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Name: People v. Araujo
Case #: B261602
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 01/07/2016

Written warning of immigration consequences contained on change of plea form adequately provided defendant with the advisement required by Penal Code section 1016.5. In 2013, appellant pleaded guilty to first degree burglary and was granted probation with 365 days in custody. The change of plea form contained a paragraph advising that, if the defendant were not a U.S. citizen, the plea could result in deportation, denial of naturalization, or exclusion from admission to the U.S. During the change of plea proceedings, appellant acknowledged that a Spanish interpreter had read the form to her in Spanish, and that she had discussed the plea with her attorney, understood the plea, and agreed with what was stated on the form. She signed the form and initialed the immigration advice paragraph. In 2014, appellant filed a motion to vacate her plea, claiming she was not properly advised of the immigration consequences of her plea (Pen. Code, § 1016.5). Held: Affirmed. To prevail on a section 1016.5 motion the defendant must show: (1) she was not properly advised of the immigration consequences of his plea; (2) there exists more than the remote possibility that defendant will suffer an adverse immigration consequence because of the plea and;(3) the failure to advise defendant resulted in prejudiced. The trial court is not required to provide notice of immigration consequences orally and a written advisement is sufficient. The advisement need not be in the exact language of section 1016.5; substantial compliance is all that is required. The advisement here substantially complied with section 1016.5. Additionally, appellant failed to show prejudice in light of her criminal history and the nature of the plea bargain.

The fact that the immigration advisement on the change of plea form contained surplus language did not render it misleading. The immigration consequences paragraph on the change of plea form tracked the language of Penal Code section 1016.5. It also stated that if a defendant pled guilty to an aggravated felony, conspiracy, a drug offense, a firearm offense, or under some circumstances a moral turpitude offense, or domestic violence offense, she would be deported, excluded and/or denied naturalization. But this did not mislead defendant into believing she would only be deported if convicted of a listed offense because “superfluity does not vitiate.”

The full opinion is available on the court’s website here: