Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. Nos. F97602662-9, 6026620-9, Houry A. Sanderson, Judge.
Roger K. Litman, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
On April 22, 1998, appellant, Jose Limon Barreto, pled guilty to possession for sale of methamphetamine (Health & Saf. Code, § 11378, subd. (a)) and admitted a firearm enhancement (Pen. Code, § 12022, subd. (c)). On December 6, 2007, Barreto filed a Motion to Vacate Conviction and Judgment. On December 20, 2007, the court denied the motion.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Barreto contends the court abused its discretion when it denied his Motion to Vacate Conviction and Judgment. We will affirm.
FACTS
On October 12, 1997, Barreto was detained by Fresno police officers after an officer observed him speeding and running a red light. During a consent search of his car, the officers found a .25 caliber handgun, three baggies containing a total of 6.3 grams of methamphetamine, a scale, and packaging material. Barreto told an officer he was acting as a courier between a drug dealer and his customers. Barreto also admitted owning the handgun found in his car.
On December 24, 1997, the district attorney filed an information charging Barreto with transportation of methamphetamine (Health & Saf. Code, § 11379), possession for sale of methamphetamine (Health & Saf. Code, § 11378), and an arming enhancement in each count (Pen. Code 12022, subd. (c)).
On February 6, 1998, Barreto filed a motion to suppress challenging the validity of his detention and search of his car.
Following a hearing on February 25, 1998, the court denied the motion.
On March 26, 1998, Barreto pled guilty to the possession for sale offense and admitted the accompanying arming enhancement in exchange for the dismissal of the remaining count and enhancement and a lid of four years four months. Prior to entering his plea, Barreto filled out a Felony Advisement, Waiver of Rights and Plea Form, including the section entitled, “CONSEQUENCES OF PLEA OF GUILTY OR NO CONTEST[.]” Barreto initialed a box next to paragraph 2 of this section which stated, “[I understand:] If I am not a citizen my change of plea could result in my deportation, exclusion from admission to the United States, and/or the denial of naturalization.” (Italics added.) Although the court did not repeat the immigration consequences to Barreto during the change of plea proceedings, Barreto answered affirmatively when asked by the court if he initialed and signed the form and if he understood and agreed “to all of what it states.” He also told the court that he did not have any questions about his plea bargain and the consequences of his plea.
On April 22, 1998, the court placed Barreto on probation for three years on the condition he serve 270 days local time.
Sometime thereafter Barreto contacted an attorney, Robert Yarra, to process an application for citizenship. Yarra discovered Barreto had a criminal record and referred him to attorney Roger Litman.
On December 6, 2007, Litman filed a Motion to Vacate Conviction and Judgment on Barreto’s behalf. In an attached declaration Barreto states that at age 11, he entered the United States in 1986 as a permanent resident. On the day of his arrest, he was talking on the telephone when officers approached him, seized his car keys from his hand, and searched his car without obtaining his permission. At the 1998 change of plea hearing, Barreto’s attorney told him he thought he could convince the court to grant Barreto probation if Barreto initialed and signed the change of plea form. His attorney did not review the form with him. He did, however, tell Barreto to watch him during the hearing and he would nod his head to let Barreto know whether to answer yes or no to the court’s questions. Barreto followed his attorney’s instructions. Barreto further alleged that prior to entering his plea he was unaware that the consequences of his plea included deportation, a denial of admission to the United States, or a denial of naturalization. If he had been aware of these consequences, he would not have entered his plea.
The prosecution did not file a response to Barreto’s motion.
On December 20, 2007, at a hearing on the motion to vacate the conviction, Barreto’s counsel argued that Barreto’s statements were uncontradicted requiring the court to grant the motion or conduct an evidentiary hearing. The court, however, noted that at the 1998 change of plea hearing, Barreto signed the change of plea form, initialed the paragraph describing the immigration consequences of his plea, and told the court that he understood and agreed to all it stated. The court then denied Barreto’s motion and his request for an evidentiary hearing.
DISCUSSION
Barreto relies on his averments in his supporting declaration and the court’s failure to advise him on the record of the immigration consequences of his plea to contend that he was unaware of these consequences when he entered his plea in 1998. Thus, according to Barreto, the court abused its discretion when it denied his motion to vacate the judgment. We will reject this contention.
“Before a state court accepts a plea of guilty or no contest, section 1016.5 requires that the court advise the defendant that if he or she is not a citizen, the conviction ‘may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization [.]’ (§ 1016.5, subd. (a).) The statute further provides that if ‘the court fails to advise the defendant as required’ and the defendant shows that the conviction may have adverse immigration consequences, then the court shall, on the defendant’s motion, vacate the judgment and allow the defendant to withdraw the plea. (§ 1016.5, subd. (b), italics added.) To obtain relief under section 1016.5, a defendant thus must demonstrate that (1) the court taking the plea failed to advise the defendant of the immigration consequences as provided by section 1016.5, (2) as a consequence of conviction, the defendant actually faces one or more of the statutorily specified immigration consequences, and (3) the defendant was prejudiced by the court’s failure to provide complete advisements. [Citations.] We review the trial court's ruling denying the motion to vacate judgment for abuse of discretion. [Citation.]” (People v. Chien (2008) 159 Cal.App.4th 1283, 1287.)
As the fact finder, the court was “entitled to reject even uncontradicted testimony. [Citation.]” (People v. $9,632.50 U.S. Currency (1998) 64 Cal.App.4th 163, 175.) Thus, the court acted within its discretion when it implicitly rejected Barreto’s claim that he was unaware of the immigration consequences when he entered his plea in 1998. Further, the court could reasonably conclude from Barreto’s signature and initials on the 1998 change of plea form and from Barreto’s responses to the court’s inquiries in 1998 that Barreto was aware of these consequences when he entered his plea.
Moreover, in People v. Ramirez (1999) 712 Cal.App.4th 519, 522, this court concluded that section 1016.5 does not require a trial court to orally advise a defendant of the possible immigration consequences of a guilty plea, and that a written change of plea form like the one Barreto signed in 1998, satisfied the requirements of section 1016.5. (Id. at pp. 521-523.) Thus, the court here could reasonably conclude that the procedure followed by the court at the 1998 change of plea proceedings complied with the requirements of section 1016.5.
Nor can Barreto show that he was prejudiced by the alleged failure to advise him of the immigration consequences of his plea. “In determining whether or not a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned. [Citation.]” (In re Resendiz (2001) 25 Cal.4th 230, 254.) Here, a substantial quantity of methamphetamine, a scale, packaging material, and a gun were found in the car Barreto was driving just prior to his arrest. Additionally, Barreto admitted to the arresting officers that he was acting as a courier for a drug dealer and that the gun belonged to him. On February 25, 1998, the court denied his motion to suppress. Barreto contends he would have vigorously fought the charges including the search and seizure issues, had he known the severity of the immigration consequences of his plea. However, this contention is not persuasive because even though Barreto’s plea did not prevent him from appealing the denial of his suppression motion (§ 15385, subd. (m)), the record does not show that he ever did. Further, absent a successful suppression motion, the alleged failure to advise Barreto of the immigration consequences of his plea could not have prejudiced him because the evidence of his guilt was overwhelming. Thus, we conclude that the court did not abuse its discretion when it denied Barreto’s Motion to Vacate Conviction and Judgment.
DISPOSITION
The judgment is affirmed.