Filed 2/27/13 P. v. Martinez CA2/8 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

AGUSTINE MARTINEZ, 

 Defendant and Appellant. 

 B239550 

 (Los Angeles County 

 Super. Ct. No. VA120779) 

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Leland H. Tipton, Judge. Affirmed. 

 Karlin & Karlin, and Marc A. Karlin for Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. 

and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent. 

 

___________________________ 
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Agustine Martinez appeals from the trial court’s denial of his motion to withdraw 

his guilty plea. Martinez, who is not a United States citizen, asserts on appeal that he 

received ineffective assistance of counsel because he was not advised of the immigration 

consequences of his guilty plea. We affirm the trial court’s ruling. 

FACTS

 In a felony complaint dated July 19, 2011, Martinez was charged with one count 

of oral copulation/sexual penetration of a child under 10 and three counts of committing a 

lewd act upon a child. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a).)1

 Martinez was 

appointed a public defender and pled not guilty during the arraignment on July 19, 2011. 

He subsequently retained private counsel and changed his plea to no contest as to one 

count of committing a lewd act upon a child in exchange for a sentence of eight years in 

state prison. He signed an advisement of rights, waiver and plea form, which also 

required that he initial beside the warning that his “plea of guilty or no contest will result 

in . . . deportation, exclusion from admission or reentry to the United States, and denial of 

naturalization and amnesty.” This form was translated to Spanish by the court interpreter 

for him. He was also advised of the immigration consequences of his plea orally by the 

trial court. As a result, the trial court found that the waivers, including the one regarding 

the immigration consequences of his plea, were made “knowingly, understandingly, and 

explicitly made.” 

Martinez moved to withdraw his plea on January 13, 2012, on the ground that he 

failed to understand the immigration consequences of his plea at the time he made it. In a 

supporting declaration, Martinez stated: 

“4. I am making this request to withdraw my no contest plea because I was not 

aware, at the time of making said plea, that the plea would mean I would be ineligible to 

stay in the United States without any type of immigration relief. I entered this no contest 

plea without an understanding of what would happen to me. 

 

1 All further section references are to the Penal Code unless otherwise specified. 
3

“5. Moreover, my then-attorney, Manuel Eli Gonzalez, before I made my plea to 

this Court, never fully informed me of the charges that were pending against me. Further, 

Mr. Gonzalez never reviewed any of the police reports with me prior to my plea on 

October 27, 2011, including my recorded interview with deputies of the Los Angeles 

County Sheriff’s Department. Additionally, Mr. Gonzalez never informed me that I 

would be subject to a term of eight years in state prison due to my plea. Moreover, Mr. 

Gonzalez did not discuss my possible defenses to the charges filed against me prior to the 

taking of my plea.” 

Martinez admitted that he did sign the plea form, which was translated into 

Spanish for him, and that the court orally advised him of his waivers. Nevertheless, he 

was too nervous that day to fully understand the immigration consequences of his plea. 

He also maintained his innocence and claimed any incriminating statements made to 

sheriff deputies were coerced and made under duress or trickery. 

Following a hearing on February 6, 2012, his motion was denied. Judgment was 

entered on February 21, 2012, reflecting a sentence of eight years in state prison. He was 

given a total credit of 237 days, which included 206 days actual custody and 31 days 

good time/work time credit. Martinez timely filed his appeal with a certificate of 

probable cause. 

DISCUSSION

Martinez contends on appeal the trial court erred when it denied his motion to 

withdraw his plea because he received ineffective assistance of counsel and did not 

understand the immigration consequences of his plea. We review the trial court’s denial 

of the motion to withdraw the plea for abuse of discretion and find no error. (People v. 

Fairbank (1997) 16 Cal.4th 1223, 1254.) 

A defendant may seek to withdraw a plea of guilty for good cause shown at any 

time before judgment or within six months after an order granting probation is made if 

entry of judgment is suspended. (§ 1018.) Ineffective assistance of counsel may 

constitute good cause to set aside a plea. (In re Vargas (2000) 83 Cal.App.4th 1125, 

1142.) In order to prevail on a claim of ineffective assistance of counsel, a defendant 
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must show: (1) counsel’s performance was deficient, in that it fell below an objective 

standard of reasonableness; and (2) the deficient performance prejudiced defendant, i.e., 

he would have rejected the plea bargain and insisted on a trial. (Strickland v. Washington

(1984) 466 U.S. 668, 690, 694; Hill v. Lockhart (1985) 474 U.S. 52, 58-59.) It is the 

defendant’s burden to prove by a preponderance of the evidence his entitlement to relief. 

(In re Resendiz (2001) 25 Cal.4th 230, 253, abrogated on another ground in Padilla v. 

Kentucky (2010) 559 U.S. 356, ___;130 S.Ct. 1473, 1484 (Padilla).) 

The Supreme Court has held that where the deportation consequence of a guilty 

plea is clear, defense counsel has a duty to correctly advise the defendant of those 

consequences and a failure to do so amounts to deficient assistance of counsel under 

prevailing professional standards. (Padilla, supra, 130 S.Ct. at pp. 1483-1485.) 

Prejudice, i.e., a defendant’s assertion that he would not have pled guilty must be 

corroborated independently by objective evidence, such as whether counsel actually and 

accurately communicated the offer to the defendant, whether the defendant was amenable 

to negotiating a plea bargain, whether the prosecutor might ultimately have agreed to a 

conviction that would have allowed the defendant to avoid adverse immigration 

consequences, the actual disparity between the sentence offered in the bargain and the 

one risked by going to trial, and the probable outcome of a trial had once been held. (In 

re Resendiz, supra, 25 Cal.4th at p. 253; In re Alvernaz (1992) 2 Cal.4th 924, 945.) 

The record clearly reflects Martinez was advised of the immigration consequences 

of his plea. The trial court orally informed Martinez that if he was not a citizen of the 

United States, his plea would “cause [him] to be deported, denied re-entry and denied 

naturalization in this country.” In the plea form that Martinez admitted was translated to 

him, he placed his initials in the box next to an advisement of the same immigration 

consequences. Martinez signed that plea form indicating “I have read and initialed each 

of the paragraphs above and discussed them with my attorney. My initials mean that I 

have read, understand and agree with what is stated in the paragraph. . . .” Gonzalez 

signed the same plea form, below a paragraph indicating he reviewed the form with 

Martinez and explained to him the consequences of the plea. 
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Likewise, Martinez has failed to present evidence of prejudice resulting from the 

ineffective assistance of counsel. He presented no evidence the prosecution was willing 

to agree to a plea that would allow him to avoid subsequent deportation. Neither did he 

explain how he would have avoided conviction had he gone to trial. The record shows, 

instead, that the plea bargain allowed Martinez to avoid a potential life sentence in 

exchange for eight years in state prison. Martinez faced one count of oral 

copulation/sexual penetration of a child under 10, which carries a term of 15 years to life, 

and three counts of committing a lewd act upon a child, which each carry a maximum 

sentence of eight years. (§§ 288.7, subd. (b), & 288, subd (a).) Though he claims they 

were made under duress, Martinez acknowledges he “made incriminating statements” in 

an interview with Los Angeles County Sheriffs. Other than a general declaration of 

innocence, Martinez makes no attempt to describe any defenses that were available to 

him or what evidence may have exonerated him. 

DISPOSITION

The order denying Martinez’s motion to withdraw his plea is affirmed. 

 BIGELOW, P. J. 

We concur: 

 RUBIN, J. 

 FLIER, J.