Filed 7/25/16 P. v. Cortez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

ESTELLA CORTEZ,

Defendant and Appellant.

 B266842

 (Los Angeles County

 Super. Ct. No. VA027180)

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

Fournier, Judge. Affirmed.

Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant.

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

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

Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

Estella Cortez appeals from the court’s order denying her motion to vacate her

1994 guilty plea. She contends that she received inadequate advisements about the 

immigration consequences of her guilty plea. We disagree and affirm.

FACTS AND PROCEDURE

An information filed in September 1994 charged appellant with one count of sale 

or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and one count of 

possession of marijuana for sale (Health & Saf. Code, § 11359).

On an afternoon in August 1994, police officers observed appellant drive away 

from an apartment with her brother in the passenger seat. They returned approximately 

an hour and a half later. Appellant’s brother removed a large plastic trash bag from the 

trunk of the car and carried it inside. Officers executed a search warrant on the apartment

and found a large quantity of marijuana inside two plastic trash bags and still more 

marijuana inside appellant’s bedroom. They also found scales and records reflecting “a 

pay/owe sheet.”

Appellant pled guilty to one count of sale or transportation of marijuana. The 

minute order of her plea hearing indicates the court advised her of the consequences of 

her plea, including the following advisement: “If you are not a citizen, you are hereby 

advised that a conviction of the offense for which you have 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.” Appellant also signed a plea 

form that contained the same advisement in writing, and she initialed next to this 

advisement.

On November 23, 1994, the court placed appellant on formal probation for three 

years on the condition that she serve 147 days in jail, and the court awarded her 147 days 

of custody credit.

On December 31, 2013, 19 years later, appellant filed a motion to reopen the case 

and vacate her conviction. In pertinent part, she argued the court did not advise her that 

pleading guilty to the 1994 offense might result in deportation, exclusion from the 

country, or denial of naturalization. Appellant’s declaration in support of the motion 
3

stated she was not a citizen of the United States, and the court and defense counsel did 

not advise her she “would be subject to mandatory deportation and no relief from 

removal” if she pled guilty. In a supplemental declaration filed later, she asserted she did 

not have a translator present at her plea hearing and therefore did not understand the 

advisements.

Appellant’s defense counsel from the 1994 proceedings testified at the hearing on 

the motion to vacate. Counsel did not have an independent recollection of representing 

appellant, but she recognized her signature on the plea form and saw from the minute 

orders that she represented appellant. Counsel would have reviewed each of the 

advisements on the plea form with appellant and had her initial them. Counsel did not 

speak Spanish. If she was unable to communicate with appellant directly because 

appellant spoke Spanish only, counsel would have gotten a Spanish interpreter. This was 

her custom and practice when dealing with non-English speaking clients, and she would 

have requested an interpreter for any court proceedings as well.

The court denied the motion to vacate. Appellant filed a timely notice of appeal.

DISCUSSION

Under Penal Code section 1016.5, before accepting a guilty plea, the court must 

administer the following advisement to the defendant: “If you are not a citizen, you are 

hereby advised that conviction of the offense for which you have 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.”1 (§ 1016.5, subd. (a).) The

defendant may vacate the guilty plea if the court fails to provide this advisement, and the 

defendant shows his or her conviction may result in deportation, exclusion from the 

country, or denial of naturalization. (§ 1016.5, subd. (b).) We review the court’s ruling 

on a motion to vacate under section 1016.5 for abuse of discretion. (People v. Superior 

Court (Zamudio) (2000) 23 Cal.4th 183, 192.)

 

1 Further undesignated statutory references are to the Penal Code.
4

The court did not err in denying appellant’s motion here. The record established

appellant received the required advisement verbatim in writing and verbally at the plea 

hearing. Prior defense counsel’s testimony also established that it was counsel’s custom 

and practice at the time to have requested and used a Spanish language interpreter, 

despite appellant’s assertion that she did not have the assistance of an interpreter. 

Appellant’s claim that she did not have an interpreter is further undermined by the fact 

that she initially declared she never received the advisements at all, and only later did she 

change course and assert that she did not understand the advisements because she lacked 

an interpreter. These credibility determinations were for the trial court.

Appellant nevertheless argues the legislative intent behind section 1016.5 and the 

United States Supreme Court’s decision in Padilla v. Kentucky (2010) 559 U.S. 356 

(Padilla) required the court to advise her of immigration consequences beyond those 

about which she was warned. Specifically, she asserts the court should have told her (1)

the guilty plea would result in mandatory deportation (because federal immigration law 

has changed since the Legislature enacted section 1016.5), and (2) relief such as 

cancellation of removal or asylum would be unavailable to her. These contentions are 

meritless.

Section 1016.5 declares the legislative intent of the statute is “to promote fairness 

to . . . accused individuals by requiring . . . that acceptance of a guilty plea or plea of nolo 

contendere be preceded by an appropriate warning of the special consequences for such a 

defendant which may result from the plea.” (§ 1016.5, subd. (d).) “The broad statement 

of intent in section 1016.5, subdivision (d), and its concern with fairness to the accused, 

does not override the section’s narrow requirements and precise remedy.” (People v. 

Chien (2008) 159 Cal.App.4th 1283, 1288.) The plain language of section 1016.5 

requires only that the court advise the defendant of the three major consequences of a 

plea. Appellant received precisely those advisements here.

Moreover, her contention that the court should have used mandatory language in 

the advisements, as opposed to telling her that she may be deported, misses the mark. 

She tells us that courts had discretionary authority to recommend against deportation at 
5

the time the Legislature enacted section 1016.5, and the United States Attorney General 

had the authority to grant discretionary relief from deportation, but Congress eliminated 

the Attorney General’s authority in 1996. Thus, at the time of appellant’s plea in 1994, 

mandatory deportation was not inevitable, because the discretion to grant relief from 

deportation still existed. (Padilla, supra, 559 U.S. at pp. 363-364.) A statement that 

deportation was mandatory would have been misleading.

What is more, Padilla has no bearing on this case. Padilla was an ineffective 

assistance of counsel case in which the United States Supreme Court held: “[C]ounsel 

must inform her client whether his plea carries a risk of deportation. Our longstanding 

Sixth Amendment precedents, the seriousness of deportation as a consequence of a 

criminal plea, and the concomitant impact of deportation on families living lawfully in 

this country demand no less.” (Padilla, supra, 559 U.S. at p. 374.) But appellant may 

not bring a section 1016.5 motion to raise an ineffective assistant of counsel claim 

(People v. Chien, supra, 159 Cal.App.4th at pp. 1285, 1290), and in any event, appellant 

fails to show counsel provided ineffective assistance. The record established that counsel

reviewed with appellant the advisement about immigration consequences on the plea 

form.

DISPOSITION

The order is affirmed.

FLIER, J.

WE CONCUR:

RUBIN, Acting P. J. GRIMES, J.