Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct.No. E9911109
Duffy, J.
Under the authority of Penal Code section 1016.5, subdivision (b), defendant Ka Pui Leung sought in superior court to withdraw his no-contest plea because its consequences included eventual deportation. The superior court entered an order denying the motion, ruling that defendant understood the possible immigration consequences of his plea and was ineligible for relief. On appeal, defendant contends that he did not understand the superior court’s admonition about the possible immigration consequences of his plea and that his counsel failed to explain them to him before he entered it.
Further statutory references are to the Penal Code unless otherwise indicated.
Because we find that defendant suffered no prejudice as a result of the post judgment order, we will affirm it.
FACTS AND PROCEDURAL BACKGROUND
Defendant is a Chinese citizen. Starting shortly after his arrival in the United States he began to accumulate a criminal record, including the felony conviction he seeks to overturn in the present case.
According to his declaration, defendant arrived in the United States and became a lawful permanent resident alien in 1990. He was convicted of theft in California in 1992 and again in 1993, at age 19. The first conviction was for petty theft (§§ 484, 488), and the second was for theft by fraudulent use of an access card (§ 484g).
In 1999 defendant, then about age 25, pleaded no contest to assault with a deadly weapon or by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) A second charged count, of false imprisonment (§§ 236, 237), was dropped. Defendant served 365 days in county jail.
An attack on defendant’s girlfriend formed the basis for the aggravated assault conviction. According to the probation report, defendant told her he was going to kill her and attempted to choke her, struck her on the back and arm, and eventually “grabbed a hammer to strike the victim’s torso, shoulder, and head.” She tried to flee but initially defendant prevented her from doing so. As she was making another attempt, this one successful, defendant slashed her with a knife. She drove to a gasoline station and called the police.
When the probation officer interviewed the victim, she “related another incident which occurred the previous year when the defendant became angry upon learning the victim was pregnant and kicked her a few times in the stomach, causing her to miscarry.”
The victim told the probation officer that “defendant has a gambling problem and his losses appear to coincide with his anger.”
Defendant told the officers who arrested him that his girlfriend attacked him first and he acted in self-defense. He admitted striking her with a hammer but denied also using a knife.
Following his 1999 conviction, defendant, who remained a foreign citizen and not a United States citizen, made several visits to his native China. On returning from one of them in May of 2006, defendant arrived at the San Francisco airport and Bureau of Customs and Border Protection officials discovered his conviction. He was found deport able in later federal proceedings for having committed a crime of moral turpitude. While awaiting deportation, defendant filed his section 1016.5 motion in superior court.
In a declaration accompanying his motion, defendant averred that his English is poor and he did not understand the immigration advisement given during the court proceedings in which he entered his plea of no contest. He further averred that his attorney spoke to him for a total of 10 minutes and only in Cantonese, did not ask him about his citizenship status, and did not explain the immigration consequences of a no-contest plea to assault with a deadly weapon or by means of force likely to cause great bodily injury.
Defendant also declared that his mother, a United States citizen, is disabled and relies on him financially and physically. The same, he declared, is true of his maternal grandmother, who resides in the United States.
In response, the People submitted declarations from the arresting officer and the probation officer stating that although they did not remember defendant, they would have obtained professional interpreting services if they had been unable to speak with him in English instead of interviewing him themselves as they did. The People also submitted a letter, purportedly written by defendant as he awaited sentencing, and penned in good and somewhat legalistic English, in which defendant asked for leniency.
After hearing argument, the superior court pronounced its ruling, stating (as relevant here) that when defendant’s plea was taken in 1999 “the court was led to believe by an officer of the court that an interpreter was not needed. Therefore, the motion is . . . denied.” The court also ruled that defendant had not diligently sought relief. As we will explain later, we need not address that portion of the ruling.
Earlier in the hearing the superior court, after reviewing the case file, had noticed that “defense counsel says to the court, [an interpreter] is not needed.”
Counsel has informed us that defendant was deported while this appeal was pending.
DISCUSSION
Section 1016.5, subdivision (a), requires the court, prior to accepting a guilty or no-contest plea, to advise the defendant of the immigration consequences: “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: “Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If . . . 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.”
For the waiver to be valid, the defendant must understand the immigration consequences of the plea. (People v. Ramirez (1999) 71 Cal.App.4th 519, 522; see also People v. Totari (2002) 28 Cal.4th 876, 884 [“Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness”].) Section 1016.5’s language implies such a requirement: “The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea.” (Id., subd. (d), italics added.)
