)). But section 1016.5 are substantive rights “ sense of from ‘the flowing to declare what prerogative legislature ” (Gantt . . . acts be (1992) shall unlawful’ Cal.4th Sentry v. Insurance 1 1083, 1093, 874, fn. 680], 6 P.2d Cal.Rptr.2d 824 overruled on another [4 66, 80, v. Ralee point (1998) Green fn. Engineering Co. 19 Cal.4th 6 [78 16, 1046]). deference, cannot 960 P.2d With all Cal.Rptr.2d we appropriate derive, from merely Legislature’s reference to “fairness” in section (d), subdivision intent an that the procedural safeguards mandated be regarded as “essential thereby of a fair trial or due process” element[s] (People (1945) v. 27 11 934]) Cal.2d P.2d so as to Sarazzawski [161 VI, insulate error in them any under article section providing analysis, 13, as as to “error matter of any procedure.”
Furthermore, we are not-persuaded defendant’s under section rights are, nature, their so as to constitute an important “essential part justice” v. 65), Cal. at (People O’Bryan, supra, 165 p. deprivation which must be regarded as Nor do believe a we trial court’s miscarriage. failure to deliver complete 1016.5 advisements ranks “the among that, evidence, kinds of errors regardless result in a ‘miscarriage of justice’ because operate deny criminal defendant a fair they ... trial” v. Cahill (People Cal.4th does,
P.2d 1037]) as “for the denial of the defendant’s to a example, right trial or trial jury (ibid.). (See also impartial judge” v. People Succop 67 Cal.2d Cal.Rptr. 789-790 473] [denial on hearing temporary commitment constituted of substantial deprivation Sarazzawski, right]; Cal.2d at People supra, 27 re denial of [same reasonable motion]; new see Witkin opportunity present generally Error, 3303-3311, (2d & 1989) Cal. Criminal Law ed. Epstein, Reversible §§ pp. 4084-4095 of errors held se reversible notwith- [discussing types per VI, 13].) art. standing Gontiz,
Defendant relies on heavily supra, Cal.App.4th (Gontiz), held that section 1016.5 does not a defendant require moving
198 that his conviction actually relief to show beyond for thereunder prejudice, 1317.) (Gontiz, at supra, p. have adverse immigration consequences. court, (b) contains no that section subdivision noting The Gontiz mandatory the statute for provides reference to prejudice, opined express to the advise- where a court fails give specified vacation judgment ments, the be in the movant danger “limited only by requirement (Gontiz, 1311.) at supra, suffering p. those consequences.” not entirely As far as it we do find goes, reasoning Gontiz should be But did not consider whether section 1016.5 unpersuasive. Gontiz infirmities, not and “cases are in order to avoid state constitutional construed (1969) 1 considered.” v. Gilbert Cal.3d (People authority propositions 475, 482, Obviously, 462 P.2d Cal.Rptr. principle fn. [82 “ambi- court—that criminal statute’s construction invoked Gontiz (Gontiz, supra, in favor of defendant” must be resolved guity constitu- 1318)—cannot at take over paramount Cal.App.4th p. precedence considerations. tional statutory we not decide whether defendant’s state right need
Ultimately, advisements “constitutionally qualified by receive is specified immigration cause’ to examine ‘the entire when of California courts duty appellate affirm the matter of alleged procedure’] any [‘error ” v. Wims (People absent a ‘miscarriage justice’ judgment text quoting Cal.4th 77] [bracketed VI, added]), suggesting as defendant fails to adduce any authority art. 13§ intended to when enacting depart the Legislature, rules, governing that constitutional with- provision, consonant with normal Defend- of a for misadvisement collateral regarding consequences. drawal plea are consid- that immigration generally, ant does not dispute consequences, (Gontiz, supra, criminal conviction. ered “collateral” consequences 1311; at see also Limones Cal.App.3d CaI.App.4th p. 418].) As own authority acknowledges, defendant’s Cal.Rptr. based on misadvisement or omission a motion to vacate plea “[n]ormally to demonstrate that requires of a collateral consequence had he known of consequence.” not have entered into would Walker, at 54 Cal.3d (Gontiz, supra, pp. citing People supra, intended section 1022-1023.) Legislature no indication that the We see as an exception. operate c. Section 1404 hand, of section 1016.5’s other for the entire period
On the error no mistake or before), the has (and provided Legislature existence *15 199 invalid, Code renders the in mandated Penal proceeding by proceeding Thus, (§ 1404.) absent to the defendant’s substantial section prejudice rights. “Neither a from the mode 1404 that: form or provides departure prescribed this Code to or nor an in error or by respect any proceeding, pleading therein, invalid, it it actually mistake renders unless has prejudiced defendant, or tended to his in to a right.” substantial prejudice, respect 1872,
Enacted in its form the in section 1404 is by Legislature present 1851, 29, (Stats. derived from a that entered the code in 1851. ch. provision 601, 279.) We have held section long that 1404 constitutes legislative command that courts technical errors in unless disregard procedure they (See, the substantial of defendants. v. Howard impact rights e.g., People 1132, 268, (1992) 1 Cal.4th 1164-1165 824 P.2d Cal.Rptr.2d [5 1315] 753, record]; re (1946) In Etie Cal.2d stenographic 27 757 [omissions P.2d revocation order to parole ground]; specify [167 203] [failure 179, Durrant (1897) v. Cal. P. 116 challenge [peremptory [48 75] recently, Most we cited 1404 in juror].) concluding section a trial court’s use of an worded form the to record its inaccurately jury finding aon conviction created no defect prior felony allegation in the prejudicial 297, (1998) v. finding. (People Bolin 18 Cal.4th 330-331 [75 P.2d 374].) intends, statute, We do not that the when it enacts a presume Legislature to overthrow such long-established law unless intention is principles clearly (Theodor or expressed necessarily Court implied. Superior Rather, Cal.3d 234].) P.2d we must Cal.Rptr. assume that, when section was aware of enacting Legislature existing related laws and intended to maintain a consistent of rules. body {Fuentes Workers’ Bd. Comp. 16 Cal.3d Appeals Cal.Rptr. There is no indication the enacted section Legislature 1016.5 of, to,
