Filed 5/23/13 P. v. Denys CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JOAQUIN GUSTAVO DENYS, Defendant and Appellant. H038212 (Santa Clara County Super. Ct. No s. C9929139 , C9928517)

Defendant Joaquin Gustavo Denys appeals from the trial court’s order denying his motion to vacate judgment. In 1999, defendant pl eaded nolo contendere to two counts of possession for sale of marijuana (Health & Saf. Code, § 11359) and one count of possession for sale of methamphetamine ( id . § 11378). Defendant argues that he was not sufficiently advised of the immigration conse quences of his plea pursuant to Penal Code
section 1016.5. 1 For the reasons set forth below, we find that the trial court that took defendant’s plea adequately and substantially complied with the requirements of section 1016.5, and we affirm the judgment.
F ACTUAL AND P ROCEDURAL B ACKGROUND Defendant ’ s Personal Background
Defendant was born in El Salvador. When defendant was a child, his father
worked for the El Salvadoran government transporting soldie rs to and from battle during the government’s war against the guerillas. In May 1981, defendant and his family fled

1 Further unspecified statutory re ferences are to the Penal Code.2 to Mexico due to the ongoing violence. The family briefly returned to El Salvador in October 1981. In December 1981, defendant a nd his family lawfully immigrated from El
Salvador to the United States. Defendant has a daughter wh o is a citizen of the United States by birth. His mother is a naturali zed citizen, and his father remains a lawful permanent resident. Defendant has returned to El Salvador for visits, each of which have not lasted more than 15 days. The Underlying Offenses On May 4, 1999, two San Jose Police Department officers stopped a vehicle driven by defendant for failing to come to a complete stop at a stop sign. The officers discovered that defendant’s passenger was on probation for narcotics transportation, and
conducted a search of the vehicle after defenda nt gave his consent. Defendant then gave officers consent to search his person, a nd was discovered to be in possession of marijuana. Defendant was arrested and tran sported to the San Jose preprocessing center where he was strip searched. There, officers found a white bag containing methamphetamine on defendant. On May 12, 1999, the officers obtained a se arch warrant for the residence to which the vehicle was registered. At the reside nce, officers found marijuana in the master bedroom where defendant resided, a pay-ow e sheet, and a total of $4,100 in cash on
defendant and in two locations in the master bedroom. Th e police report indicated that defendant, out of his own vo lition, told officers that the marijuana belonged to him.
The Plea Defendant entered a plea of no contest to two counts of possession for sale of marijuana (Health & Saf. Code, § 11359) and a count of possession for sale of methamphetamine ( id . § 11378) on Ju ne 17, 1999. 2 Defendant further admitted the

2 Defendant pleaded no contest in two cases that were ultimately consolidated. In case No. C9928517, defendant pleaded nolo cont endere to a count of possession for sale (continued)3 allegation that he was out on ba il when he committed the mari juana possession crime. In a declaration in support of his motion to withdr aw, defendant stated th at his trial attorney failed to advise him of any potential immi gration consequences, and he was never informed that federal law would likely ma ke it mandatory that a conviction for the pleaded offenses would result in deportation. 3 When the trial court took his plea, it stated on the record that: “Turning to the consequenc es of your plea. You are advised that if you are not a citizen, conviction of these offenses may have the consequences of deportation, exclusion from ad mission or denial of natura lization.” Defendant then acknowledged that he read and understood English, that th ere was nothing the trial court said that he did not understand, and that he did not have any further questions. The trial court then placed defendant on probation for a period of three years subject to various terms and conditions, includ ing that he serve nine months in county jail. Deportation Proceedings In 2008, upon returning from a trip to Mexico, defendant was pulled aside by customs immigration officials and was advi sed he had a court date for deportation proceedings stemming from his 1999 convictions . In June 2008, defendant received a written notice of removal procee dings in federal immigration court. Defendant hired an

