Filed 2/26/16 P. v. Padilla CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Appellant,

v.

JOSE RAMON PADILLA,

Defendant and Respondent.

 B265160

 (Los Angeles County

 Super. Ct. No. VA033618)

APPEAL from an order of the Superior Court of Los Angeles County. Olivia 

Rosales, Judge. Reversed.

Jackie Lacey, Los Angeles County District Attorney, Steven I. Katz and Felicia N. 

Shu, Deputy District Attorneys, for Plaintiff and Appellant. 

Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and 

Respondent.

* * * * * * * * *
2

In 1996, defendant Jose Ramon Padilla pled guilty to one count of receiving stolen 

property. (Pen. Code, § 496, subd. (a).) In 2014, defendant filed a motion to vacate his

plea and petition for writ of error coram nobis. His pleadings sought to set aside his 1996 

plea on the grounds the trial court’s “conditional language” in its advisement of the 

immigration consequences of the plea did not conform with the requirements of section 

1016.5, subdivision (a), and that defense counsel rendered ineffective assistance by 

failing to advise defendant of the immigration consequences of his plea. Defendant later 

filed an amended motion, arguing additional constitutional grounds to withdraw his plea. 

The trial court granted the motion, and the People have appealed. 

Because the advisement given to defendant complied with section Penal Code 

1016.5, subdivision (a), and because defendant failed to introduce any evidence that he 

would not have entered the plea if he had been “properly advised,” we find the trial court 

abused its discretion in vacating the judgment and allowing defendant to withdraw his 

plea. The other grounds for defendant’s motion provided no legal or factual basis for the

relief granted by the trial court. We therefore reverse the order below.

FACTS

On February 14, 1996, defendant pled guilty to receiving stolen property in 

violation of Penal Code section 496, subdivision (a). According to the probation report, 

defendant had been paid $35,000 to warehouse merchandise which had been carjacked 

from various Southern California cargo trucks. At the time defendant entered his plea, he 

was a legal resident of the United States. He had come to the United States at the age of 

14 from Honduras. 

At the plea hearing, defendant was represented by privately retained counsel. 

Before he entered his plea, the prosecutor confirmed on the record that defendant had 

signed and initialed the “Guilty Plea in Superior Court” form that was in common use at 

that time. Defendant wrote his initials next to the portions of the form that 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.” In 
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addition to confirming that defendant had initialed and signed the form, the prosecutor

also repeated to defendant on the record “if you’re not a citizen of the United States, this 

guilty plea may have the effect of deportation or the denial of the right to enter the United 

States.” The prosecutor asked defendant if he understood, and defendant responded, 

“Yes, I do.” 

Defendant also initialed the portion of plea form which provided: “I have 

personally initialed each of the above boxes and discussed them with my attorney. I 

understand each and every one of my rights outlined above and I hereby waive and give 

up each of them in order to enter my plea to the above charges.” Defendant, his attorney, 

and the prosecutor each signed the form. The paragraph preceding defense counsel’s 

signature provided: “I am attorney of record and I have explained each of the above 

rights to the defendant . . . . I further stipulate this document may be received by the 

court as evidence of defendant’s intelligent waiver of these rights . . . . ” 

When the prosecutor asked defendant if he was entering a guilty plea freely and 

voluntarily, defendant responded, “Yes, I guess so, ” and then said his “options [were]

very limited.” The trial court noted that defendant appeared to have some reservations, 

and suggested that defendant further discuss the matter with his attorney. Defendant and 

his attorney “confer[red] sotto voce” and then defendant stated on the record that he had 

“no reservations.” 

Defendant then entered a guilty plea on the record, and his counsel joined in the 

waivers and the plea, and stipulated to the factual basis of the plea, all on the record. The 

court found that defendant freely and voluntarily entered his plea, and that he 

“knowingly, willingly, and intelligently” waived his rights as reflected in the plea form. 

The court stated for the record that both defendant and his attorney had signed the plea 

form. 

Defendant was sentenced on April 15, 1996, in conformance with the terms of the 

plea agreement. He was placed on probation for three years, and was given 180 days in 

jail. Defendant surrendered to serve his jail sentence on April 29, 1996. 
4

On February 25, 1997, defendant was found to be in violation of his probation 

after he was again convicted of receiving stolen property in a new case, No. KA034925. 

He was sentenced to 16 months in state prison in this case, to be served concurrent with 

the sentence in his new case. 

More than 17 years later, on October 3, 2014, defendant filed a “Motion of Error 

Coram Nobis.” The motion sought an order vacating defendant’s 1996 guilty plea under 

Penal Code section 1016.5 on the basis that the “court’s conditional language failed to 

properly advise [defendant] of the immigration consequences of entering a plea of guilty” 

and that defense counsel “did not advise him as to any possible immigration 

consequences.” The motion referred to a declaration of defendant, but no such 

declaration was attached to the motion. A transcript of the plea hearing was attached as 

an exhibit to the motion. 

