Filed 2/27/13 P. v. Martinez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 Superi or Court of Los Angeles County. Leland H. Tipton, Judge. Affirmed.

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

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, De puty Attorneys General, fo r Plaintiff and Respondent.

_____________ ______________2 Agustine Martinez appeals from the trial cour t’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 da ted July 19, 2011, Martinez was charged with one count of oral copulation/sexual penetration of a ch ild 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 a rraignment on July 19, 2011. He subsequently retained priv ate counsel and changed his pl ea 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 tr anslated to Spanish by the court interpreter for him. He was also advised of the immigra tion 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, we re made “knowingly, understandingly, and explicitly made.” Martinez moved to withdraw his plea on Ja nuary 13, 2012, on th e 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 withdr aw 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 with out any type of immigration re lief. I entered this no contest plea without an understanding of what would happen to me.

1 All further section references are to th e Penal Code unless otherwise specified.3 “5. Moreover, my then-atto rney, Manuel Eli Gonzalez, before I made my plea to this Court, never fully informed me of the ch arges that were pending against me. Further, Mr. Gonzalez never reviewed any of the polic e reports with me prior to my plea on October 27, 2011, including my recorded in terview 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 ad vised him of his waivers. Nevertheless, he was too nervous that day to fu lly understand the immigration consequences of his plea.

He also maintained his innocence and claimed any incr iminating statements made to sheriff deputies were coerced and made under duress or trickery. Following a hearing on Febr uary 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 includ ed 206 days actual custody and 31 days good time/work tim e credit. Martinez timely filed hi s appeal with a certificate of probable cause.

DISCUSSION Martinez contends on appeal the trial c ourt erred when it denied his motion to withdraw his plea because he received ine ffective assistance of counsel and did not understand the immigration conse quences of his plea. We review the trial court’s denial of the motion to withdraw the plea for a buse 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 assist ance 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 in effective assistance of counsel, a defendant4 must show: (1) counsel’s pe rformance was deficient, in that it fell below an objective standard of reasonableness; and (2) the defi cient performance prejudiced defendant, i.e., he would have rejected the plea ba rgain 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 eviden ce his entitlement to relief. ( In re Resendiz (2001) 25 Cal.4th 230, 253, abro gated 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 amount s 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, su ch as whether counsel actually and accurately communicated the offe r to the defendant, whether the defendant was amenable to negotiating a plea bargain, whether the pros ecutor might ultimately have agreed to a

conviction that would have allowed the defendant to avoid adverse immigration consequences, the actual disparity between th e 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 th e 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 admi tted 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 di scussed them with my attorney. My in itials mean that I have read, understand and agree with what is stated in the paragraph. . . .” Gonzalez signed the same plea form, below a paragra ph indicating he reviewed the form with Martinez and explained to him the consequences of the plea.5 Likewise, Martinez has failed to present evidence of prejudice resulting from the ineffective assistance of counsel. He pres ented no evidence the prosecution was willing to agree to a plea that would allow him to a void subsequent deporta tion. Neither did he explain how he would have avoi ded conviction had he gone to trial. The record shows, instead, that the plea bargain allowed Martin ez 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).) Thou gh he claims they were made under duress, Martinez acknowledg es he “made incriminating statements” in an interview with Los Angele s County Sheriffs. Other th an a general declaration of innocence, Martinez makes no atte mpt to describe any defenses that were available to him or what evidence may ha ve exonerated him.

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

BIGELOW, P. J.

We concur:

RUBIN, J.

FLIER, J.