denigration section 1404’s exception general proviso those only errors that procedural defendant’s substantial prejudice rights Moreover, render the criminal invalid. to relief for afford incom- proceeding advisement under section to 1016.5 defendants who demonstrate plete were they prejudiced thereby accords with stated Legislature’s expressly “instances” in addressing are entered “without the purpose pleas (d).) knowing” immigration consequences. reasons, For the and in order avoid whatever constitutional foregoing construction no infirmity contrary engender, we have might difficulty defendants, construing in order obtain relief require statute, (b) under subdivision demonstrate they were prejudiced failure of the court advisements under subdivision provide complete *16 motion, the trial on defendant’s section 1016.5 (a). when Accordingly, ruling consider, formerly whether it case erred in failing court this whether, and as a as section requires failed to advise defendant had he nolo on the offense to which pleaded of his conviction consequence contendere, faces one or more of the statutorily specified defendant actually but also whether defendant was prejudiced immigration consequences, advisements.8 the court’s having incomplete provided reversed, for the trial must therefore be the order of the Although turn now to discussion of petition- the trial court on remand we guidance claims error. er’s other
2. Evidentiary hearing motion, defend- found that In defendant’s court impliedly granting nolo, he had conviction of the offense to which pleaded ant shown that exclusion have the consequences deportation, contendere “may [him] States, or denial of naturalization pursuant admission the United (b)). (Watts States” v. the laws of United Crawford 743, 762, fn. 15 (1995) 10 Cal.4th motion, that, at on the court improperly contends hearing Petitioner whether defendant hearing for a further on evidentiary denied its request so, and, knowledge such if when acquired faces faces he them. did at the on motion
Neither in its nor hearing written opposition defendant, fact, immigration faces adverse potential dispute petitioner Moreover, who drew the court’s attention to it was petitioner consequences.9 defendant “would be on this case stated the fact the 1997 probation report Nevertheless, the court should have now contends petitioner deported.” and defend- cross-examination on whether when live and testimony permitted faced, faced, he risks. ant and knew immigration on belief that show- is argument necessarily premised Petitioner’s (b) is a factual subdivision of defendant under ing required court, took the in the trial he made a factual showing one. While defendant law, him, as matter of his no contest subjected plea position that, therefore, by citing and immigration consequences adverse potential Gontiz, Cal.App.4th People v. People supra, 58 8To the extent Guzman 34], Borja CaI.App.3d 758 and Cal.App.3d CaI.Rptr. 186 [172 conclusion, they disapproved. are this Cal.Rptr. are inconsistent with 287] by way vague conclusory, but not Yun Declaration was and 9Petitioner asserted the immigration potential Attorney that defendant faces adverse disputing Yun’s conclusion rather, filing dilatory in his motion. argued, that defendant was consequences. Petitioner laws, had his to the record of his and relevant carried id., (See 1182(a)(2)(B); burdens under section 1016.5. 8 U.S.C. proof § see Law 1182(a)(2)(A)(i)(I); Kurzban’s Sourcebook generally Immigration Found., 52-53, (Am. 1998) 56.)10 L. 6th ed. Immig. pp. is re- assuming
Even correct that factual petitioner showing we are not the trial court abused its discretion in quired, persuaded denying it, a further on the basis of the record before evidentiary hearing ruling included written submissions. “There is no author- simply parties’ *17 discretion, in for the that a trial court a ity proposition necessarily abuses its motion conflicts live proceeding, resolving without evidentiary hearing (Rosenthal v. tеstimony.” (1996) Great Western Fin. Securities 14 Corp. 394, 875, Cal.4th 414 926 P.2d [58
Petitioner cites no courts to hold live authority specifically requiring or, on evidentiary section 1016.5 motions more hearings on generally, hand, withdrawal motions. On the other California law affords numerous motions, of a trial court’s to examples authority, ruling resolve upon 1050, evidentiary without to disputes resorting (See, live testimony. e.g., § (b) or declarations sufficient to [affidavits motion continu- support ance]; 692, People (1991) v. Cox 53 Cal.3d P.2d 697 809 Cal.Rptr. [280 to conduct live on new trial motion hearing 351] alleging juror [whether misconduct is discretion]; within court’s (1984) Garcia v. Court Superior 156 681-682 on Cal.App.3d [evidentiary Cal.Rptr. hearing 290] [203 motion trial not v. 67 disqualify judge People Eastman required]; Cal.App.2d could rule on [implying properly 37] motion vacate of conviction on affidavits judgment only].) reasons, For the decline to burden a foregoing we trial courts with conduct requirement live on all section they evidentiary hearings The motions. trial court did not err in this regard.
