Castaneda

In 1987 defendant pled no contest to driving under the influence (Veh. Code, § 23153, subd. (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.

Penal Code 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…