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Filed 3/9/16 P. v. Morales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

JOSE LUIS MORALES,

Defendant and Appellant.

E058677

(Super.Ct.No. RIF081595)

OPINION

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, 

Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

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

Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Jose Luis Morales appeals from an order denying his 

motion to vacate and/or withdraw his plea. We find no error and affirm.

I

STATEMENT OF THE CASE

On May 9, 1998, two groups of youths were “tagging” in a storm drain. The victim 

offered to sell defendant—a member of the other group—some marijuana, but defendant 

declined. Instead, he decided to take the marijuana from the victim by armed force.1

Defendant and one of his companions approached the victim and inquired about the 

marijuana. Defendant then pointed his handgun (a 38-caliber revolver) at the victim and 

demanded the marijuana. When the victim refused, defendant fired a warning shot in the 

air and told the victim that if he did not comply by the count of three, defendant would 

kill him. The victim defied defendant and defendant shot him several times. He then 

pointed the gun at two of the victim’s companions and appeared to attempt to fire it, but it 

did not discharge.

Although our record does not include an information, the felony complaint filed 

July 16, 1998, charged defendant with special circumstances murder (Pen. Code, § 190.2, 

subd. (a)(17)(A)2[in the course of robbery]) as well as personally discharging a firearm 

 

1

 Our statement of the facts of the case comes from the preliminary hearing 

transcript and primarily reflects admissions and statements made by defendant himself to 

investigators. 

2

 All subsequent statutory references are to the Penal Code.
3

causing great bodily injury (§ 12022.53, subd. (d)). Defendant was also charged with two 

counts of assault with a firearm with respect to having pointed his gun at the victim’s 

friends. (§ 245, subd. (a)(2).) It is apparent that all of these charges were amply 

supported by the evidence at the preliminary hearing.

On August 12, 1999, defendant entered a plea of guilty to first degree murder 

and admitted an enhancement under section 12022.5, subdivision (a)(1).3 The agreed 

term was 29 years to life. The felony plea form does not contain an interpreter’s 

statement—that is, there is a space for such a statement of translation, but it is blank. The 

form also included the information that “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.” Defendant initialed this space.

At the time of the plea, the trial court discussed with defendant the advantages of 

the plea, which allowed him to avoid the very real possibility of a sentence of life without 

possibility of parole. He then explained what the agreed sentence meant in terms of the 

time defendant would spend in prison and the factors which would bear on his chances 

for eventual release on parole. 

This colloquy was conducted in English and defendant consistently responded 

appropriately with “Yes, Your Honor,” “Yes, sir,” “No, sir,” and the like. Similar 

 

3

 The original designation of section 12022.53 was in error as the numbering had 

been changed.
4

appropriate responses were made during the actual taking of the plea; for example, when 

asked “how do you plead, sir?” defendant responded “Guilty, Your Honor.” Counsel 

joined in the plea after confirming to the court that he was satisfied that it was in his 

client’s best interest. 

It did not take long for the enormity of his situation to sink in on defendant, 

however, and in November of the same year, and prior to sentencing, defendant, 

represented by new counsel, filed a motion to withdraw his plea. This motion was 

supported only by the declaration of counsel, who stated on information and belief that at 

the time of the plea defendant was fatigued, under “emotional duress,” and depressed. 

Counsel also complained further that no Spanish interpreter was employed during the 

proceedings.

At the hearing on this motion, defendant was assisted by an interpreter. 

Defendant’s original attorney testified that all of his discussions with defendant were 

conducted in English and that defendant did not appear to have difficulty with the 

language. He testified that the issue of communicating in Spanish never came up.4 

Counsel also told the court that his review of defendant’s interviews with law 

enforcement personnel did not raise any concerns whatsoever about defendant’s English 

fluency or comprehension. His last word was an emphatic “There was absolutely no 

 

4

 When defendant was asked if he would waive the attorney-client privilege so 

that his previous attorney could testify, he evidently responded in Spanish. The trial

court observed drily “It’s the first time I have heard Mr. Morales say ‘Si, Senor. . . .’ It’s 

interesting.” 
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reason for me to think that there was any problem with respect to Mr. Morales 

understanding me.”

This motion was denied. The trial court went so far as to call the motion an 

apparent “fraud.”

The next relevant filing5 by defendant occurred on April 15, 2013, when he filed 

the motion involved in the current case, another motion to vacate the judgment but based 

upon the requirement of section 1016.5 that defendants entering pleas of guilty must be 

advised of the potential immigration consequences of that decision. In this motion 

defendant asserted that he was “[r]ecently” notified that federal officials had a “hold” on 

him, and had been asked if he “would like to be deported to complete the sentence in 

Mexico.” Defendant asserted that he had been in the United States since he was a month 

old and would never have entered his plea had he known that he would be deported.6

The motion was denied without additional proceedings. Defendant appeals.