3. Showing conviction have” “may specified consequences that, Petitioner next contends to the is extent it based on Yun Decla- ration, court’s factual defendant faces implied finding actually adverse immigration is his 1992 plea insufficiently Petitioner asserts supported. the Yun Declaration is conclu- “nearly entirely and devoid sory of facts.” People v. Williams Citing Cal.App.3d 1 prоvided entry 0Federal law in “[a]ny alien who at time after is involving of two or turpitude, arising single convicted more crimes moral not of a out scheme misconduct, regardless of criminal regardless of whether confined therefor and whether trial, single deportable.” (Former 1251(a)(2)(A)(ii) were in convictions is § 8 U.S.C.A. (Westlaw 1992); 1227(a)(2)(A)(ii) [current].) Historical 8 U.S.C. U.S.C.A. cf. 324], not Yun Declaration is Cal.Rptr. petitioner argues it hearsay. evidence because is inadmissible
competent silent about what constitutes sufficient showing Section 1016.5 itself is (b). its The decisions to address question under subdivision directly that, (b) subdivision “implies while simply recognize exclusion, need to show more than remote just possibility deportation, Shaw, v. at supra, p. denial of naturalization” (People Cal.App.4th “ the words of 499), there is a sufficient on record from ‘where showing ” Guzman, (ibid., supra, Cal.App. the court itself’ quoting People his 192), the must be to withdraw given opportunity plea. Williams, relies upon petitioner supra, Cal.App.3d Declaration, Williams, the Yun In attacking involving apposite. criminal on dismiss for dilatory prosecution, a motion to hearing charges a trial into evidence the Court of court’s refusal upheld accept Appeal his of resi- defendant’s declaration under about place penalty perjury dence, had take the subjected the defendant refused to stand be noting *18 Williams, (Id. it the 510.) at In was who cross-examination. p. cross-examination; on accordingly, refused to answer material questions his affidavit on his own behalf. trial court could exclude sworn properly Here, contrast, the to answer declaration is that of who refused by party trial, Yun) whose (Attorney but that of a witness merely at questions (Accord, State v. to a motion taken affidavit. by evidence relevant was (Mo. 1977) 344.) S.W.2d Brown Yun Decla- on the of the admissibility we need not
Ultimately, pass than the trial court contained more suffi- ration because record before declaration, from that for court’s implied finding cient support, apart as of the time court might, defendant’s conviction based on his 1992 plea motion, for him have the was defendant’s considering actually consequences States, of the United or denial exclusion from admission to of deportation, 1016.5, (§ (b)). subd. naturalization discussed, at to defendant’s motion and both in its written opposition
As “immigration conceded defendant faced the hearing, petitioner impliedly moreover, court, record of defendant’s possessed The problems.” law, conviction, which, in as a matter his criminal including history, convictions, defendant at risk adverse his earlier combination with put to the from admission including exclusion consequences, immigration (8 of moral U.S.C. turpitude. committed crimes United States for having id., (1992) 20 I. Matter Serna 1182(a)(2)(A)(i)(I); see 1182(a)(2)(B); § I. N. Dec. 272 301779]; 3 & Dec. Matter & N. WL 579 [1992 of M. The record that the trial court WL also reveals possessed that a border hold had been on defend- evidence documentary patrol placed ant federal authorities. defendant,
We conclude that vacate his 1992 conviction moving motion, that, he faced under section showed at the time of the “more exclusion, than a remote or denial naturalization” just possibility deportation, (Pe Shaw, Therefore, 499). at supra, ople Cal.App.4th p. trial court’s of the to which defend- “conviction offense finding implied ant . . . nolo contendere have the the defend- pleaded consequences (§ 1016.5, ant” (b)) in the statute subd. was specified adequately supported. 4. Diligence
Petitioner next contends the trial should have denied defendant’s excuse, section 1016.5 motion on the ground delayed, without bringing however, it. As has no record evidence petitioner emphasized, pinpoints when defendant first knew that he risked actual “exclusion from admission to the United (b)). States” Defendant takes position when he such is irrelevant under the statute. precisely acquired knowledge Pursuant to rule of declared criminal a defend- judicially procedure, ant’s he was right not advised of the collateral complain consequences Walker, absent a guilty is waived timely objection. supra, {People 1022, 1023.) 54 Cаl.3d at More “when the error is pp. specifically, failure to advise of error is plea, [collateral] waived at (Id. 1023.) if not raised or before As we sentencing.” *19 in In re Moser recognized 6 CalAth 342 however, 723], that bar does not the defendant procedural where apply
has no reason to the of (Id. the trial advisement. at court’s question accuracy 352-353, 8.) fn. pp.