Despite the extensive record of admonitions of the immigration consequences of 

the plea described above, the motion inaccurately asserted that the transcript of the plea 

hearing “contains no mention of immigration matters or consequences.” The motion also 

inaccurately asserted that defendant’s plea was not “voluntary and intelligent” because 

defendant’s “former attorney failed to adequately advise [defendant] that the conviction 

would impact his eligibility for immigration relief.” The motion stated that defendant 

had been detained “and is currently facing removal proceedings as a result of [his] 

conviction.” The motion also argued (without evidentiary support) that defendant would 

not have “agreed to be deported from the only home he has ever known in exchange for a 

slightly shorter sentence.” The motion argued that the failure to properly advise 

defendant of the immigration consequences constituted ineffective assistance of counsel 

under Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla).

1 The motion argued that 

defendant’s conviction in this case was for a deportable offense, without citing to any 

authority. 

 

1 Defendant was the petitioner before the United States Supreme Court in the 

Padilla case, following his guilty plea to drug distribution charges in Kentucky. 
5

The People opposed the motion on the basis that defendant had signed the plea 

form and was advised on the record of the immigration consequences of his plea, 

attaching the plea form and transcript of the hearing as exhibits. The People also argued 

that defendant failed to support his claim of ineffective assistance of counsel because 

there was no evidence that his counsel failed to advise him of the immigration 

consequences of his plea, and that defendant was not entitled to coram nobis relief. 

On January 12, 2015, defendant filed a “First Amended . . . Motion to Vacate 

Conviction (Nonstatutory Constitutional Grounds).” The motion newly argued that the 

immigration advisement under Penal Code section 1016.5 was deficient because the 

prosecutor had not mentioned naturalization in his immigration advisement. Defendant

also argued that “the equities in this case weigh[] heavily in [defendant’s] favor,” 

specifically, that defendant had lived in the United States for over 40 years, was a “twicedecorated combat veteran of the Vietnam War,” and that his wife and disabled adult 

children lived in the United States. Again, there were no declarations or other evidence 

in support of the amended motion. 

On February 2, 2015, defendant’s immigration attorney filed an unsworn

declaration in support of defendant’s motions. The declaration stated that removal 

proceedings were initiated against defendant in November 2004 based on his conviction 

for receiving stolen property and his confinement in prison. Defendant applied for a 

removal waiver, but his request for relief was denied in December 2010 based on his 

conviction for an aggravated felony. Defendant’s appeal of this decision was dismissed 

in March 2013. Defendant was taken into custody in September 2014 to effect his 

removal. On October 22, 2014, defendant was granted a one-year stay of his removal so 

that he could pursue having his criminal convictions vacated. 

The hearing on defendant’s motion was held on April 30, 2015. Defendant was 

present at the hearing, as was his immigration counsel who had submitted the declaration

in support of defendant’s motions. Neither defendant nor his immigration attorney 

testified at the hearing; instead, defendant submitted on his filings after presenting brief 

argument. 
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On May 18, 2015, the court entered its order granting defendant’s motion, finding 

“defendant was not properly advised of his immigration consequences . . . [¶] . . . [¶] 

. . . [b]ased on all the arguments presented.” This timely appeal followed. 

DISCUSSION

Defendant’s motion to vacate the judgment and withdraw his plea was based on 

several legal grounds. The motion was styled as a statutory motion for relief under Penal 

Code section 1016.5, a petition for error coram nobis, and as a motion on “nonstatutory 

constitutional grounds.” Notwithstanding the various legal bases of the motion, the 

gravamen of defendant’s motion was that the advisement he received from the court was 

deficient, and that he received ineffective assistance of counsel because his attorney did 

not explain the immigration consequences of his plea. On appeal, the People argue there 

is no legal or factual basis for the trial court’s ruling under any of these theories. 

Defendant impliedly concedes that his claims for ineffective assistance of counsel, 

request for coram nobis relief, and the “nonstatutory constitutional grounds” for his

motion are baseless, as he said nothing about these issues in his brief on appeal. Instead, 

defendant simply argues that the “conditional” language of the section 1016.5 advisement 

he received was inadequate. Finding no legal or factual basis for the trial court’s ruling, 

under any theory, we reverse the order below.

I. Sufficiency of the Immigration Advisement

Penal Code section 1016.5, subdivision (a) requires the trial court, before

accepting a plea a guilty or no contest plea, to administer 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.” The purpose of the section 1016.5 advisement is to ensure that a 

defendant is informed of the immigration consequences of a plea. It does not matter who 

gives the advisement, and there is no requirement that the advisement be given orally. “It 

is sufficient if . . . the advice is recited in a plea form and the defendant and his counsel 
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are questioned concerning that form to ensure that defendant actually reads and 

understands it.” (People v. Quesada (1991) 230 Cal.App.3d 525, 536.)

