Filed 7/22/14 P. v. Sierra CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

 Plaintiff and Respondent,

v.

ERICK L. PAIZ SIERRA,

 Defendant and Appellant.

2d Crim. No. B251791

(Super. Ct. No. BA170377)

(Los Angeles County)

Erick L. Paiz Sierra appeals from an order denying his Penal Code section 

1016.51 motion to vacate his 1998 no contest plea to violating Health and Safety Code 

section § 11359 (possession of marijuana for sale). Appellant contends the court should 

have granted his motion on the ground that the court did not advise him fully of the 

immigration consequences of his plea as required by section 1016.5.

2 We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 1998, the prosecution filed an information charging appellant with 

violations of Health and Safety Code sections 11360, subdivision (a) (sale or 

transportation of marijuana) and 11359 (possession of marijuana for sale). Before 

appellant pled no contest to the latter charge, the court advised him on the record as 

follows: "[I]f you are not a citizen of the United States, by pleading guilty here, you 

 

1 All statutory references are to the Penal Code unless otherwise stated. 

2 The same court accepted appellant’s plea, and heard and denied his 1998 motion 

to withdraw it, and the recent motion to vacate it. 
2

subject yourself to deportation. It can affect your rights of naturalization and you can be 

denied re-entry or admission into the United States." The court inquired, "Do you and 

each of you understand each and all of the consequences as I have explained them?" 

Appellant responded, "Yes," and pled no contest to possession of marijuana for sale. The 

court sentenced him to state prison for 16 months, and dismissed the remaining count

"due to plea negotiation."

In 2013, appellant filed a motion to vacate his plea on the ground that the 

court accepted it without adequately advising him of its immigration consequences, as 

required by section 1016.5. The court denied his motion.3

DISCUSSION

Appellant contends the court erred by denying his motion to vacate his no 

contest plea. More specifically, he claims his plea is defective because the court accepted 

it without fully advising him of its immigration consequences, as required by section 

1016.5. The record belies his claim.

We review an order denying a section 1016.5 motion for abuse of 

discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) We must 

affirm "unless there is a clear showing of abuse of discretion." (People v. Shaw (1998) 

64 Cal.App.4th 492, 495-496.) 

Section 1016.5, subdivision (a) provides: "Prior to acceptance of a plea of 

guilty or nolo contendere to any offense punishable as a crime under state law, except 

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 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." "Subdivision (b) directs the 

court to vacate any plea taken without the advisement when the defendant shows that the 

 

3 The record reflects that appellant requested a certificate of probable cause, but 

does not indicate whether the court granted his request. Such a certificate 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, 960-961.)
3

plea may have the adverse consequences described by the statute." (People v. Gutierrez 

(2003) 106 Cal.App.4th 169, 173.) "[S]ubstantial, not literal, compliance with section 

1016.5 is sufficient." (Id., at p. 174.)

Appellant contends the court did not adequately advise him that his no 

contest plea could have the consequence of "exclusion from admission to the United 

States," as required by section 1016.5. We disagree. Before accepting appellant’s plea, 

the court advised him that he could be "denied re-entry or admission [into] the United

States." This advisement substantially complied with section 1016.5. (People v. 

Gutierrez, supra, 106 Cal.App.4th at p. 174.) The court did not abuse its discretion in 

denying appellant’s motion to vacate his plea.

Appellant also cites Padilla v. Kentucky (2010) 559 U.S. 356, in arguing 

the court failed to adequately advised him of the immigration consequences of his plea. 

Padilla is unavailing. It "was not a hard case in which to find deficiency," (id. at p. 357) 

where "counsel provided [the defendant] false assurance that his conviction would not 

result in his removal from this country." (Id. at pp. 368-369.) Further, "Padilla does not 

have retroactive effect" upon appellant’s conviction, which became final before the 

Supreme Court decided Padilla. (Chaidez v. U.S (2013) ___U.S.___ [133 S.Ct. 1103, 

1105, 1113].) 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.
4

Craig E. Veals, Judge

Superior Court County of Los Angeles

______________________________

Eduardo Paredes for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. 

Roadarmel, Jr., Supervising Deputy Attorney General, Steven D. Matthews, Supervising 

Deputy Attorney General, for Plaintiff and Respondent.