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People v. Suon11/2/1999
APPEAL from a judgment of the Superior Court of Stanislaus County. Aldo Girolami, Judge.
Defendant Kamsan Suon pled guilty to burglary in 1993 without being advised of the possibility of adverse immigration consequences, as required by section 1016.5 of the Penal Code. In 1996, he pled guilty to driving under the influence , this time receiving the requisite admonition. It was not until 1998, however, that he filed a motion to withdraw his 1993 guilty plea, which was denied without prejudice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, a Cambodian national, entered the United States in 1980 as a refugee On September 8, 1993, the District Attorney of Stanislaus County charged defendant with burglary (a felony in violation of § 459) and with vehicle tampering (a misdemeanor in violation of Veh. Code, § 10852). On September 23, 1993, defendant pled guilty to felony first degree burglary in exchange for a dismissal of the misdemeanor vehicle tampering charge. According to the reporter's transcript of the hearing, the court did not advise defendant of the possible adverse immigration consequences of his guilty plea. The court sentenced defendant to the lower term of two years in prison. After serving his sentence, defendant was released from custody.
On January 10, 1996, defendant was charged with misdemeanor driving under the influence in violation of Vehicle Code section 23152, subdivision (a). On February 7, 1996, defendant pled guilty to this charge after the court advised him of the potential negative impact such a plea could have on an alien's immigration privileges.
Then, on May 28, 1998, defendant moved to withdraw his 1993 guilty plea on the ground that the court had failed to advise him pursuant to section 1016.5. Defendant alleged he is a Cambodian national who entered the United States as a refugee. This motion was filed four years and eight months after entry of that plea and two years and three months after he had learned, in connection with his intervening drunk driving charge, that a guilty plea may adversely affect an alien's immigration status. According to defendant's supporting declaration, his motion was timely because " ntil speaking with attorney on or about May 26, 1998, believed and understood that was a naturalized citizen of the United States." He also argued that he is subject to adverse immigration consequences because he might be barred from reentering the United States in the event he ever decides to leave.
Finding that defendant had failed to prove that he was subject to immigration consequences, the trial court denied the motion without prejudice. After obtaining a certificate of probable cause, defendant appealed.
DISCUSSION
I.
Proof of Noncitizenship
A motion to vacate judgment of conviction because of a wrongfully obtained guilty 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. (See People v. Stuhlmiller (1940) 37 Cal.App.2d 603, 604.) (See, e.g., People v. Grgurevich (1957) 153 Cal.App.2d 806, 811 [a postjudgment motion to withdraw a guilty plea is within the court's discretion]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796 [same standard for a prejudgment motion to withdraw a plea].) An abuse of discretion occurs if the court acted "in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of Justice." (People v. Shaw (1998) 64 Cal.App.4th 492, 496, citing People v. Jordan (1986) 42 Cal.3d 308, 316.) The defendant must establish by clear and convincing evidence the gr
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