We are not the to persuaded was defend- deny required ant’s section motion as The trial court sentenced defendant untimely. on his the vehicle-taking (indeed, conviction at same in almost hearing Thus, the breath) same at which it delivered the defective advisements. plea Moser, unlike as in Walker and case “does not a trial this involve court’s at the of a sentence at imposition sentencing variance with the hearing not, therefore, advice at earlier it “a is situation given plea proceeding”; in which a defendant be to to reasonably may required bring discrepancy (In court’s attention a at the re by timely objection sentencing hearing.” Moser, 8.) at fn. supra, CalAth p. cites, Castaneda,
The authority supra, petitioner Cal.App.4th 1612, stands at most for the that a motion to proposition postjudgment 1619). made diligence” must be with “reasonable
change plea {id. the accuracy evidence that defendant had cause long ago question Absent advisements, to he should have trial court’s hold 1992 immigration accords to them earlier would be unfair. This conclusion with objected 1016.5, contains no time bar. of section plain language its extent defense of laches or To the relies on affirmative petitioner the facts that comprising the burden is equivalent, petitioner’s prove 500; Code, Medical (Evid. see also Miller v. Eisenhower Center defense. 258].) Petitioner (1980) 27 Cal.3d 614 P.2d Cal.Rptr. became aware possible there is “no indication as to when defendant states he knew in that 1990” suggesting only “presumably immigration problems,” in another he received some advisements that immigration year, because in defendant’s having see no significance case. We present purposes The some advisements in mandated advisement received 1990. (a)) “the for which have been charged” refers to offense you or have been advised—adequately no other. Defendant cannot a no he contest would plea otherwise—about possible him that same brought year. enter in 1992 criminal charges against defendant, that when was advised Petitioner notes also pleading have, might his about some the adverse immigration consequences be his deportation that his conviction “could used” cause specifically, that But advising his United States prevent obtaining citizenship. cannot a no in the аbstract have immigration consequences, contest plea may circumstances, that, be him on notice to his owing particular taken placing so, such. it the second he faces an actual risk Were suffering i.e., conviction (b)’s showings, subdivision express required Put would be another superfluous. “may consequences” specified, is a defendant’s relief under section 1016.5 way, predicated upon have” one or more specified his conviction demonstrating “may if within timely brought such motion consequences implies have” such time after the conviction actually “may consequences. reasonable out, concerned that the record indicates defendant was As points petitioner his conviction. Defend- follow 1997 immigration consequences might adverse founded, convicted of well as in stood concern then was ant’s *20 offense, and, offenses, as a a consequence, criminal including drug multiple and (see 1227(a)(2)(A)(ii)) 8 U.S.C. was at risk both for deportation § id., as the trial (see 1182(a)(2)(A)(i)). (Indeed, from readmission exclusion § noted, indicate federal files case defender’s on 1997 public defendant.) hold on had placed immigration authorities in the following defendant’s A level of concern on part period similar be as can not been well founded. Deportation would 1992 prosecution 205 instituted the order of the only (8 General” “upon Attorney U.S.C. States, 1227(a)) of the United who retains discretion § not to institute such (See (2d United States v. proceedings. 1973) Santelises Cir. 476 F.2d statute.) examination citing The trial court’s prior defend- public er’s files in the case revealed no hold or immigration other relevant federal such as was found in the activity 1997 files.
Moreover, convicted, the record reveals that in defendant stood of at cumulatively, most one misdemeanor violation of Vehicle Code section (in 1990)11 and one violation of the same felony (in 1992), statute for the a receiving latter sentence of five and years’ probation eight months in While it is jail. defendant was at possible sub- point technically ject or exclusion for deportation “convicted of being two or more crimes (former moral involving turpitude” 125l(a)(2)(A)(ii) 8 U.S.C.A. § (Westlaw 1992) Historical U.S.C.A. see also 8 U.S.C.A. [deportation]; 1182(a)(2)(A)(i)(I) exclusion]), § or [inadmissibility in faced more than a remote of adverse possibility immigration consequences seems unlikely.
