Filed 6/23/16 P. v. Morales CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ARNULFO AQUINO MORALES,

Defendant and Appellant.

 B264358

 (Los Angeles County

 Super. Ct. No. VA041282)

APPEAL from an order of the Superior Court of Los Angeles County, Lori Ann 

Fournier, Judge. Affirmed.

Cabrera & Hart, Michael S. Cabrera, Kristen M. Hart, Tracy L. Conaway for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and 

Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

________________
2

Appellant Arnulfo Morales appeals from an order denying his motion to vacate his 

1997 felony conviction for a violation of Penal Code section 237.5, obtained pursuant to 

a plea agreement. Morales contends that the superior court abused its discretion in 

concluding that he was properly advised of the potential immigration consequences of his 

plea. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 14, 1997, the People filed a felony complaint against Morales, 

charging him with one count of willful infliction of corporal injury resulting in a 

traumatic condition upon a victim who is the offender’s spouse, former spouse, 

cohabitant or former cohabitant, fiancé, or parent of the offender’s child. (Pen. Code, 

§ 237.5, subds. (a), (b).) The complaint further alleged as an enhancement that appellant 

personally used a deadly and dangerous weapon, a knife (Pen. Code, § 12022, subd. 

(b)(1)), and that as a result the offense was alleged to be a serious felony (Pen. Code, 

§ 1192.7, subd. (c)(23)). He faced a potential sentence of five years in prison.

On April 23, 1997, Morales pleaded no contest to one count of felony domestic 

violence. He was sentenced to time served, totaling 90 days, and placed on formal 

probation for three years. 

On February 1, 2013, Morales received a notice of hearing regarding removal 

proceedings, which was scheduled for June 10, 2014.

Morales filed his motion to vacate the plea on January 26, 2015, alleging that he 

was not informed by his counsel of the immigration consequences of the plea. In the 

motion he argues that “had [he] been informed that he would be forced to leave the only 

home that he has known for over 20 years, and abandon his family, he would have 

obtained Counsel regarding his immigration consequences.” 

In opposition to the motion, the People produced a written waiver executed at the 

time of Morales’s plea pursuant to In re Tahl (1969) 1 Cal.3d 122, which contains the 

signatures of Morales and his counsel, Anna Armenta-Rigor. The Tahl waiver contains 

initials in certain boxes, while other boxes are marked with an “X” to indicate that they 

do not apply. Box 10 on the waiver form states that “I understand that if I am not a 
3

citizen of the United States, the conviction for the offense 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.” The electronic version of the 

document filed with the superior court showed a mark in box 10 that was not, based on 

the scanned version, clearly a set of initials or an “X.” 

In opposition to the motion to vacate the plea, the People also provided “a print 

out from what appears to be an internal system, as it does not look like a standard minute 

order or docket report and was not available to defense counsel through a records search 

via archives.” The opposition to the motion to vacate the plea, including the minute 

order, was not provided as part of the record made available to this Court. At the hearing, 

Deputy District Attorney Franco Baratta stated that “the minutes of the court indicat[e] 

that the defendant was advised pursuant to [Penal Code section] 1016, verbatim, of the 

rights that are required to be given to him prior to a plea.” 

The superior court, after reviewing the executed waiver and the minute order, 

found that the mark in the box regarding immigration consequences “definitely doesn’t 

look like an X like the boxes that are crossed off.” The superior court concluded that 

“unless there is some reason for me to believe that the minute order isn’t correct, along 

with the Tahl waiver, I’m not inclined to grant the motion.” The motion was denied 

pursuant to a minute order entered on April 21, 2015. Morales filed his notice of appeal 

on May 14, 2015.

DISCUSSION

An order of a trial court denying a motion to vacate a plea pursuant to Penal Code 

section 1016.5 is an appealable order, which is reviewed for abuse of discretion. (People 

v. Totari (2002) 28 Cal.4th 876, 887; People v. Superior Court (Zamudio) (2000) 23 

Cal.4th 183, 192.) A reviewing court “must adopt the trial court’s factual findings if 

substantial evidence supports them.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)

Penal Code section 1016.5 requires that, before accepting a plea of guilty or nolo 

contendere to any criminal offense, the trial court must advise the defendant that if he or 

she is not a United States citizen, “conviction of the offense for which [the defendant has]
4

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.” (Pen. 

Code, § 1016.5, subd. (a).) The statute allows the defendant to move to vacate the 

judgment if the trial court fails to give the required advisements, and states that “[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.” (Pen. Code, § 1016.5, 

subd. (b).)

In order to prevail on a motion to vacate pursuant to Penal Code 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 

nonadvisement.” (People v. Totari, supra, 28 Cal.4th at p. 884.)

Morales contends that he “does not recall the court or any of the attorneys present 

informing him that he would be deported, excluded from admission to the United States 

and denied naturalization at any point in the future as a result of his conviction.” He 

argues that his contention cannot be refuted by the People because the transcript of the 

hearing in which he pleaded no contest was destroyed pursuant to Government Code 

section 69955, that the minute order alone is insufficient to establish that the advisements 

were properly given, and that it is unclear whether box 10 on the Tahl waiver is initialed. 

He also argues that a Spanish language interpreter did not sign the form.

A court “may rely upon a defendant’s validly executed waiver form as a proper

substitute for a personal admonishment.” (People v. Panizzon (1996) 13 Cal.4th 68, 83.) 

Even in the absence of advisement by the trial court, “[o]nly if in questioning the 

defendant and his attorney the trial court has reason to believe the defendant does not 

fully comprehend his rights, must the trial court conduct further canvassing of the 

defendant to ensure a knowing and intelligent waiver of rights.” (People v. Castrillon 

(1991) 227 Cal.App.3d 718, 722.) At the hearing, the superior court, reviewing the Tahl

waiver and comparing the markings to similar markings in other boxes, found that the 
5

marks on the form appear to be Morales’s initials rather than an “X.” Accordingly, since 

Morales executed the form containing the requisite Penal Code section 1016.5 

advisement, which was also acknowledged by his defense counsel, the form alone was 

sufficient to rebut the presumption of section 1016.5 that he was not adequately advised 

of the immigration consequences of his plea. In addition to the plea agreement form, 

however, the internal minute order of the court states that Morales was advised of the 

potential immigration consequences of his plea.

The trial court, based on its consideration of the minute order and the Tahl waiver, 

concluded that the People satisfied their burden to overcome the statutory presumption 

that Morales did not receive the required advisement. The trial court properly considered 

the minute order and made a factual finding regarding Morales’s initials on the waiver 

and his signature, along with the signature of his counsel indicating that she explained the 

waivers to Morales. As such, the trial court did not abuse its discretion in denying the 

motion to vacate the plea. Accordingly, we affirm.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

JOHNSON, J.