Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA232328, Patricia Schnegg, Judge. Affirmed.
Law Offices of Gregory Rubel, Gregory Rubel for Defendant and Appellant.
Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
On September 20, 2002, defendant and appellant Yoni Rolando Solis (defendant) entered a no contest plea to assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). On April 20, 2010, defendant filed a motion to vacate the judgment pursuant to section 1016.5, on the ground that the prosecutor, instead of the judge, advised him of the immigration consequences of his plea. The trial court denied defendant’s motion. Defendant appeals. We affirm the order.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
On July 1, 2002, District Attorney of Los Angeles County filed an information charging defendant with assault with a firearm in violation of section 245, subdivision (a)(2), assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(1), assault with a deadly weapon by means likely to produce great bodily injury in violation of section 245, subdivision (a)(1), and criminal threats in violation of section 422. The information also alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1).
On September 20, 2002, the parties advised the court that they had reached a plea agreement pursuant to which defendant would plead guilty to assault with a firearm, and the prosecution would dismiss the remaining counts and the allegation of defendant’s use of a firearm. Defendant was advised by the prosecutor, “If you are not a citizen of the United States, pleading guilty or no contest to this charge will result in your deportation, denial of naturalization, exclusion from admission to the United States, denial of amnesty and denial of reentry. This does not apply to you, however, if you were born here in the United States.” Defendant said he understood the advisement.
Defendant was a citizen of El Salvador but had been living in the United States since 1983.
Defendant pled no contest to the charge of assault with a firearm in violation of section 245, subdivision (a)(2). The trial court found that “notice [had] been given as required by law.” The trial court accepted defendant’s plea of no contest and found defendant guilty of assault with a firearm. The remaining counts and the allegation of defendant’s use of a firearm were dismissed.
On May 27, 2003, defendant’s probation was revoked. On June 24, 2003, defendant admitted to violating probation. The trial court found defendant in violation of probation and terminated probation. The trial court sentenced defendant to serve two years in state prison.
On February 26, 2004, the U.S. Department of Justice, Immigration and Naturalization Service (INS), sent to defendant a notice to appear before an immigration judge of the United States Department of Justice, at a date and time to be set, to show why he should not be removed from the United States because defendant was sentenced to incarceration for a period of two years. On June 2, 2004, the INS sent to defendant a “Warning to Alien Ordered Removed or Deported, ” stating that he was prohibited from entering the United States because he has been ordered deported from the United States and he was convicted of an aggravated felony.
On March 29, 2006, the trial court vacated defendant’s state prison sentence because it was unsure whether defendant’s counsel advised defendant of the immigration consequences of his June 24, 2003, admission to violating probation. At the April 28, 2006, probation violation hearing, defendant admitted to the probation violation and the trial court found defendant in violation of probation. The trial court sentenced defendant to serve 363 days in county jail and credited him with 363 days in custody.
On April 20, 2010, defendant filed a motion to vacate the 2002 judgment pursuant to section 1016.5 on the ground that defendant was not properly advised of the immigration consequences of his September 20, 2002, no contest plea because the prosecutor gave him the advisement. At the May 28, 2010, hearing on defendant’s motion, defendant’s counsel confirmed that defendant was not contending that he was not given the advisement of the immigration consequences to his plea, but instead defendant’s counsel was “relying on what [he] perceive[d] to be a technicality [that] the [judge] should have given [defendant] those advisements.” The trial court denied the motion, relying primarily on People v. Quesada (1991) 230 Cal.App.3d 525, superseded by statute on other grounds as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207, fn 5.
DISCUSSION
A. Standard of Review
“An order denying a section 1016.5 motion will withstand appellate review unless the record shows a clear abuse of discretion. [Citations.] An exercise of a court’s discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice constitutes an abuse of discretion. [Citation.]” (People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.) The proper interpretation of statutory language is a question of law which we review de novo. (Redevelopment Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 74.)
B. Advisement of Immigration Consequences
Defendant contends that the trial court’s order denying his motion to vacate pursuant to section 1016.5, subdivision (b) should be reversed and that his no contest plea be vacated. The basis of defendant’s contention is that before making his no contest plea, the prosecutor, and not the judge, advised him of the immigration consequences of his plea as set forth in section 1016.5, subdivision (a). We disagree with the contention.
Section 1016.5, subdivision (a) provides in part that “Prior to acceptance of a plea... nolo contendere to any offense punishable as a crime under state law..., the court shall administer the following advisement on the record to the defendant: [¶] 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.” If the trial court fails to give the advisement and the conviction may result in one of the consequences stated in the advisement, “the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of... nolo contendere, and enter a plea of not guilty.” (§ 1016.5, subd. (b).)
Section 1016.5, subdivision (b) provides in part that, “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, 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.”