First, it is doubtful federal authorities would have regarded defendant’s to misdemeanor plea as vehicle-taking crime of moral involving Then, now, turpitude immigration purposes.12 Vehicle Code section 10851 could be violated by vehicle “with intent taking either to perma- or nently temporarily owner deprive thereof his or her title to or vehicle, possession whether with or without intent to steal the Code, (Veh. vehicle.” Thus, (a), added.) italics “on § its face Vehicle Code section 10851 can be violated either a vehicle by taking with the intent to steal it or by it with the intent driving temporarily its (i.e., owner of deprive possession v. Allen joyriding).” (People Cal.4th Accordingly, “[a] 11The record “Guilty (Misdemeanor)” defendant, contains a Plea Waiver Form signed by recording his no contest April charge violating 1990 to misdemeanor Vehicle Code section defendant, 10851. The waiver form includes a paragraph, initialed states that resulting conviction “could result in deportation or exclusion from admission to country this or amnesty.” denial of adequacy naturalization or The of these advisements was challenged relevant, however, not below and is not before us. Defendant’s 1990 conviction is immigration insofar as the actually any given risks defendant faced depended time on his cumulative criminal record at that time. law, 12In whether a crime is one turpitude of moral does depend on its misdemeanor, felony classification as or a severity or on the punishment allowable or actually imposed. [immigration] “The Immigration courts and the Appeals] fre- [Board quently (3rd cite the given Dictionary 1914) definition in Bouvier’s Law Ed. as ‘an act of baseness, vileness or depravity private in the and social duties which a man owes to his fellow men, society general, сontrary accepted customary right duty to the and rule of ” al., man (Brady between and man.’ et Immigration (Immigrant Legal Cal. Criminal Law and Center, Francisco, 1999) 4-19.) Resource San *21 establish theft under such statute been found insufficient to
conviction ha[d] Act, et for and U.S.C. [Immigration Nationality purposes § 4.8, al., and et Cal. Criminal Law (Brady Immigration, supra, p. seq.].” § 5154]; 4-21, I. (1944) 2 & N. Dec. 22 WL Matter ofT., Matter citing al., 6077]; N. WL see also et Cal. of M., (1946) Brady 21. & Dec. 686 4.10, 4-24.) Criminal at Immigration, supra, Law and p. § Second, federal authorities would have re- even assuming immigration to as crime garded vehicle-taking involving defendant’s 1992 plea felony not the conviction on the would have constituted moral turpitude, thereon, confinement actual eight for as defendant’s grounds deportation, months, (See Law Source- was short. Kurzban’s Immigration so generally book, 110.) supra, p. was, 1992, to even if defendant in
Most significantly, subject depor- tation, have to exclusion necessarily subject he would also been IV, id., (See 1993) 1182(a)(2)(A)(ii); 8 U.S.C. readmission. (supp. § 1182(a)(2)(B).) § sum, court, out in the trial from the
In pointed perspective petitioner worse in defendant’s criminal record was immigration consequences, and, therefore, adverse immi- likely engender than it was in more to Moreover, as it existed in under law gration immigration consequences. in would have been available to defendant earlier remedies years, greater if to than Fоr even it were found example, were available 1997. conviction moral defendant’s misdemeanor vehicle-taking entail turpitude, to a recommen- (based subject on the have been might judicial 1990 plea) 29, 1990), order before Nov. which would (signed dation-against-deportation to based on penalties federal authorities withhold immigration have required if had been placed deportation proceedings that conviction. And defendant to for a waiver might qualified applicable prior April (See narrowed. greatly criminal grounds Congress year deportation al., 4-16 Immigration, supra, pp. et Cal. Criminal Law § Brady laws, id., 4-17; 11-39.) the immigration 11-38 By pp. (See, Heavy- e.g., Holding, much more severe. had become generally, crimes, minor are arrested Legal immigrants being Handed INS Agents, Kravets, 2; 1999) to Pleas Challenge Entailing p. S.F. Chronicle (Sept. stricter retroactive (Mar. 2000) J. S.F. Daily Deportation, [under law, have completed even criminal aliens who misadvised immigration because of unforeseeable often move vacate pleas sentences consequences].) (and the United States citizenship of his here family’s
In view presence country), understandably bom in this of his children status
207 exclusion, advised, about which he was not rather than viewed naturalization, or denial of as the most serious for him among deportation indeed, section 1016.5’s as specified immigration consequences; perhaps one that could affect his calculations regarding advisability no contest to the Defendant was pleading vehicle-taking charges. 1992 but, noted, warned about does not deportation, deportation necessarily And, because he preclude legal reentry. was advised in partly accurately 1992, aware, not have been until the reasonably may immigration file, hold revealed case that one 1997 1992 consequence risk, conviction could be to him at if other convictions place especially followed, of excluded from readmission. being after he was convicted in the on March
Shortly 1997 prosecution, 1998, defendant moved to vacate both the For the pleas. stated, reasons fails to us defendant unreason- petitioner persuade delayed his section ably bringing 1016.5 motion. cannot we conclude Accordingly, the trial court erred in failing motion on timeliness deny grounds.