of marijuana (Health & Saf. Code, § 11359 ) and a count of possession for sale of methamphetamine ( id . § 11378). In case No. C992 9139, defendant pleaded nolo contendere to a count of posse ssion for sale of marijuana ( id . § 11359), and further admitted an enhancement that the crime wa s committed when he was out on bail (§ 12022.1). 3 On appeal, defendant does not raise any claims of ineffective assistance of counsel.4 attorney, and thereafter applied for asylum and withholding from removal. 4 Despite the efforts made by defendant’s attorney, defe ndant was ordered removed from the country in 2010. Defendant subsequently appeal ed the ruling of the immigration court. 5
Motion to Withdraw Plea and the Trial Court ’ s Ruling In February 2012, defendant filed a moti on to withdraw his 1999 plea pursuant to section 1016.5. Defendant argued that the court taking the plea failed to advise him of all the immigration consequences as provided by secti on 1016.5 since it fail ed to specifically state that the consequences of deportation, exclusion from admission, and denial of naturalization, were from the United States. Furthermore, defendant argues that there was more than a remote possibility of advers e immigration consequences as a result of the plea, and that he was prejudiced by the court’s failure to provide for a complete
advisement. The trial court held a hearing on the matte r on February 21, 2 012. After defendant and the People made their respective argumen ts, the court denied defendant’s motion to withdraw his plea. In coming to its conclusi on, the court stated defendant “argued that a lay person would not un derstand when being told that his or her conduct or choice could result in deportation that it m eans from this country,” and th at defendant was “suggesting that if that person is told that [they’ll] be denied citizenship , that they wouldn’t
understand it means in this countr y, or that told they would no t be allowed to reenter, that it means from this country.” The court dete rmined that it could not come to that conclusion, “even more so in the case of someone [like defendant] who has [an] extensive international history.” The court th en reasoned that it could not “find that the

4 The counsel that represented defendant for his immigration issues is not defendant’s appellate counsel, nor the origin al trial counsel repr esenting him during his plea in 1999. 5 There is no indication in the record whether or not this appeal has been successful, or if it has been resolved.5 [trial court that took defendant ’s plea] failed to give [defe ndant] the necessary and proper advisement simply because of the omission of the reference to the United States.” Defendant filed a timely notice of appeal over the trial court’s judgment on April 18, 2012, after obtaining a certificate of probable cause.
D ISCUSSION Defendant’s main contentions on appeal are that the trial c ourt that took his plea in 1999 failed to satisfy the requirements of sec tion 1016.5, and that the trial court in 2012
that reviewed and denied his motion to vaca te his judgment and withdraw his plea abused
its discretion. Standard of Review A motion to vacate a judgment is an appealable order. ( People v. Dubon (2001) 90 Cal.App.4th 944, 950.) We review the tr ial court’s order denying defendant’s motion to vacate judgment for a buse of discretion. ( People v. Superior Court ( Zamudio ) (2000) 23 Cal.4th 183, 192 ( Zamudio ).) The Trial Court Taking th e Plea Substantially Comp lied with Section 1016.5 Defendant argues that the trial court that took his plea failed to comport with the requirements of section 1016.5. As described ante , the trial court in 1999 informed defendant that “[y]ou are advised that if you ar e not a citizen, conviction of these offenses may have the consequences of deportation, exclusion from admission or denial of
naturalization.” This advisement deviates from the language of section 1016.5. Section 1016.5 provides that: “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense pu nishable as a crime under state law, except offenses designated as infractions u nder state law, the court sh all administer the following
advisement on the record to the defendan t: [¶] 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 deportati on, exclusion from admission to the United States , or denial of6 naturalization pursuant to the laws of the United States .” 6 (Italics added.) The difference between the actual advisement given by the cour t and the language in section 1016.5 is that here the court failed to specifically refe rence the United States in its recitation.
Defendant takes issue with th is omission, and argues that exclusion of the phrases “United States” and “pursuant to the laws of the United States” renders the trial court’s advisement inadequate. We disagree with this assessment. The California Supreme Court has implie d that compliance w ith section 1016.5
does not mandate a verbatim recitation of the st atute, so long as su bstantial compliance is achieved and the defendant in question is advised of all three possible immigration consequences as set fort h in section 1016.5. ( Zamudio , supra , 23 Cal.4th at p. 208.) In
Zamudio , the California Supreme Court contempl ated a situation where the defendant was not advised of the possibility of “exclusi on from admission to the United States” (§ 1016.5, subd. (a)), but was advised of the two other consequences of immigration, deportation and denial of naturalization. ( Zamudio , supra , at p. 207.) In that situation, the Supreme Court recognized that if defe ndant’s circumstances, at the time of his original plea, did not actually allow for the possibility of the consequence of exclusion from the United States, “the advisements he received concer ning deportation and
naturalization would have b een in substantial compliance with the requirements of section 1016.5.” ( Id. at p. 208.)

