Filed 12/17/14 P. v. Samayoa CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

FIDEL SAMAYOA,

Defendant and Appellant. B256993

(Los Angeles County Super. Ct. No. A375170)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Craig Richman, Judge. Affirmed. Law Office of Eduardo Paredes, Edua rdo Paredes for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Jessica C. Owen, Deputy Attorney Ge neral, for Plaintiff and Respondent.2 INTRODUCTION Defendant and appellant Fi del Samayoa appeals from the denial of his Penal Code section 1016.5 (section 1 016.5) motion to vacate his 1982 conviction for selling marijuana in violation of Health and Safety Code section 113 60. He contends that prior to pleading guilty to that o ffense, the prosecutor did not properly advise him of the immigration consequences of his plea. We affirm.

BACKGROUND 1 On January 29, 1982, defe ndant and appellant Fidel Samayoa pleaded guilty to selling marijuana. In advising defendant of the consequences of his guilty plea, the prosecutor stated: “I have to advise you as I have to advise any other defendant who is pleading guilty, that if you are not a citizen of the United Stat es, pleading gu ilty to this offense could result in your deportation or denial of reentry privileges and denial of citizenship and the denial of work privileges. [¶] Do yo u understand that those are possibilities if you are not a citizen of the Unite d States, and if you plead guilty to this

offense?” Defendant re sponded, “Yes.” On January 28, 2003, defendant moved, pursuant to Penal Code section 1203.4, 2 to vacate the guilty verd ict and dismiss the information re garding his 1982 conviction. The trial court granted the motion. On Au gust 19, 2013, defendant moved, pursuant to section 1016.5, to vacate his 1982 conviction arguing that he had not been advised of the immigration consequences of his guilty plea. The trial court denied the motion, finding that the prosecutor’s advisement of the immi gration consequences of defendant’s guilty plea substantially complied with section 1016.5.

1 We limit our recitation of facts to thos e relevant to defendant’s section 1016.5 motion.

2 Penal Code section 1203.4 authorizes relief to a person who has successfully completed probation by expunging the person ’s conviction from his or her record. ( People v. Martinez (2013) 57 Cal.4th 555, 560.) “That action, however, has no effect on the federal immigration conseque nces of his conviction.” ( Ibid. )3 DISCUSSION

The Trial Court Did Not Abuse Its Discre tion in Denying Defendant’s Section

1016.5 Motion to Vacate His 1 982 Conviction Although not entirely clear, defendant appear s to contend that the trial court erred in denying his section 1016.5 motion to vacate his 1982 co nviction because the prosecutor’s advisement about the immigra tion consequences of his guilty plea was

defective as it did not use section 1016.5’s exact language. Defendant also may contend that the prosecutor’s advisement was def ective because it incorre ctly suggested to defendant that his conviction “may” subject him to adverse immigr ation consequences instead of advising him that it “would” have such consequences. 3 The trial court did not abuse its discretion in finding that the pros ecutor’s advisement substantially complied with section 1016.5 and in denying defendant’s section 1016.5 motion. 4 Section 1016.5 provides in relevant part: “(a) Prior to acceptance of a plea of gu ilty or nolo contende re to any offense punishable as a crime under state law, excep t offenses designated as infractions 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 ad vised that conviction of the offense for which you have been charged may have the c onsequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the

United States. “(b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in li ght of the advisement as described in this

3 In his opening brief, defendant discusses Padilla v. Kentucky (2010) 559 U.S. 356, which concerns a claim of ine ffective assistance of counsel based on counsel’s failure to advise the defendant of the immigration cons equences of his plea. Defendant does not raise, however, an ineffective assi stance of counsel claim on appeal.

4 Because we hold that the trial court did not abuse its di scretion in denying defendant’s section 1016.5 motion, we need not address defendant’s claim of prejudice.4 section. If, after January 1, 1978, the court fails to advise the defe ndant as required by

this section and the defendant shows that co nviction of the offens e to which defendant pleaded guilty or nolo contendere may have the cons equences for the defendant of deportation, exclusion from admission to the United States, or deni al of naturalization pursuant to the laws of the Un ited States, the court, on de fendant’s motion, shall vacate the judgment and permit the defe ndant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a reco rd that the court provided the advisement required by this section, th e defendant shall be presumed not to have received the required advisement.” We review a trial court’s ruling on a secti on 1016.5 motion for abuse of discretion. ( People v. Superior Court ( Zamudio ) (2000) 23 Cal.4th 183, 192.) “To prevail on a motion brought pursuant to Penal Code secti on 1016.5, a defendant must establish: (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at th e time of the motion, more than a remote possi bility that the

conviction will have one or mo re of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisem ent, i.e., if properly advised, he or she would not have pleaded guilty or nolo contendere. ( Zamudio, supra, 23 Cal.4th at pp. 192, 199-200, 209.)” ( People v. Dubon (2001) 90 Cal.App. 4th 944, 951-952.)

Defendant contends that th e advisement he received—“if you are not a citizen of the United States, pleading guilty to this offense could result in your deportation or denial of reentry privileges and denial of citizenship and the denial of wo rk privileges”—failed to advise him in the “statutory language re quired under . . . [section] 1016.5” that his guilty plea would have the immi gration consequence of “exclu sion from admission to the United States.” If by this contention defendant is arguing that a section 1016.5 advisement must follow exactly that statute’ s language, the contention fails because “only substantial compliance is required under sect ion 1016.5 as long as the defendant is specifically advised of all three separate i mmigration consequences of his plea.” ( People v. Gutierrez (2003) 106 Cal.App.4th 169, 174 [re jecting the argument that “any variance from the literal language of the legislation requires a plea to be vacated”].) The5 advisement that defendant’s conviction for selling marijuana might have the immigration consequence that he would be denied “reen try privileges”—i.e., reentry into the United States—substantially complied with section 1016 .5’s requirement that he be advised that his conviction might result in his “exclusion from admission to the United States.” ( Ibid. & fn. 4 [“the phrase ‘denied re-entry’ is the le gal equivalent of ‘exc lusion of admission’; moreover, linguistically ‘denied re-entry’ is a more precise statement of the consequence”].) Defendant also appears to contend that the prosecutor’s advisement failed to comply with section 10 16.5 because it told defendant th at his guilty plea “may” rather than “would” have adverse immigration co nsequences. The statute mandates that a defendant be advised that his guilty plea “ may have the consequen ces of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Italics added .) Because section 1016. 5 expressly uses the word “may” and not “will,” the prosecutor pr operly advised defendant of the immigration consequences of his guilty plea . Accordingly, the trial cour t did not abuse its discretion in denying defendant’s section 1016.5 motion.6 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, Acting P. J.

We concur:

KRIEGLER, J.

GOODMAN, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.