California Penal Code Section 1016.5 - Case Law
Penal Code section 1016.5 requires that, prior to accepting a plea of guilty or nolo contendere to a criminal offense, a trial court must advise a defendant that if she is not a United States citizen, conviction for the charged offense may result in deportation, exclusion from admission to the United States, or denial of naturalization.
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 plea may have the adverse consequences described by the statute." (People v. Gutierrez (2003) 106 Cal.App.4th 169, 173.)
A trial court's advisement of the immigration consequences of a guilty or nolo contendere plea need not literally comply with the advisement set out in section 1016.5. (Gutierrez, supra, 106 Cal.App.4th at pp. 173-174; see People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 208.) Rather, an immigration advisement need only substantially comply with section 1016.5. (Gutierrez, supra, 106 Cal.App.4th at pp. 173-174; see Zamudio, supra, 23 Cal. 4th at p. 208.)
"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. On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised. " (People v. Totari, supra, 28 Cal.4th at p. 884.) "Whether defendant was prejudiced by the trial court's incomplete advisements is a factual question, appropriate for decision by the trial court in the first instance. " (Zamudio, supra, 23 Cal. 4th at p. 210; Gutierrez, supra, 106 Cal.App.4th at p. 176 whether the defendant would not have entered a guilty plea but for the failure to advise is a factual question for the trial court.) A trial court's ruling on a motion to vacate under section 1016.5 is reviewed for abuse of discretion. (Zamudio, supra, 23 Cal. 4th at p. 192; Gutierrez, supra, 106 Cal.App.4th at p. 172.)
Appellant contends, and respondent does not dispute, that the trial court failed to advise her in the literal language of section 1016.5 that her guilty plea could result in "exclusion from admission to the United States." The issue here is whether the substitute advisement the trial court gave substantially complied with section 1016.5's directive that a defendant be advised that a guilty plea could result in "exclusion from admission to the United States."
"Section 1016.5 incorporates several distinct terms of art from immigration law. 'Deportation is the removal or sending back of an alien to the country from which he or she has come . . . .' (Roseman, The Alien and the Guilty Plea: Caveat to the Defense (1984) 12 W. St. U. L.Rev. 155, 163.) 'Exclusion' is 'being barred from entry to the United States.' (Id. at p. 165, fn. omitted.) 'Naturalization' is a process by which an eligible alien, through petition to appropriate authorities, can become a citizen of the United States. (Id. at pp. 167-168.)" (Zamudio, supra, 23 Cal. 4th at pp. 207-208.) "Deportation is to be distinguished from exclusion, which is the denial of entry to the United States. " (People v. Gontiz (1997) 58 Cal.App.4th 1309, 1317 (Gontiz), disapproved on another ground in Zamudio, supra, 23 Cal. 4th at p. 200, fn. 8.)
In Gutierrez, supra, 106 Cal.App.4th 169, the prosecutor, in explaining the consequences of a plea, used the phrase "denied re-entry" instead of the statutory phrase "exclusion from admission to the United States." (Gutierrez, supra, 106 Cal. App. 4th at p. 173.) The Court of Appeal held that phrase substantially complied with section 1016.5 and that the trial court committed no error in taking the defendant's plea. (Id. at p. 174.)