Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. GA009483 Suzette Clover, Judge.
Law Office of R. Wayne McMillan and R. Wayne McMillan for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, Judge
Defendant and appellant Celia Garcia appeals the superior court’s denial of her Penal Code section 1016.5 motion, by which she sought to vacate her conviction for possession of cocaine for sale on the ground the trial court failed to advise her of the immigration consequences of her plea. We reverse the trial court’s order and remand for further proceedings.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In December 1991, Garcia, a Mexican citizen, was charged with possession of cocaine for sale. (Health & Saf. Code, § 11351.) On January 28, 1992, she pleaded guilty to the charge. She was placed on probation for three years on condition she serve 180 days in jail.
On May 11, 2009, Garcia moved pursuant to section 1016.5 to withdraw her plea and vacate the judgment of conviction. Her declaration in support of the motion explained that in November 1991, she lived in a house with her 60-year-old mother and four other persons, including her adult brother and adult son-in-law. On November 1, 1991, Glendale police officers executed a search warrant at Garcia’s home and allegedly discovered cocaine. Both she and her mother were charged with cocaine possession. Garcia was offered a plea agreement whereby if she pleaded guilty, charges against her mother would be dismissed. Although Garcia did not feel she was guilty of the offense, she “felt a tremendous obligation to [her] mother to accept” the bargain. No one explained the immigration consequences of her plea to her. She did not recall the judge or prosecutor advising her that the plea could have adverse immigration consequences, and believed that she would have remembered if she had been so advised. Had she been aware of the immigration consequences, she would not have pleaded guilty.
Garcia further averred that she has lived in the United States since 1966, when she was 14 years old. She became a lawful permanent resident in 1979. Her family and “entire life” is in the United States. She no longer has any family or a “support group” in Mexico. She has learned through discussions with an attorney that due to her conviction, she is permanently ineligible for naturalization, is deportable as an aggravated felon, and cannot travel outside the United States because she would likely be denied reentry. Garcia’s memorandum of points and authorities in support of her motion suggested that the United States Immigrations and Customs Enforcement (ICE) is not yet aware of her conviction, but will likely become aware of it and initiate deportation proceedings when she applies to renew her alien registration card, which expires “within the next few years.”
Appended to Garcia’s motion was a certification from the official court reporter stating that due to the passage of time, the transcript of the plea proceeding is no longer available. The minute order memorializing the 1992 plea proceeding contains a box checked next to a paragraph stating, “Defendant advised and personally waives his [sic] right to confrontation of witnesses for the purpose of further cross-examination, and waives privilege against self-incrimination. Defendant advised of possible effects of plea on any alien/citizenship/probation/parole status.”
At the hearing on the motion to vacate the judgment, Garcia argued that the minute order was insufficient to prove the advisements had been given. The district attorney countered that Garcia had not met her burden to show the advisements were not given. The district attorney also requested that, if the trial court was inclined to grant the motion, the hearing be continued to allow the People to marshal additional evidence showing the advisements were given. The trial court concluded nothing in the record “indicate[d] that Ms. Garcia wasn’t sufficiently advised of... the immigration consequences of [her plea].... And the court record that we have does indicate that she was advised.” Garcia’s statement she did not recall being advised was, in the trial court’s view, insufficient. Accordingly, the trial court denied the motion.
DISCUSSION
Section 1016.5, subdivision (a), requires that a trial court, prior to accepting a defendant’s plea of guilty or nolo contendere to an offense punishable as a crime under California law, advise the defendant that: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” Subdivision (b) of section 1016.5 provides in pertinent part: “If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.” (Italics added.) The advisement need not precisely mirror the statutory language; substantial compliance is all that is required. (People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Gutierrez (2003) 106 Cal.App.4th 169, 173-174.) In enacting section 1016.5, the Legislature demonstrated concern that “those who plead guilty or no contest to criminal charges are aware of the immigration consequences of their pleas.” (People v. Kim (2009) 45 Cal.4th 1078, 1107; People v. Dubon (2001) 90 Cal.App.4th 944, 951.)
