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People v. Castaneda8/3/1995
DOSSEE, J.:
In 1987 defendant pled no contest to driving under the influence (Veh. Code, § 23153(a)) and was sentenced to two years in prison. Seven years later, defendant moved to vacate the judgment of conviction pursuant to Penal Code section 1016.5 on the ground that he was not advised of the possible immigration consequences of his plea. The trial court denied the motion; defendant appeals.
BACKGROUND
Since 1977, Penal Code section 1016.5 has required the trial court, before accepting a plea of guilty or nolo contendere, to advise a defendant in an appropriate case that the plea may have immigration consequences. It is undisputed that defendant was not advised in the 1987 proceedings--neither in his written plea form nor orally on the record.
Section 1016.5 provides that if the court fails to give the advisement and if the defendant shows that his conviction may result in deportation, exclusion, or denial of naturalization, then "the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty."
In his motion, counsel for defendant stated that defendant is a native of Guatamala who is presently involved in deportation proceedings. Defendant is not, however, facing deportation on account of his conviction in the present case for drunk driving . Indeed, defendant seems to concede that drunk driving is not a deportable offense. (Perhaps that is why defendant was not given the advisement under section 1016.5.) The notice from the Immigration and Naturalization Service (INS) submitted as an exhibit to defendant's motion indicates that the basis for the deportation proceeding is defendant's 1983 conviction for assault with a deadly weapon. Defendant contends, however, that his 1987 conviction for drunk driving has adverse consequences for him in the deportation proceeding in that it will preclude a defense of good moral character during the 10-year period following his 1983 assault conviction.
In response to the motion, the district attorney presented numerous documentary exhibits revealing defendant's criminal history. The district attorney argued that as a result of defendant's prior involvement both with the INS and with the criminal Justice system, defendant knew of the potential immigration consequences of his plea. Further, the district attorney argued that defendant had unduly delayed in waiting seven years to bring the motion.
The trial court denied the motion, reciting the following reasons: "Quite frankly, this motion must be denied for a number of reasons. First of all, I don't believe that the petitioner has met burden of showing diligence in presenting this motion or presenting the underlying facts to support the motion. The moving papers do not actually state anywhere in there that he was not actually aware of the consequences or met the burden of showing that he wasn't. Quite frankly, common sense would tell us that he was, in fact, aware of the consequences and possibility of deportation because of his prior conviction and for the prior deportation proceedings."
Discussion
By statute, a defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. (Pen. Code, § 1018.) Although section 1018 is limited on its face to the period before judgment, the courts have long permitted defendants to move to set aside the judgment as a means of allowing the defendant
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