DISCUSSION

Section 1016.5 provides, in relevant part: “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime 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.” “A noncitizen who has been convicted of a felony based on a plea of guilty or nolo contendere, but who claims that he was not advised on the immigration consequences of his . . . plea . . . can bring a statutory motion to vacate the judgment, under section 1016.5.” (People v. Aguilar (2014) 227 Cal.App.4th 60, 68.) “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. [Citations.] On the question of prejudice, defendant must show that it is reasonably probable he would

3 have not pleaded guilty or nolo contendere if properly advised. [Citation.] Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. [Citation.] Thus, in deciding the merits of defendant’s motion to vacate, it may be important for the trial court to determine the factual issue of knowledge.” (People v. Totari (2002) 28 Cal.4th 876, 884.) We review the denial of a motion to vacate under section 1016.5 for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) Applying these principles, we conclude that the trial court did not err in denying appellant’s motion to vacate. He was specifically advised of the consequences of his plea pursuant to section 1016.5. Relying upon the JRAD and the legislative intent behind section 1016.5, appellant asserts that “a simple advisement under the generic recital set . . . forth in section (a) of the statute is unfair, not proper, and does not reflect the legislative intent of the statute.” Appellant offers no legal authority in support of this argument and we discern no basis for adopting it. Appellant’s reliance upon Padilla is misplaced. As appellant concedes, Padilla concerned a claim of ineffective assistance of counsel. (Padilla, supra, 559 U.S. at p. 360.) Appellant does not assert here that his counsel was ineffective. And, while appellant offers Padilla in support of the proposition that “the immigration laws have changed drastically over time,” Padilla does not hold that the trial court has any expanded duties beyond those set forth in section 1016.5. Because we conclude that appellant was properly advised, we need not reach the question of whether he established prejudice. (People v. Dubon (2001) 90 Cal.App.4th 944, 956.) However, for the sake of completeness, we conclude that there was no prejudice—there is no indication that it is reasonably probable that, if differently advised, appellant would not have pleaded nolo contendere. There is nothing in the record to show that appellant would have rejected his plea. For example, he offers no evidence how he could have been able to avoid conviction, which specific defenses might have

4 been available to him, how any evidence might have exonerated him, or what immigration neutral plea might have been available. Given appellant’s very favorable plea deal, whereby he avoided serving any time in state prison, appellant has failed to establish that had he been differently advised of the immigration consequences of his plea, he would not have entered it.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, J.

ASHMANN-GERST

We concur:

______________________________, P. J.

BOREN

______________________________, J.

CHAVEZ

5