5. Substantial compliance
Petitioner contends that the trial court erred in failing deny defendant’s section 1016.5 motion on the ground advise- immigration ments defendant received in the 1992 were in substantial com- prosecution with statute. pliance that, that section
Notwithstanding under expressly provides speci- circumstances, fied “the court shall administer the advisement” following (§ (a)) subd. and then details a form of advisemеnt specific, tripartite, (i bid.), some Courts of have held that exact Appeal language “[t]he Limones, advisement is not crucial” (People v. at supra, Cal.App.3d [dictum]; v. p. (1987) Soriano Cal.App.3d [dictum]; 65 A.L.R.4th CaLRptr. People Barocio 705] 99, 105 Cal.App.3d Cal.Rptr. analysis, citing People 573] [without Soriano, here, however, The issue supra]). is not whether the advisements Rather, defendant received were exact. sufficiently defendant complains because, at the critical the mandated juncture, advisement respecting pos- sible “exclusion from admission (a)) to the United States” was omitted. entirely
Section 1016.5 several distinct terms of art from incorporates law. is the “Deportation removal or back of an alien to the sending country (Roseman, which he or she has come . . . .” The Alien and the Guilty Plea: Caveat to the 163.) 12 W. U. L.Rev. “Exclu- St. Defense sion” is barred from “being (Id. to the United States.” fn. entry alien, omitted.) “Naturalization” is eligible through process authorities, the United can become a citizen of States. petition appropriate *23 (Id. 167-168.) at pp. of
Petitioner asserts that defendant’s been advised having possible depor- in tation warned him that would result effectively any reentry consequences removal, of asserts is the “functional exclusion. petitioner equivalent” however, to or Aliens are not automatically indefinitely subject deportation, to An the to also exclusion. alien in United States becomes subject subject to exclusion if some who only actually deported; agree deportable persons at have a voluntary the United States their own available depart expense may (See U.S.C. not exclusion from departure remedy entailing reentry. Moreover, are from 1229c(a).) some barred deported persons reentry § the for a the of which on years, may length vary depending period (See 1182(a)(9)(A)(i) (ii); see circumstances. 8 U.S.C. & generally Sourcebook, 57-58.) Law Kurzban’s Immigration supra, pp. Nevertheless, did if defendant’s circumstances at the time of his 1992 plea not, fact, in allow exclusion from for his possibility subsequent in he he received deported, United States the event were advisements in substantial and naturalization would been concerning deportation of section in that would have they with the compliance requirements his defendant of the to situation. only consequences pertinent informed would have been Because the record does disclose whether defendant readmission, to erred we are unable conclude that the eligible in on of substantial grounds to defendant’s motion failing deny compliance.
6. advisement Subsequent harm caused the trial court’s 1992 by Finally, petitioner argues any defendant, corrected in the course the 1997 misadvisements was when accurate form had violated stating an waiver prosecution, signed plea form asserts that his 1992 Without authority, petitioner probation. “corrects, tunc,” in the nunc error advisements. pro original be sec- cannot reconciled with
Petitioner’s retroactive-correction theory enacting tion itself. It was intent the Legislature 1016.5 “by accused noncitizens criminally requiring 1016.5 to fairness promote be of nolo contendere in such cases of guilty plea plea acceptance for such preceded by appropriate warning special (d), italics result plea.” defendant which fact, and, be added.) would This cannot be served purpose logically thwarted, a rule also Such rule after-the-fact permitting warnings. undermine the intention “that the court in would Legislature’s expressed time such cases shall the defendant a reasonable amount of grant negotiate in the with event defendant or the defendant’s prosecuting agency counsel was unaware of the exclusion from ad- possibility deportation, States, mission to the United or denial of naturalization as a result of (Ibid.) conviction.” at the time of a advisements Obviously, subsequent violation not afford a defendant an would probation opportunity negotiate the terms of his conviction. original discussed,
Most our fundamentally, Legislature sought expressly address in section of a defendant’s problem entering *24 or nolo contendere without about its adverse immi- guilty knowing potential thus, (d).) The gration evil is not consequences. targeted, a defendant’s lack of but his or her lack of simply knowledge, at knowledge a critical Such an evil cannot be corrected specified juncture. of by provision (Cf. information after the critical has required In re juncture passed. 808, (1959) 52 Cal.2d P.2d of right Martinez [345 449] [advisement counsel meant time to ensure defendant is aware “at the he pleads guilty”].) To conclude otherwise would undermine effect the statute any prophylactic have. might
Hence, the trial court did not err in rejecting petitioner’s theory correction of the subsequent advisements. partial
B. Prejudice on Remand Inquiry
Since we have concluded that the trial court erred in that failing require defendant demonstrate in connection with his section prejudice 1016.5 ante, (see 192-200), motion at we must address defendant’s contention pp. that we should affirm the decision of the Court of the record because Appeal was, indeed, before us demonstrates the trial court’s failure prejudiced by to deliver section 1016.5 advisements. Defendant asserts he complete would not in have no contest to vehicle theft had the court pleaded fully advised him of the plea’s potential immigration consequences, including of his excluded from possibility being admission to the United States. As out, alien cannot return points who “loses his his deported job, friends, home, children, his and even his maybe who must choose between their and their (Galvan (1954) native v. Press 347 U.S. [parent] country” 737, 744, Black, (dis. S.Ct. J.)). 98 L.Ed. opn. [74 911]
