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Filed 7/8/16 P. v. Ramirez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

VENTURA LOPEZ RAMIREZ,

Defendant and Appellant.

E063048

(Super.Ct.No. RIF1407176)

OPINION

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, 

Judge. Affirmed.

Zulu Ali and Mohammad H. Iranmanesh for Defendant and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Scott C. 

Taylor, and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and 

Respondent.

Defendant and appellant Ventura Lopez Ramirez appeals the denial of his 

postjudgment motion to vacate a 2014 conviction for felony spousal abuse. Defendant 
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contends that he was not properly advised of the immigration consequences of his guilty 

plea. (Pen. Code, § 1016.5.1) We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

On June 4, 2014, defendant was charged with one count of felony spousal abuse 

(§ 273.5, subd. (a)) and one count of misdemeanor battery on a spouse (§ 243, subd. 

(e)(1)). On July 10, 2014, defendant pled guilty to felony spousal abuse and the other 

count was dismissed. Prior to pleading guilty, defendant initialed numerous boxes on the 

plea form, including the following:

“B. CONSEQUENCES OF PLEA (1 through 5 apply to everyone): [¶] . . . [¶] 

4. If I am not a citizen of the United States, I understand that this conviction 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. [¶] . . . [¶] C. DEFENDANT’S 

STATEMENT: [¶] . . . [¶] 4. I have had adequate time to discuss with my attorney (1) 

my constitutional rights, (2) the consequences of any guilty plea, and (3) any defenses I 

may have to the charges against me.”(Original boldface.)

At the end of the plea form, defendant signed on the line designated for the 

defendant, which stated immediately above the signature line: “I have read and 

understand this entire document. I waive and give up all of the rights that I have 

initialed. I accept this Plea Agreement.” Defendant’s attorney then signed on the 

signature line designated for the defense counsel, which stated immediately above the 

 

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 All further statutory references are to the Penal Code unless otherwise indicated.
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signature line: “I am the attorney for the defendant. I am satisfied that (1) the defendant 

understands his/her constitutional rights and understand[s] that a guilty plea would be a 

waiver of these rights; (2) the defendant has had an adequate opportunity to discuss 

his/her case with me, including any defenses he/she may have to the charges; and (3) the 

defendant understands the consequences of his/her guilty plea. I join in the decision of 

the defendant to enter a guilty plea.” Lastly, an interpreter signed the plea form on the 

signature line designated for an interpreter, which stated immediately above the signature 

line: “Having been duly sworn, I have translated this form to the defendant in the 

Spanish language. The defendant has stated that he/she fully understood the contents of 

the form prior to signing.”

Immediately before accepting the plea, the trial court, via a translator, advised 

defendant of the “charges and consequences of his/her plea and statutory sentencing,” 

and found that defendant “has the ability to understand and does understand his/her 

constitutional rights.” The trial court placed defendant on probation for three years.

On August 15, 2014, the Department of Homeland Security served defendant with 

a notice to appear before an immigration judge for removal from the United States. On 

October 15, 2014, in an attempt to fight the removal proceedings, defendant moved to 

withdraw his guilty plea on the grounds his counsel “failed to research and properly 

inform [him] of the deportation consequences resulting from a plea of guilty.” His 

declaration faults both his counsel the trial court for not properly advising him of the 

immigration consequences of his plea. He declared that it “was not until I was taken into 

custody by Immigration and Customs Enforcement that I realized the immigration 
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consequences of the plea in this case.” On January 13, 2015, the trial court denied the 

motion.

On March 10, 2015, defendant filed a notice of appeal and a request for a 

certificate of probable cause. The notice stated that the appeal challenged the validity of 

the plea. The request for a certificate of probable cause related that the basis for the 

appeal was that the trial court failed to advise defendant regarding the immigration 

consequences of his plea. The trial court denied the request for a certificate of probable

cause and notified defendant that his notice of appeal was deemed “inoperative.” 

Subsequently, defendant filed an amended notice of appeal, which stated that the appeal 

“is based on the sentence or other matters occurring after the plea that do not affect the 

validity of the plea,” and “challenges the validity of the plea.” The request for certificate 

of probable cause again asserted that the trial court failed to advise defendant regarding 

the immigration consequences of his plea. The trial court denied the request for a 

certificate of probable cause; however, the appeal proceeded. Defendant’s sole issue on 

appeal is whether his trial counsel’s failure to advise him of the immigration 

consequences of his guilty plea constituted inadequate assistance.

II. DISCUSSION

The Attorney General argues that the appeal should be dismissed, because 

defendant failed to obtain a certificate of probable cause pursuant to section 1237.5. We 

disagree. A certificate of probable cause is not required for an appeal from the denial of a 

motion to vacate under section 1016.5. (People v. Arriaga (2014) 58 Cal.4th 950, 955, 

958-960.) The Attorney General argues that the appeal should be dismissed because 
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defendant failed to obtain a certificate of probable cause pursuant to section 1237.5. We 

disagree. A certificate of probable cause is not required for an appeal from the denial of a 

motion to vacate under section 1016.5. (People v. Arriaga (2014) 58 Cal.4th 950, 955, 

958-960 [defendant is not required to obtain a certificate of probable cause before 

appealing the denial of a motion to vacate a conviction based upon allegedly inadequate 

advisement of immigration consequences of a plea].) Although defendant labeled his 

motion as a “MOTION TO WITHDRAW GUILTY PLEA” and references section 1018, 

instead of section 1016.5, we consider this to be a difference without a distinction: 

defendant contends that both his counsel and the trial court failed to properly advise him 

of the immigration consequences triggered by his plea.

