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Name: People v. Akhile
Case #: A119729
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 10/09/2008

A Penal Code section 1016.5 advisement must be given by the trial court at the time of the taking of a plea. Advisement at another time will not suffice. Appellant, a non-citizen, entered a plea to grand theft by embezzlement. Several years later, the INS began deportation proceedings. Appellant then married a U.S. citizen and obtained a visa, but the court refused to provide relief from deportation because of appellant’s criminal conviction. Appellant filed a motion to vacate his plea based on Penal Code section 1016.5. The reporter’s transcript of the entry of plea had been destroyed, but a minute order noted appellant had been advise under section 1016.5 at arraignment. Respondent argued this was enough. The Court of Appeal found that while the statutory language ambiguously states the advisement must be given “prior to the acceptance of the plea,” the more reasonable interpretation of the statute is to require the advisement at the time of the plea. This consistent with the Legislative purpose of the statute and with the rule of lenity. So, an advisement at a time other than at entry of plea does not satisfy the statute.