Petitioner maintains the record does not demonstrate defendant was preju- diced, because defendant had actual relevant may knowledge when, in he entered the To issue. extent, defendant cannot now claim he would have petitioner argues, if been As dis- he had advised differently differently. previously
pleaded cussed, motion, court, defendant’s did not the trial on ruling time to the state defendant’s at the knowledge consider evidence relating there was a strong he entered his Petitioner asserts plea. “very prosecution *25 absence of the error.” would have been reached the appealing party Thus, 243].) “when (1956) 46 Cal.2d (People v. Watson [299 the the the error is a failure to advisd of the of ... consequences plea defendant, the court must whether the error determine sentencing prejudiced i.e., have it is the defendant would not ‘reasonably whether probable’ Walker, if advised.” v. Cal.3d (People supra, pleaded guilty properly 1023; (Giron) (1974) 11 see Court Cal.3d Superior generally 523 P.2d Cal.Rptr. [114 have
It from the that the Court of should not foregoing Appeal follows on the trial denied for writ relief the that ground application petitioner’s determine had suffered court was not to whether defendant required preju- however, In summarily, dice in on his section 1016.5 motion. ruling ruling of denial. we Accordingly, the Court of did not reveal the its grounds Appeal any the cause in order the Court consider shall remand Appeal defendant, as whether the raised such alternative grounds timely Code, (a)(5); (Pen. court’s have been appealable. order may 753]; see (1970) 10 People Thompson Cal.Rptr. Cal.App.3d 6, ante.) fn.
Disposition the the of the Court of Appeal denying petition We reverse decision cause with directions and remand the for writ of mandate/prohibition with this in accordance further that court to conduct proceedings opinion. Brown, J., Baxter, J., Chin, J., J., concurred. and C.
George, MOSK, J., I do not find any requirement Unlike the majority, Dissenting.— criminal to vacate seeking a noncitizen convicted in the Penal Code that 1016.5) (section must show Code section 1016.5 under Penal judgment had known about to trial if he or she he or she would have proceeded or no of pleading guilty and nationality consequences possible immigration Therefore, I dissent. contest. respectfully of a “Prior to (a) acceptance plea
Subdivision of section 1016.5 provides: under state as a crime or nolо contendere to offense punishable guilty law, law, the court shall as infractions under state offenses designated except If to the defendant: advisement on the record administer following citizen, of the offense are not a are advised that conviction you you hereby for you been charged may have the [1] depor- tation, [2] exclusion from admission to the United States, or [3] denial added.) (Italics States.” naturalization laws of United pursuant turn, (b) of that if court fails In subdivision section 1016.5 provides and the give warning possible consequence “[1] deportation, [2] exclusion admission to the United States, [3] denial States, court, on of naturalization laws United pursuant motion, the defendant to defendant’s shall vacate the judgment permit contendere, or nolo and enter a withdraw guilty plea *26 (Italics added.) guilty.” face, is admit of It
On its does not foregoing language exceptions. that the defendant show that mandatory, only by requirement qualified one of the adverse or she faces possibility consequences. Nevertheless, construe the statute as I that “our is to obligation recognize (1994) a whole.” v. 9 Cal.4th (People Rayford Cal.Rptr.2d [36 Therefore, in Jose Francisco Zamu- 1369].) I that an individual agree did not know about the adverse dio’s must also show that he or she position of his I reach this conclusion nationality consequences plea. (d) “The finds Legislature because subdivision of section 1016.5 provides: an who is not and declares that in instances individual many involving offense as a crime citizen of the United States with an charged punishable law, is entered under state or nolo contendere without guilty plea such offense is grounds depor- that a conviction of knowing States, denial of natural- tation, to the United or exclusion from admission Therefore, it is the intent to the of the United States. ization laws pursuant by to such accused individuals ... fairness the Legislature promote with section requiring [compliance 1016.5].” and “such accused indi- the defendant knowing”
The “without language a conclusion that (d) of section 1016.5 permits viduals” in subdivision a lack of no contest must show to vacate a or guilty individual seeking or conse- nationality of the three immigration of one or more knowledge that noncitizens sometimes recognizes of that “Section 1016.5 plea. quences by adverse . . . consequences themselves unknowingly expose [such] Murillo 39 Cal.App.4th entering (People pleas.” is 403].) designed protect That statute danger Cal.Rptr.2d of each enumerated consequence, and if a defendant does know against, (See them is harmless error. also to advise him or her of failing Castaneda 37 Cal.App.4th 1016.5, con- onto section
But the another engraft requirement majority that he or she would criminal must also show convicted cluding I disagree. or no contest. guilty have pleaded be read to that may in the of section 1016.5 language