II

DISCUSSION

 

5

 In the interim, defendant had made repeated challenges to the restitution fine 

imposed at sentencing.

6

 Defendant attached a Judicial Council habeas corpus form (Judicial Council 

Forms, form MC-275) which also raised issues of ineffective assistance of counsel, such 

as counsel’s failure to discover that he was not a citizen and that he was “mentally ill” 

due to childhood trauma. These claims are not raised here.
6

If a defendant establishes (1) that the advisements required by section 1016.5 

were not given, (2) that he or she is in fact subject to adverse immigration action, and 

(3) that he or she would not have entered the plea if the advisements had been given, 

section 1016.5 requires the court to permit withdrawal of the plea. (People v. Arriaga 

(2014) 58 Cal.4th 950, 957-958.) We review for abuse of discretion. (People v. Limon 

(2009) 179 Cal.App.4th 1514, 1517.)

As we have noted above, although the trial court did not refer to immigration

consequences when it actually took the plea, the plea form signed by defendant did

contain the required warnings, and defendant, by initialing the appropriate box, indicated 

that he understood that it might apply to him. Such a written provision of the 

advisements through a plea form is permissible. (People v. Ramirez (1999) 71 

Cal.App.4th 519, 522.) Hence, defendant’s basic premise clearly fails.

However, in his opening brief defendant (implicitly conceding that advisements 

were given) argues that he was inadequately advised in Spanish of the immigration 

consequences—that he needed an interpreter to understand the plea form. 

The only reference to this specific issue in the motion actually filed by defendant in 

the trial court came in the context of defendant’s complaint that his attorney(s) did not 

investigate his mental state and/or the ineffectiveness of previous counsel: “petitioner 

appeared with Aguilar [attorney number two] for the hearings where the only allegations 

made on petitioner’s behalf were that Fait [attorney number one] had pressured petitioner 

to accept the plea and that Fait never acquired an interpreter for petitioner for any of the 
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proceedings . . . .” (Italics added.) We observe that this is not a claim that defendant did 

not understand the advisements given or provided in English.7 

In fact we appreciate defendant’s evident personal recognition of the fact that his 

1999 motion to withdraw his plea was meretricious, and we have no difficulty in 

rejecting the attempt by appellate counsel to revive it. There is no evidence attached to 

the current motion to vacate which tends to establish that defendant was not competent in 

English at the time of his plea. In fact, there was virtually no such evidence in the record 

at the time of the 1999 motion to withdraw the plea and ample affirmative evidence that 

he was fluent in English. Defendant did not establish that the advisements were 

inadequate for linguistic reasons.

Defendant then relies on the assertion that he did not believe that the advisements 

applied to him. We note that defendant, in the motion he prepared, stated that he had 

lived in the United States since he was a month old. Nothing suggests that he believed he 

was born in this country or that he was a citizen not subject to deportation. In any event

relief under section 1016.5 is tied to whether the proper information was provided, not 

whether the defendant correctly analyzes it.8 (Cf. In re Resendiz (2001) 25 Cal.4th 230, 

 

7

 Indeed, the motion filed in the superior court sub silentio abandons any such 

claim because defendant repeatedly stresses that he informed his attorneys of certain facts 

and “explained” certain matters to them which they should have, but did not, investigate. 

Hence, he implicitly concedes that he was able to communicate with counsel in English.

8

 We note that nothing in the record indicates that defendant asked trial counsel 

about his immigration status, or that trial counsel was aware that he was not a native 

citizen. We express no view on what effect these factors might have in a proper case.
8

250 [defendant informed counsel that he was not a citizen and affirmatively asked about 

immigration consequences, receiving bad advice].)

We also briefly note that although the People were not asked to respond to the 

motion below and accordingly did not have the opportunity to rebut defendant’s “had I 

but known” claim, such a claim, if tested, would almost surely fail. Defendant’s 

deportability depends on the fact that he was convicted of an “aggravated felony,” which 

under federal immigration law includes any “crime of violence,” further defined as the 

use of physical force against the person or property of another. (18 U.S.C. § 16(a), 

8 U.S.C. §§ 1101(a)(43)(F) & 1227(a)(2)(A)(iii).) There is really no scenario under 

which defendant would not have been convicted of such an offense had he gone to trial. 

(By the time of his effort to withdraw his plea in the trial court, his codefendant had been 

convicted of first degree murder although he was not the actual shooter.) The most 

detailed and specific advice which defendant could have received was “You have the 

choice of having a chance for parole which very well might be in Mexico,

9 or staying in 

the United States for the rest of your life . . . in prison.” We expect that defendant would 

have chosen the former.

 

9

 Counsel could reasonably have also commented that by the time defendant was 

eligible for parole in the fairly distant future, immigration laws might have changed.
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III

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.