To prevail on a motion brought pursuant to section 1016.5, a defendant must establish: (1) at the time of the plea, the trial court failed to advise the defendant of the immigration consequences of the plea as provided in the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) properly advised, the defendant would not have entered the plea. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192; People v. Chien (2008) 159 Cal.App.4th 1283, 1287; People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244; People v. Dubon, supra, 90 Cal.App.4th at pp. 951-952.) We review a trial court’s ruling denying a motion to vacate the judgment for abuse of discretion. (People v. Chien, supra, at p. 1287; People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.)
As the People concede, the trial court erred by concluding the minute order was a sufficient record establishing the advisements were given. To the contrary, on the record before the trial court, the court was required to presume the advisements were not given in the 1992 plea proceeding. (See People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.) Our decision in People v. Dubon, supra, 90 Cal.App.4th 944, is directly on point. In Dubon, the defendant contended he had not been given the advisements mandated by section 1016.5. The reporter’s transcript of the plea hearing was unavailable due to the passage of time. The clerk’s minute order contained a box checked next to language identical to that at issue here, stating that Dubon had been advised of “ ‘possible effects of plea on any alien/citizenship/ probation/parole status.’ ” (People v. Dubon, supra, at p. 949.) We reasoned that section 1016.5’s mandate, “[a]bsent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement” (§ 1016.5, subd. (b)), created a rebuttable presumption affecting the burden of proof. (People v. Dubon, supra, at pp. 952-953.) Where a record of the advisements is absent, the People bear the burden of proving by a preponderance of the evidence that they were given. (Id. at p. 954.) We concluded that a minute order could, under proper circumstances, constitute such a record. (Id. at pp. 954-955.) By itself, however, the minute order in Dubon was insufficient to show the defendant had been given complete and accurate advisements. (Id. at p. 955.) The minute order stated only that Dubon was advised of the possible effects on his alien or citizenship status; it did not show that Dubon was given the required advisements in full, or accurately. (Ibid.) Although advisement in the precise statutory language is not required, the Dubon minute order did not establish substantial compliance with the statute. (Ibid.) However, other evidence presented by the People, including the testimony of the trial judge who took Dubon’s plea, coupled with the minute order, was sufficient to overcome the statutory presumption. (Id. at pp. 955-956.)
Here, as in Dubon, the minute order standing alone was insufficient to show Garcia was advised of all three possible immigration consequences. (People v. Dubon, supra, 90 Cal.App.4that p. 955; People v. Castro-Vasquez, supra, 148 Cal.App.4th at pp. 1244-1245.) Absent a sufficient record, the trial court was required to presume the trial court failed to give the section 1016.5 advisements. (§ 1016.5, subd. (b); People v. Dubon, supra, at p. 953; People v. Castro-Vasquez, supra, at pp. 1244-1245.) Instead, the trial court turned the presumption on its head, requiring that, in the absence of a record, Garcia prove the immigration advisements were not given.
The foregoing does not automatically entitle Garcia to withdraw her plea, however. As we have explained, to qualify for relief pursuant to section 1016.5, a defendant must show not only that the advisements were omitted, but also that there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences, and that if properly advised, the defendant would not have entered the plea. Because the trial court erroneously concluded the first prong was unmet, it did not address these issues. Whether Garcia would have entered the plea had she been properly advised, and whether there is more than a remote possibility the conviction will result in adverse immigration consequences for her, are questions appropriate for resolution by the trial court in the first instance. (See People v. Akhile (2008) 167 Cal.App.4th 558, 565; People v. Carty (2003) 110 Cal.App.4th 1518, 1530-1531.) Additionally, at the hearing below the People requested a continuance to allow them to provide additional evidence to the court to establish the advisements were in fact given. Because the trial court denied the motion on the ground Garcia had not established the first element, it did not rule on the People’s request. Accordingly, we remand the matter to the trial court so it may address these issues.
Because Garcia’s conviction was for possession of drugs for sale, it appears that under federal law, she is subject to deportation and permanent exclusion from the United States. (People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1243, fn. 3.)
DISPOSITION
The order denying Garcia’s motion to withdraw her plea is reversed. The matter is remanded to the trial court for further proceedings consistent with the opinions expressed herein.
We concur: KLEIN, P. J., CROSKEY, J.