There is nothing Rather, they do not state otherwise. such a The majority impose requirement. (section 1404). section 1404 for it in Penal Code authority find or mode from the form “Neither departure Section 1404 provides: nor an or this Code in to any pleading proceeding, respect prescribed invalid, therein, unless it has actually renders it prejudiced error or mistake defendant, to a substantial.right.” tended to his respect prejudice, however, has Legislature specified In the case of section does a noncitizen defendant who a substantial when right it does implicate contest or no pleads guilty about the not know possible exclusion, or later deportation, advised being possibility without 1404, therefore, on section effect is without Section bar to naturalization. *27 1016.5. a collateral matter is consequence state that immigration
The majority “constitutes a legislative 1404 and that section in a criminal proceeding ante, 199.) at p. errors.” (Maj. opn., technical that courts disregard command technical about is, however, deporta- collateral or necessarily nothing There exclusion, citizenship. to obtain United States tion, or loss of opportunity
213 which, based on a situation in imperfect was to avoid The Legislature trying information, States and quite could be banished from United a defendant Court life. The United States Supreme from his family possibly separated . . result. “may of such a Deportation has noted severity consequence. life; (Ng that makes life worth living.” and or of all in loss of both property 492, 495, 276, 66 L.Ed. 284 S.Ct. (1922) Ho v. 259 U.S. Fung White [42 home, and 938].) country banish from family, adopted “To [noncitizens] done at the time when they the most drastic kind whether punishment 685, (1957) 353 U.S. 691 (Lehmann or later.” v. Carson [77 were convicted “ Black, 1022, 1025, J.).) ‘Denatural- (cone. 1 L.Ed.2d opn. S.Ct. 1122] be and may ization [including deportation consequences possible exclusion] . for crimes. . . than that flow from conviction more grave consequences extraordinarily his American is an person citizenship deprive [T]o rest The of such a even may severe penalty. consequences deprivation ” 759, (1988) his children.’ United States 485 U.S. (Kungys v. heavily upon 1537, 1557, Stevens, J.).) (cone. L.Ed.2d S.Ct. opn. [108 839] must refer to It is also to understand advisement important proper all three and With nationality regard immigra- consequences. of a tion exclusion and are different consequences, deportation criminal and conviction. “The differences between of exclusion proceedings United States (Maldonado-Sandoval those of are significant.” deportation 278, (9th 1975) curiam).) The rights I. & N. Serv. Cir. 518 F.2d 280 (per accorded to the alien in each are different. Ma v. Barber (Leng May quite 185, 1072, 1073-1074, 1246].) It is (1958) 357 U.S. S.Ct. L.Ed.2d [78 of this discussion to outline the are beyond differences—thеy scope subtle, overview, and one need for an many, complicated—but only compare id., 1182(a)(2), 1227(a)(2). 8 United States Code section The with to be made here is that the was wise to only Legislature point require about exclusion and Section 1016.5’s warnings require- separate deportation. Code, the courts ments are well in title 8 of the United States grounded adhere that a defendant be should to the carefully Legislature’s requirement of each a noncitizen entry aware adverse consequence following possible of a guilty plea.1 discuss, dictum, VI, majority perceive 1The also in what I to be a article section 13 of Contrary anything implied parts be said or California Constitution. discussion, reviewing provision I bars believe that constitutional (1991) (Mitchell v.
reversing judgment prejudicial when there has been no error. Gonzales 913, 872]; (1956) 46 Cal.2d P.2d v. Watson Cal.3d 243]; 476-477 P.2d P.2d Herbert v. Lankershim 9 Cal.2d 834-836 [299 220]; Copley final test is Cal.App.2d “[T]he v. Putter 456 [207 Watson, 835.) supra, I have found reviewing (People court.” 46 Cal.2d ‘opinion’ *28 reasons, us, the basis before For the and on of the record I foregoing affirm the decision of the Court of summarily denying would Appeal writ petition.
Kennard, J., concurred. 12, 2000, the modified above.
On was to read July printed opinion authority suggestion provision Legislature prevents no that the constitutional remedy imposing particular particular for a trial court error. Moreover, remedies, VI, am apply legislated if article did I even section 13 provision. procedural that the error is in nature and hence covered persuaded legislated the error applied if the remedies and were provision And even constitutional nature, Legislature appear, it would from the text of section has procedural erroneously plea to miscarriage justice it be a for the entered stand determined that would id., (d).) (See possible the United States. if the result is banishment from notes and stolen and charges case” on the vehicle-taking receiving property and Accord- eight jail. defendant received sentence months probation on such facts it “seems assured” that defendant virtually ing petitioner, had would no contest even if he been advised. have pleaded properly was the trial court’s by incomplete Whether defendant prejudiced for decision the trial advisements is factual question, appropriate Communications, Inc. v. (See Angeles in the instance. Cel-Tech Los first 163, 190, Co. 20 Cal.4th fn. 13 Telephone Cal.Rptr.2d Cellular 527]; P.2d S. 1 Cal.4th Adoption Kelsey determination, In making our court should be this guided by opinion previous pronouncements. of a For from the erroneous state prejudice procedural require- application ment, test be stated as follows: That ... “the generally applicable cause, evidence,’ court, is of of the entire including ‘after examination to the that it is result more favorable reasonably ‘opinion’ probable