A ruling on a motion under section 1016.5, subdivision (b), is reviewed for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).)
In making its ruling on defendant’s section 1016.5 motion the superior court relied on a statement by defense counsel, made during a hearing some days before the taking of defendant’s plea, that defendant did not need an interpreter. But, as we have noted, in his declaration defendant averred that his attorney spoke to him for a total of 10 minutes and only in Cantonese, did not ask him about his citizenship status, and did not explain the immigration consequences of the plea he would later enter. The gist of defendant’s argument is that defense counsel was (whether or not constitutionally ineffective) lackluster in representing defendant’s interests and an unreliable source to inform the trial court that defendant did not need an interpreter. Defendant was aided by an interpreter when he was formally sentenced, but was not similarly assisted during the crucial taking of his plea. Our reading of the record of the taking of the plea suggests to us that defendant’s various acknowledgments and waivers were pro forma; they do not necessarily reflect that defendant understood the nature of the proceedings, but neither do they necessarily reflect that he did not understand them.
We conclude, however, that even if the superior court abused its discretion in denying defendant’s motion to withdraw his no-contest plea, defendant was not prejudiced by it. Hence we need not decide whether an abuse of discretion occurred.
“To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by 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) he or she was prejudiced by the non advisement” (People v. Totari, supra, 28 Cal.4th at p. 884.)
Defendant concedes that because he was sentenced to a year in jail he is an aggravated felon for immigration-consequence purposes. Because “[t]he term ‘aggravated felony’ means [¶] . . . [¶] . . . a crime of violence . . . for which the term of imprisonment [is] at least one year” (8 U.S.C. § 1101, subd. (a)(43)(F), fn. omitted), he contends that if he had known the likely consequences of his plea, he could have pleaded guilty to false imprisonment in exchange for a 364-day sentence, and that would take him out of the category of aggravated felons.
As defendant acknowledges, however, the basis for the federal government’s excludability and deport ability finding is that by committing aggravated assault in violation of section 245, subdivision (a)(1), he committed a crime of moral turpitude for immigration purposes. The government’s position was correct to a virtual certainty. (Membreno v. Gonzales (9th Cir. 2005) 425 F.3d 1227, 1228; Alvarenga-Villalobos v. Ashcroft (9th Cir. 2001) 271 F.3d 1169, 1171; contra, Carr v. I.N.S. (9th Cir. 1996) 86 F.3d 949, 952 .) The government’s determination was not based on aggravated-felony grounds, although it could have been.
The Ninth Circuit recently explained that Carr stands only for the proposition that aggravated assault under section 245 is not automatically a crime of moral turpitude, not that it never is, as implied in Carr. (Navarro-Lopez v. Gonzales (9th Cir. 2007) 503 F.3d 1063, 1071.)
A foreign citizen who commits a crime of moral turpitude is deport able (See generally 8 U.S.C. § 1227, subd. (a)(2)(A).) Once deported, such an individual is permanently ineligible to return to the United States unless the maximum possible penalty was one year of imprisonment or less and the individual was sentenced to six months of imprisonment or less. (8 U.S.C. § 1182, subds. (a)(2)(A)(i)(I), (a)(2)(A)(ii)(II).) A foreign citizen who has committed two crimes of moral turpitude in separate transactions is deport able no matter how long he or she has resided in the United States. (8 U.S.C. § 1227, subd. (a)(2)(A)(ii).) Defendant’s two theft offenses were crimes of moral turpitude. (Cuevas-Gaspar v. Gonzales (9th Cir. 2005) 430 F.3d 1013, 1020.) Moreover, as we have explained in the previous paragraph, it is virtually certain that the aggravated assault of which defendant was convicted was a crime of moral turpitude for immigration purposes. And for immigration purposes false imprisonment—the crime defendant argues he could have pleaded guilty to had his counsel been more alert to the immigration consequences of the criminal proceedings—also is a crime of moral turpitude. (See Baldini-Potermin, Defending Non-Citizens In Minnesota Courts: A Practical Guide To Immigration Law And Client Cases (1999) 17 Law & Ineq. 567, 708; Sanchez-Moreno v. I.N.S. (9th Cir. Apr. 5, 1995) 53 F.3d 7339 [1995 WL 150525, *3] [nonpub. opn.].) Thus, defendant could not have avoided deportation and exclusion if he had managed to reach the disposition to which he argues the People and the superior court might have been amenable.