Defendant does not dispute that he was given notice of the immigration consequences of his plea. He instead contends that the notice was improper because the prosecutor gave him the advisement rather than the trial court. The trial court did not abuse its discretion in denying defendant’s motion to vacate because “the advisement... may be given through any of the numerous individuals acting on behalf of that tribunal, including the judge, counsel, the court reporter, or the clerk.” (People v. Quesada, supra, 230 Cal.App.3d at pp. 535-536.) The purpose of section 1016.5 is to ensure a defendant is advised of the immigration consequences of his plea. (Id. at p. 535.)
Defendant argues that People v. Quesada, supra, 230 Cal.App.3d 525 violates section 1016.5, subdivision (a) and was decided incorrectly. Defendant argues that we should interpret the phrase “the court shall administer” in section 1016.5, subdivision (a) as requiring the judge, and no one else, to administer the advisement.
“We interpret statutes with the object of ascertaining and effectuating the Legislature’s intent. [Citation.] ‘In determining such intent, we begin with the language of the statute itself. [Citation.] That is, we look first to the words the Legislature used, giving them their usual and ordinary meaning.’ [Citation.]” (People v. Standish (2006) 38 Cal.4th 858, 869.) “‘“If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on [its] face....”’ [Citation.]” (People v. Mackey (1985) 176 Cal.App.3d 177, 184.)
We are not prohibited “from determining whether the literal meaning of a statute comports with its purpose.... Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.]” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) “[A]lthough true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative intent.” (People v. Avery (2002) 27 Cal.4th 49, 58.)
As the court in People v. Quesada, supra, 230 Cal.App.3d 525, recognized, “Although it is true that the words ‘court’ and ‘judge’ are used interchangeably in common parlance and in some statutes, the word ‘court’ has multiple meanings. ‘Court’ sometimes refers to ‘the place where the court is held, sometimes the tribunal itself, and sometimes the individual presiding over the tribunal, and in many cases is used synonymously, as well as interchangeably, with “judge”; and, whether the act is to be performed by the one or the other, is generally to be determined by the character of the act, rather than by such designation.’ [Citations.]” (Id. at p. 534.)
In addition, the legislative purpose in requiring the advisement in section 1016.5, subdivision (a) is stated in subdivision (d) of section 1016.5, which provides that the legislative purpose is to ensure that a defendant who is not a citizen of the United States is aware of the immigration consequences of a plea of guilt or no contest. (§ 1016.5, subd. (d).) As stated in People v. Quesada, supra, 230 Cal.App.3d at p. 536, that “[s]o long as the legislative purpose is advanced by having some person acting on behalf of the tribunal actually advise defendant of the immigration consequences of his plea and that advice is reflected ‘on the record, ’ the actual adviser is immaterial.... [T]he dispositive question is whether the defendant has been advised of the immigration consequences of his plea as required by the statute, not who gave the admonition.”
Section 1016.5, subdivision (d) states, “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. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant’s counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction. It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.”
Defendant contends that the same construction of the phrase “the judge” in subsection (a) must also be used in subsection (b). Defendant argues that the phrase “the judge” as used in subsection (b) cannot reasonably be construed to mean “the tribunal.” We, however, are not construing the phrase “the court” as used in subdivision (b). In addition, the two subsections effectuate the legislative purpose of section 1016.5 in different ways. Subsection (a) addresses the means of ensuring that a defendant who is not a citizen of the United States is aware of the immigration consequences of a plea. It requires that a defendant be given notice of the immigration consequences. Subsection (b) addresses the right of the defendant to have time to consider the appropriateness of the plea in light of the advisement set forth in subsection (a), and the means of enforcing subdivision (a). Construing the meaning of the phrase “the court” in subsection (a) is not dependant on the meaning of that phrase as used in subsection (b). We do not reach the issue of how the phrase “the court” should be construed in subparagraph (b).
At this time we see no reason to depart from the holding of People v. Quesada, supra, 230 Cal.App.3d 525 , that the phrase “the court, ” “refer[s] to the tribunal in which defendant enters his plea” (Id. at pp. 535-536) and not solely the judge. Therefore, “the advisement referred to therein may be given through any of the numerous individuals acting on behalf of that tribunal, including the judge, counsel, the court reporter, or the clerk.” (Ibid.)
The trial court did not err in denying defendant’s motion to vacate despite the defendant having been advised of the immigration consequences of his plea by the prosecutor and not the judge. We, therefore, do not address the prosecution’s argument that defendant allegedly failed to establish diligence in bringing his motion.
Even assuming that the trial court erred by not itself giving the section 1016.5 advisement, defendant has failed to show prejudice. The purpose of the section 1016.5 advisement is to alert defendants prior to entering a plea of the adverse immigration consequences of a criminal conviction. Defendant acknowledged that, prior to entering his no contest plea, the prosecutor fully advised him of the adverse consequences of his plea. Having been fully advised, defendant was not prejudiced by the advisement being given by the prosecutor and not the trial judge.
DISPOSITION
The order is affirmed.
We concur: ARMSTRONG, Acting P. J., KUMAR, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.