“[T]he right to appeal a trial court’s denial of a motion to vacate a conviction 

under section 1016.5 is authorized by section 1237’s subdivision (b). Unlike section 

1237’s subdivision (a), the right of appeal authorized by that section’s subdivision (b) is 

not limited by section 1237.5. Section 1237’s subdivision (b) simply says that an appeal 

may be taken by the defendant ‘[f]rom any order made after judgment, affecting the 

substantial rights of the party.’” (Arriaga, supra, 58 Cal.4th at p. 960.) “Because it is 

section 1237’s subdivision (b) that authorizes an appeal from a trial court’s order denying 

a section 1016.5 motion to vacate a conviction [citation], and that subdivision does not 

condition the right to appeal on first obtaining a certificate of probable cause, defendant 

here was not required to obtain a certificate of probable cause before challenging the 

denial order on appeal.” (Ibid., fns. omitted.)
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On the merits, the trial court did not abuse its discretion in denying the motion. 

(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) “To prevail on a 

motion to vacate under 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. [Citations.]” (People v. Totari

(2002) 28 Cal.4th 876, 884.) The record demonstrates that defendant was properly 

advised by the trial court that immigration consequences may follow his plea.

Notwithstanding the above, defendant contends that the court’s advisement does 

not replace advice required by his counsel, and thus, it is insufficient to deem him

adequately advised and warned. However, “[s]ection 1016.5 addresses only the duty of 

trial courts to advise the defendant of the immigration consequences of the plea, and it 

empowers the court to vacate a conviction and set aside a plea only for the court’s failure 

to fulfill that duty. It does not address any duty that defense counsel may have to provide 

such advice, nor does it empower the court to vacate a conviction or set aside a plea for 

counsel’s failure to fulfill his or her duty in that regard. For that reason, section 1016.5 

does not provide the trial court with jurisdiction to address a claim that a defendant was 

deprived of the effective assistance of counsel by counsel’s failure to fully advise him or 

her of the immigration consequences of a guilty plea. [Citation.]” (People v. Aguilar

(2014) 227 Cal.App.4th 60, 71 (Aguilar).)
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“The fact that [defendant’s] motion does not entitle him to relief under section 

1016.5 does not end the inquiry. The duties that defense counsel owes to a noncitizen 

criminal defendant client may be shown to involve providing his or her client with 

counsel’s own advice as to the consequences of a plea, even when the court has provided 

the advice required by section 1016.5. [Citation.] The California Supreme Court [has] 

held that a defendant can pursue a claim for relief for ineffective assistance of counsel, 

based on counsel’s misadvice regarding immigration consequences, notwithstanding that 

the trial court had properly advised the defendant under section 1016.5. (In re Resendiz

[(2001) 25 Cal.4th 230], 240–242.)

[2]

‘[T]hat a defendant may have received valid 

section 1016.5 advisements from the court does not entail that he has received effective 

assistance of counsel in evaluating or responding to such advisements.’ [Citation.]

Constitutionally adequate assistance ‘“must be determined by a standard bottomed on the 

Sixth Amendment of the United States Constitution and article I, section 15 of the 

California Constitution.”’ [Citation.] Therefore ‘[i]n any case presenting an 

ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was 

reasonable considering all the circumstances.’ [Citation.]” (Aguilar, supra, 227 

Cal.App.4th at pp. 71-72, fns. omitted.)

In this appeal, defendant’s claim of ineffective assistance of counsel fails. A 

defendant claiming ineffective assistance of counsel must show not only that counsel’s 

performance fell below an objective standard of reasonableness under prevailing 

 

2

 In re Resendiz was abrogated on another ground in Padilla v. Kentucky (2010) 

559 U.S. 356, 370-371.
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professional norms, but also must show prejudice. (Strickland v. Washington (1984) 466 

U.S. 668, 694; Padilla v. Kentucky, supra, 559 U.S. at p. 366.) The record is devoid of 

any evidence showing that defendant’s counsel affirmatively misadvised him. There is 

no declaration in the record from his counsel to attest to defendant’s self-serving 

statements. In addition, neither defendant nor his counsel testified at the motion to vacate 

hearing in January 2015. Defendant’s self-serving assertions that counsel did not 

properly advise him and that he otherwise would not have pled as he did are plainly 

insufficient to establish ineffective assistance. (In re Alvernaz (1992) 2 Cal.4th 924, 938 

[defendant’s self-serving statement that he would have acted differently but for counsel’s 

ineffective assistance “must be corroborated independently by objective evidence”].)

Defendant’s claim of ineffective assistance of counsel does not arise in a context 

in which the trial court observed counsel’s performance during the course of a jury trial. 

(Cf. People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) His claim is that, in receiving 

advice from his counsel, he did not get adequate advice or that he was misadvised 

concerning the immigration consequences of his plea. Because defendant’s contention is 

based on a factual showing akin to a petition for habeas corpus, the issue “is more 

appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 

15 Cal.4th 264, 266-267 [claim that trial counsel rendered ineffective assistance in failing 

to make a motion to suppress evidence was not suitable for resolution on appeal because 

the record did not show the reasons for counsel’s failure to do so].)

In sum, the trial court properly denied the motion to vacate the judgment and 

withdraw the plea.
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III. DISPOSITION

The trial court’s order denying the motion to vacate defendant’s 2014 conviction is 

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORT

HOLLENHORST

 Acting P. J.

We concur:

MILLER

 J.

SLOUGH

 J.