6 The Legislature specifically articulated that it enacted section 1016.5 after finding that defendants that are not citizens of the United States may often enter pleas of nolo contendere without full knowledge th at a conviction may result in certain immigration consequences, such as deportation, exclusion fr om admission, and a denial of naturalization pursuant to the laws of the United States. (§ 1016.5, subd. (d).) One of the Legislature’s express intents in enacting th e section was to “promo te fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropri ate warning of the special consequences for such a defendant which may result from the plea.” ( Ibid .)7 Other appellate courts have similarly upheld that trial courts need only substantially comply with the required advisement under section 1016.5. In People v. Gutierrez (2003) 106 Cal.App.4th 169 ( Gutierrez ), the prosecutor informed Gutierrez that “ ‘If you are not a United States citizen, yo u will be deported from the United States, denied re-entry and denied amnesty or naturalization. [¶] Mr. Gutierrez, do you understand that?’ [Gutierrez] answered, ‘Yes.’ ” ( Id. at p. 171.) Gutierrez appealed, in part arguing that the prosecutor’s advisement failed to accurately track the language of section 1016.5, as the prosecu tor utilized the phrase “denie d re-entry” instead of the phrase “ ‘exclusion from admission.’ ” ( Gutierrez , supra , at p. 173.) The Second District rejected this argument, reiterating that “ only substantial compliance is required under section 1016.5 as long as the defendant is specifically advised of all three separate immigration consequences of his plea.” ( Id. at p. 174.) Gutierrez “was expressly told that one of the immigration co nsequences of his conviction wa s that he would be denied reentry into the United States; in other word s, under the statute, he would be excluded from the United States. The trial court, thus, substantially complied w ith the statute, and, hence, committed no error in the manner in which it took appellant’s plea.” ( Ibid. ) We find that the advisement given to defendant in 1999 was in substantial compliance with section 1016.5. Defendant was specifically info rmed of all three immigration consequences of his plea if he was not a citizen, including the possibility of deportation, exclusion from admission to the United States, and deni al of naturalization pursuant to the laws of the United States. The trial court’s main deviance from the statutory language in section 1016.5 is that it failed to specifi cally state that the consequences were “ex clusion from admission to the United States ,” and “denial of
naturalization pursuant to the laws of the United States .” However, we do not believe the
lack of reference to the “United States” in the trial court’s statement rendered the advisement unacceptably vague. The a dvisement given to the defendant in Gutierrez8 similarly lacked a specific refe rence to the United States, yet wa s still determined to be in substantial compliance. ( Gutierrez , supra , 106 Cal.App.4th at p. 171.) In the situation presented here, defendant was informed of all three immigration consequences required under s ection 1016.5. Furthermore, it is implied from the trial court’s advisement that it was referencing the United States. A trial court, located with the United States, would not reasonably admonish a defendant that a possible immigration consequence of a conviction in the United States would be exclusion from admission from country that is not the United States, and that another consequence may be denial of naturalization pursu ant to the laws of another co untry. We find no merit to
defendant’s contention that the trial court’s advisement prior to his plea is similar to the defective advisement contemplated in Zamudio . In Zamudio , the defendant was not advised of the possibility of exclusion. ( Zamudio , supra , 23 Cal.4th at pp. 207-208.) Here, defendant was advised of all three c onsequences. While the language of the
advisement was not a verbatim recitation of section 1016.5, subdivision (a), the advisement substantially complied with the requirements of the statute.
We note that there were some deficien cies with the trial court’s reasoning behind
its denial of defendant’s motion to vacate. Fi rst, the trial court note d that since defendant has an “international history,” it is expected th at defendant, his family , or others similarly situated, would be “uniquely aware of the te rms deportation, citizenship and reentry.” The fact that a defendant may be more well-informed about potential immigration consequences of a plea does not negate the c ourt’s duties under sect ion 1016.5. Second,
the trial court reasoned that the advisement’s sufficiency was bolstered by the fact that defendant, after being given the advisement, was asked by th e trial court if he had any questions, to which he answered in the negativ e, and was also asked if he understood the advisements, to which he answered in the affi rmative. If the trial court’s advisement did9 in fact lack complian ce with section 1016.5, defendant’s answers that he understood the advisement and that he had no further ques tions about it would no t cure the defects. However, the deficiencies in the trial court’s rationale for denying defendant’s
motion to vacate do not undermin e the validity of our conclu sion that the advisement sufficiently complied with section 1016.5. We find that the lack of reference to the United States by the trial court in 1999 was not fatal to its admonishment. Since we determine that the advisement was adequate, we need not reach the issue of whether or not defendant demonstrated prejudice. We therefore conclude there was no abuse of discretion by the trial court when it denied defendant’s motion to vacate judgment and withdraw his plea.
D ISPOSITION The trial court’s order denying defendant’s motion to vacate j udgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.