People v. Gontiz

In People v. Gontiz (1997) 58 Cal.App.4th 1309, the trial court told the defendant that he could be deported or denied citizenship, but it failed to tell the defendant in any manner that he could be excluded from admission to the United States. (58 Cal.App.4th at p. 1312.) On appeal, the court in Gontiz rejected the contention that this failure was immaterial because the defendant had notice that his conviction carried immigration consequences. (Id. at p. 1316.) It stated: "There is case law which holds that the exact wording of the advisement is not critical so long as the defendant is warned there may be some immigration consequences flowing from his guilty plea. These cases are wrong. The statute requires the court to warn the defendant expressly of each of the three distinct possible immigration consequences of his conviction(s) prior to his plea." (Ibid.) It further stated: "An admonishment lacking in any one of these three possible immigration consequences constitutes a failure to comply with section 1016.5." (Id. at p. 1317.) In People v. Gontiz (1997) the Third District, in a footnote, overturned a trial court's rejection of Gontiz's motion to vacate on the ground that it was untimely. Gontiz had entered his pleas in 1991. He did not learn of potential immigration consequences until after his release from prison in 1995. Gontiz filed his motion to vacate nine months later. (Gontiz at pp. 1312-1313.) The Third District opined that Gontiz's motion was not timely until he was "faced with the prospect that one of the adverse immigration consequences would occur." (Gontiz at p. 1313, fn. 2.) "Although the trial court was not required to credit defendant's declaration, there is no evidence in the record suggesting any other date upon which defendant's ability to bring his motion was triggered. Disbelief of defendant's declaration of timeliness does not establish untimeliness." (Gontiz at p. 1313, fn. 2.)