“Citing unpublished federal opinions does not violate our rules. (Cal. Rules of Court, rule 8.1115.)” (In re Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18, italics omitted.)
Under these circumstances, any error in the taking of his no-contest plea was harmless; i.e., as set forth in Zamudio, “ ‘ “after an examination of the entire cause, including the evidence,” ’ ” (23 Cal.4th at p. 210) we are of the opinion that it is not “ ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Ibid.) Zamudio is an immigration-consequences case presenting the same question defendant presents here, i.e., whether “the trial court, in ruling on defendant’s 1016.5 motion, did not consider evidence relating to the state of defendant’s knowledge at the time he entered his plea.” (Ibid.)
At oral argument, defense counsel argued on defendant’s behalf that the prejudice question under section 1016.5 is not outcome-determinative, i.e., that defendant need only show a reasonable probability that he would not have pleaded no contest, and need not also show that he would have achieved a result at trial alleviating the immigration consequences of his crimes. We do not agree. It is true, of course, that the black-letter law in this area, as set forth in recent California Supreme Court decisions, recites: “On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised.” (People v. Totari, supra, 28 Cal.4th at p. 884.) Furthermore, we note that in a dictum, People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, observed that In re Resendiz (2001) 25 Cal.4th 230, 253, “did not hold that prejudice must be established by showing the probable favorable outcome of any trial; it merely suggested that the probable outcome of a trial was one factor a court could consider in assessing the likelihood that a defendant would have rejected a plea offer.” (Castro-Vasquez, at p. 1245.) But neither did Totari, Resendiz, Zamudio, or any other decision of which we are aware and that we are bound to follow, state that the People are prohibited from establishing the harmlessness of a superior court’s ruling on a section 1016.5 motion by showing that a defendant would have suffered the same immigration consequences even if permitted to withdraw the plea and proceed to trial. Nor does section 1016.5 impose a prejudice standard that forecloses such a rule. The general prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836, applies here as in other cases involving claims of state-law error. (See Zamudio, supra, 23 Cal.4th at p. 210.)
We recognize that an alien convicted of a crime of moral turpitude, unlike an alien convicted of an aggravated felony, is theoretically eligible for cancellation of removal under 8 United States Code section 1229b, subdivision (a). In defendant’s case, however, we discern no reasonable probability that he would obtain such relief.
At the hearing on defendant’s motion to withdraw his plea, the superior court was apprised of this state of affairs. Defense counsel explained that if defendant’s sentence were modified to make it one day shorter, he would not be an aggravated felon for whom deportation and exclusion is mandatory, but instead deport able because of his conviction of a crime of moral turpitude with a possibility of discretionary relief. “If the sentence were not one year then discretion would be transported back to the immigration judge.” “[I]t’s not that he [will] win. He may still get deported, but we don’t know that.”
Cancellation of removal of a lawful permanent resident alien is discretionary with the United States Attorney General. (8 U.S.C. § 1229b, subd. (a); see Guled v. Mukasey (8th Cir. 2008) 515 F.3d 872, 880 (speaking of cancellation of removal for temporary resident aliens under a related statute].) “The [law] commits cancellation of removal for certain kinds of permanent residents to the discretion of the immigration authorities. [Citations.] The [Board of Immigration Appeals] has decided that the Immigration judge ‘must balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his (or her) behalf’ to determine whether cancelling removal would be in the best interests of the United States. [Citation.] Among the favorable factors that can be considered are family ties, long residence in the United States, hardship that will befall the respondent and her family in the event of removal, and proof of genuine criminal rehabilitation.” (Ferguson v. Atty. Gen. of U.S. (3d. Cir. 2007) 216 Fed.Appx. 217, 219-220; see also Douglas v. Ashcroft (3d Cir. 2004) 374 F.3d 230, 232.) In defendant’s case, he had amassed a criminal record at a young age, in an uncharged incident had caused his girlfriend to miscarry by kicking her while she was pregnant, and in the charged incident leading to his conviction of aggravated assault attacked her in a dangerous manner. Although it is possible that the federal immigration authorities would grant cancellation of removal despite these aggravating facts, we discern no reasonable probability that such would be the case. (See Ferguson, at p. 220.)
Because we conclude that any abuse of discretion by the superior court did not prejudice defendant, we need not consider the alternative basis for the court’s ruling, namely that defendant was dilatory in seeking relief under section 1016.5.
DISPOSITION
The superior court’s post judgment order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.