A defendant may have his judgment of conviction vacated, and plea set aside, if he 

did not receive the required statutory advisement. (Pen. Code, § 1016.5, subd. (b).) To 

prevail on a motion brought pursuant to section 1016.5, subdivision (b), a defendant must 

establish all of the following: (1) at the time of the plea, the trial court failed to advise 

the defendant of the immigration consequences of the plea as provided in the statute; 

(2) there exists, at the time of the motion, more than a remote possibility that the 

conviction will have adverse immigration consequences; and (3) if properly advised, the 

defendant would not have entered the plea. (People v. Totari (2002) 28 Cal.4th 876, 884; 

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

establish grounds for withdrawing a guilty plea by clear and convincing evidence. 

(People v. Suon (1999) 76 Cal.App.4th 1, 4.) 

A motion to vacate the judgment and to set aside a plea “is directed to the trial 

court’s sound discretion, and the reviewing court may not disturb the trial court’s order in 

the absence of abuse of discretion. [Citations.]” (People v. Suon, supra, 76 Cal.App.4th 

at p. 4; see also People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518; People v. 

Chien (2008) 159 Cal.App.4th 1283, 1287.) There has been an abuse of discretion “if the 

court acted ‘in an arbitrary, capricious or patently absurd manner resulting in a manifest 

miscarriage of justice.’ [Citations.]” (People v. Suon, at p. 4.) Moreover, the trial 

court’s discretion has been abused if there is no evidence to support the court’s decision. 

(In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)

The trial court abused its discretion by granting the motion, because there is

absolutely no factual support for the trial court’s conclusion that defendant was not 

properly advised under Penal Code section 1016.5. To the contrary, defendant signed 

and initialed the plea form that contains the exact language required by section 1016.5.

Moreover, the prosecutor repeated the admonitions on the record in open court, and 

defendant confirmed that he had signed and initialed the form, and understood its 

contents. When defendant expressed vague reservations about the plea, the court directed 
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him to further consult with his privately retained counsel. The court did not accept the 

plea until after defendant conferred further with counsel and confirmed to the court that 

he had no reservations about the guilty plea. We cannot imagine what more the court 

could possibly have done to assure that defendant understood the immigration 

consequences of the plea, and that defendant’s guilty plea was knowing and intelligent.

There is no merit whatever to defendant’s contention that the conditional “if” and

“may” language of the statutory immigration advisement renders the advisement

ineffective. Defendant has not cited to any authority holding the legislatively approved 

statutory advisement to be deficient. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. 

Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal argument with 

citation of authorities on the points made. If none is furnished on a particular point, the 

court may treat it as waived, and pass it without consideration. [Citations.]’ ”].) 

Moreover, defendant presented absolutely no admissible evidence that he would 

not have entered the plea if he had been given a different explanation of the immigration 

consequences of the plea. (People v. Totari, supra, 28 Cal.4th at p. 884; People v. Suon, 

supra, 76 Cal.App.4th at p. 4.) The only evidence of adverse immigration consequences 

that defendant presented was an unsworn declaration of defendant’s immigration counsel. 

(See, e.g., Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 952-953 [letter not 

signed under penalty of perjury lacked evidentiary value].) 

II. A Few Words on the Arguments Asserted in the Trial Court That Defendant 

Waived on Appeal

A defendant’s right to the effective assistance of counsel includes an obligation on 

the part of counsel to inform the defendant whether a plea carries a risk of deportation. 

(See Padilla , supra, 559 U.S. at pp. 364-368.) 

Since there was no legal or factual basis for defendant’s motion, including no basis 

for the claim that his counsel failed to advise him of the immigration consequences of his 

plea, manifestly there is no basis for his claim of ineffective assistance. In any event, our 

Supreme Court has held a defendant may not raise an ineffective assistance of counsel 

claim as part of the statutory motion pursuant to section 1016.5. (People v. Kim (2009) 
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45 Cal.4th 1078, 1108, fn. 20 [a claim for ineffective assistance of counsel “is not a 

wrong encompassed by [section 1016.5].”].)

A petition for writ of error coram nobis is not a proper vehicle by which to assert a 

claim for ineffective assistance of counsel. (People v. Kim, supra, 45 Cal.4th at 

pp. 1103-1104 [ineffective assistance of counsel claim is a mistake of law rather than a 

mistake of fact, making it inappropriate for coram nobis relief].) Although ineffective 

assistance of counsel may be raised by a petition for a writ of habeas corpus, defendant 

was not in custody at the time of his motion and therefore was ineligible for habeas 

corpus relief. (People v. Gallardo (2000) 77 Cal.App.4th 971, 987 [a claim of ineffective 

assistance of counsel must be raised on appeal or in a petition for writ of habeas corpus]; 

see also People v. Villa (2009) 45 Cal.4th 1063, 1068-1072 [state court habeas corpus 

relief unavailable when defendant is no longer in state custody; being in custody of 

federal immigration authorities is not “custody” for purposes of habeas corpus relief].)

Lastly, even if there was another constitutional basis for defendant’s motion under 

the holding in Padilla, supra, Padilla does not apply retroactively to defendants whose 

cases were already final on direct appeal. (Chaidez v. United States (2013) __ U.S. __ 

[133 S.Ct. 1103, 1105].) 

DISPOSITION

The order is reversed.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.