Filed 3/6/13 P. v. Barrera CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSE LUIS BARRERA, 

 Defendant and Appellant. 

 B238326 

 (Los Angeles County 

 Super. Ct. No. VA005274) 

 APPEAL from an order of the Superior Court of Los Angeles County. Roger Ito, 

Judge. Affirmed. 

Rene A. Ramos, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Steven D. 

Matthews, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * * * * 
2

 Defendant and appellant Jose Luis Barrera (defendant) appeals from an order 

denying his motion to vacate a judgment entered in 1990 upon a guilty plea. He contends 

that the trial court erred in finding that he was adequately advised of the potential 

immigration consequences of his guilty plea. The People contend that the trial court did 

not abuse its discretion when it denied the motion to vacate the plea. Substantial 

evidence supports a finding that the advisements were given. We affirm the order. 

BACKGROUND 

On October 9, 1990, in Los Angeles Superior Court case No. VA005274, 

defendant pleaded guilty to one count of second degree burglary, in violation of Penal 

Code section 459.1

The standard plea form, i.e., the Tahl2 form, included a paragraph which listed the 

immigration consequences of a plea. It provided: “I understand that if I am not a citizen 

of the United States, the conviction for the offense 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.” Defendant declared by his signature at the end 

of the document he understood “each and every one” of his constitutional rights and 

desired to waive those rights to plead guilty, and he had “personally initialed each of the 

above boxes and discussed them with [his] attorney.” Defendant was represented by 

attorney Arnold W. Lieman. Lieman declared, “I have explained each of the above rights 

to the defendant, and having explored the facts with him/her and studied his/her possible 

defenses to the charge(s), I concur in his/her decision to waive the above rights and to 

enter a plea of guilty.”

 Before accepting the guilty plea, the trial court (before Commissioner Thomas 

Parrott) asked the prosecutor to obtain defendant’s waiver. Defendant was directed to 

examine the two-page Tahl waiver form that was placed in front of him, and was asked if, 

 

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

2 In re Tahl (1969) 1 Cal.3d 122.
3

with the help of his attorney, he had read and understood the form. He replied, “Yes,” 

and indicated that he had no questions regarding the form. Defendant was asked if he 

placed his initials in the boxes on the left side of the Tahl waiver form and signed his 

name on the second page. He replied in the affirmative and indicated that he understood 

and accepted everything on the two-page form. Defendant was asked and responded to 

additional questions regarding his constitutional rights to a jury trial, to confront and 

cross-examine witnesses against him, to put on a defense, and the right against selfincrimination. The court found defendant entered the guilty plea of his own free will, 

made a knowing and intelligent waiver of his constitutional rights, and understood the 

consequences, penalties, and punishments associated with the plea. 

 On April 28, 2011, defendant filed a motion pursuant to section 1016.5 to vacate 

his 1990 conviction in Los Angeles Superior Court case No. VA005274. He argued that 

he was not properly advised of the immigration consequences of his plea and attached the 

transcript of the plea proceedings. Also in support of the motion, defendant submitted his 

declaration describing the circumstances of his conviction as well as facts regarding 

himself and his family.3 Defendant did not “recall being informed of the immigration 

consequences of [his] plea by the court or [his] attorney.” He was not told that his plea 

“could result in deportation, exclusion of admission, or denial of naturalization.” He 

would not have entered the plea had he known of the immigration consequences and 

instead would have negotiated an alternative plea or exercised his right to a jury trial. 

 On November 2, 2011, the trial court held a hearing on the motion to vacate. 

Defendant was unable to obtain the original Tahl waiver form or a copy from the office 

of public records. The prosecutor produced a digitized copy which defense counsel 

acknowledged was a copy of the original form used in the 1990 plea. Defense counsel 

argued that the absence of both check marks and defendant’s initials by the clause 

 

3 Defendant has lived in the United States for 36 years and permanently resides in 

Phoenix, Arizona. His wife, four children, and four grandchildren are United States 

citizens. His labor union membership authorizes him to work as a pipe welder all over 

the country. 
4

containing the immigration consequences of the plea on the form, suggested that it was 

not discussed with defendant. The court remarked on the poor quality of the copy and the 

difficulty in seeing any initials or marks on the form. The court then noted that the 

deputy district attorney “went through the waiver form to ensure that [the defendant] had, 

in fact, initialed the boxes at the time he was taking the plea.” The court also found 

significant that parts of the Tahl waiver form which were inapplicable to defendant had 

been crossed or lined out,4 while the clauses pertaining to the immigration consequences 

had not. 

 Having reviewed the totality of the evidence which included the defendant’s 

declaration that he could not recall if he was advised of the immigration consequences, 

the transcript of the plea hearing, and the signed copy of the waiver form which included 

the immigration advisements but not other inapplicable consequences, the court found 

sufficient evidence that the required advisements were given when defendant entered his 

plea. Defendant filed a timely notice of appeal from the order denying his motion, but 

did not obtain a certificate of probable cause. 

DISCUSSSION 

I. Contention 

Defendant contends the trial court erred by finding he was advised of the 

immigration consequences of his decision to enter a guilty plea in compliance with 

section 1016.5. Specifically, defendant contends the plea form did not contain any 

legible initials or markings to indicate that defendant was advised. The People, on the 

other hand, contend the transcript of the plea proceedings, coupled with the provisions of 

the plea form which defendant signed, was sufficient to show the advisements were 

given. 

 

4 One clause required registration as a sex offender, while a second required 

registration as a narcotic offender. 
5

II. Requirements of section 1016.5 

Prior to acceptance of a plea of guilty or nolo contendere, the trial court must give 

the defendant the following advisement on the record: “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.” (§ 1016.5, subd. (a).) A 

defendant who was not so advised may move to vacate the judgment and his plea. 

(§ 1016.5, subd. (b).) 

 “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; see also People v. Superior Court 

(Zamudio) (2000) 23 Cal.4th 183, 192, 199–200.) 

III. No certificate of probable cause required 

 In People v. Placencia (2011) 194 Cal.App.4th 489 (Placencia) the court held that 

a defendant must obtain a certificate of probable cause in order to appeal the denial of a 

motion to withdraw a guilty plea for failure by the court or counsel to advise the 

defendant of the immigration consequences of the plea in accordance with 

section 1016.5. The issue is currently pending before the California Supreme Court in a 

case from this Court, People v. Arriaga (2011) 201 Cal.App.4th 429 (Arriaga), review 

granted February 22, 2012, S199339. The majority opinion in Arriaga disagreed with 

Placencia and found no probable cause certificate was required. Until such time as the 

Supreme Court concludes otherwise, we see no reason to depart from Arriaga and 

proceed to the merits of defendant’s case. 
6

IV. Standard of review 

We review the trial court’s ruling for abuse of discretion. (People v. Superior 

Court (Zamudio), supra, 23 Cal.4th at p. 191.) To establish an abuse of discretion, 

defendant must show that it was exercised in an arbitrary, capricious, or patently absurd 

manner that resulted in a manifest miscarriage of justice. (People v. Limon (2009) 179 

Cal.App.4th 1514, 1518.) We uphold the trial court’s reasonable inferences and 

resolution of factual conflicts if supported by substantial evidence, viewed in the light 

most favorable to the ruling, and we accept the court’s credibility determinations. 

(People v. Quesada (1991) 230 Cal.App.3d 525, 533.) 

V. No abuse of discretion 

Defendant’s reliance on the absence of initials or marks on the copy of the Tahl

waiver form is misplaced when we consider, as the trial court did, the poor quality of the 

digitized copy of the form in conjunction with the transcript of the plea proceedings. 

 The original waiver form was not available from public records and the court and 

the parties relied on a digitized copy provided by the prosecutor. The copy was of such 

poor quality that the trial court noted not only was it “very difficult to make out any 

initials” but “it was difficult to make out the actual initialed boxes.” It was evident 

however that the waiver bore defendant’s signature and provisions that were inapplicable 

to defendant’s plea had been crossed out but the immigration advisement had not. 

 The transcript of the plea proceedings from October 9, 1990, indicates that the 

two-page Tahl waiver form was placed in front of defendant and he was asked to review 

it prior to entering his plea. Defendant acknowledged that he read and understood the 

form and signed his name on the second page. Additionally, defendant acknowledged 

that he placed his initials “on the left side in the little boxes” on the waiver form. The 

record here does not reflect that defendant had difficulty understanding the prosecutor’s 

questions, and defendant’s declaration in support of his motion to vacate the plea did not 

state that he did not understand what he was told; he stated he did not recall what he was 

told. The absence of defendant’s initials or marks by the immigration provisions on the 
7

copy of the waiver form is not significant in light of the fact that no initials can be 

observed anywhere on the form. Given defendant’s acknowledgement that he did initial 

the form the inability to see them was due to the poor quality of the digitized copy. 

 Substantial evidence showed that the statutorily required advisements were 

properly given in this case. We conclude that the trial court did not abuse its discretion in 

denying the motion. 

DISPOSITION 

 The trial court’s order denying the motion to vacate defendant’s 1990 conviction is 

affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 _______________________, P. J. 

 BOREN 

We concur: 

_______________________, J. 

 ASHMANN-GERST 

_______________________, J. 

 CHAVEZ