APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. (Super. Ct. No. SC036187C).
The opinion of the court was delivered by: Gomes, J.
CERTIFIED FOR PUBLICATION
In 1988, Jaime Limon pled guilty to cultivation and sale of marijuana after the court read Penal Code section 1016.5's alien status advisement to him.*fn1 In 1995, he was deported from the United States. In 1997, he returned to the United States illegally. In 2008, he filed a motion to vacate the judgment, withdraw his guilty pleas, and enter not guilty pleas so that he could "have a realistic chance of avoiding permanent banishment from the United States." The court denied his motion. He appeals the court's order.*fn2 We affirm.
On March 23, 1988, the district attorney filed a complaint in Municipal Court case No. 48103 charging Limon with two counts of sale of marijuana, one on March 18, 1988, and one on March 21, 1988. (Health & Saf. Code, § 11360.) In a different document, the district attorney charged him in Municipal Court case No. 48214 with two counts of cultivation of marijuana, one on March 1, 1988.*fn3 (Health & Saf. Code, § 11358.)
On April 14, 1988, Limon appeared with his attorney for a negotiated disposition of both cases. The reporter's transcript shows the terms of the negotiated disposition as, inter alia, a guilty plea with a maximum nine-month sentence in Municipal Court case No. 48103 to one count of sale of marijuana on March 18, 1988, "to run with any time he gets concurrent on [Municipal Court] Case Number 48214," a guilty plea with a maximum nine-month sentence in Municipal Court case No. 48214 to one count of cultivation of marijuana on March 1, 1988, and a dismissal of the other charge in each case. The court approved the negotiated disposition, accepted Limon's guilty pleas, and set a sentencing date.*fn4
On June 1, 1988, Limon appeared with his attorney for sentencing in both cases. The court rejected the maximum nine-month sentence in the negotiated disposition with the observation that all of his co-defendants "were going to be doing a year" and that he "was involved in one more sale than anybody else." After consulting with his attorney, he agreed to accept a maximum one-year sentence. Finding that "despite the seriousness of these charges" he was "a suitable candidate for probation," the court suspended imposition of sentence, admitted him to probation for five years, and ordered him to serve one year in county jail in Municipal Court case No. 48214 and 93 days in county jail (with credit for 93 days time served) in Municipal Court case No. 48103.
On July 21, 2008, Limon filed a motion to vacate the judgment. (§ 1016.5.) On August 19, 2008, the court dropped the matter from the calendar when he failed to appear at the hearing on the motion.
On September 12, 2008, Limon filed another motion to vacate the judgment. On November 4, 2008, the district attorney filed an opposition to the motion. On November 18, 2008, the court held an evidentiary hearing, heard argument by counsel, and denied the motion.
Limon argues that (1) his attorney was constitutionally ineffective by failing to advise him of the immigration consequences of his pleas, (2) section 1016.5's alien status advisement is inadequate, (3) amendments to the Immigration and Nationality Act after the enactment of section 1016.5 frustrate the legislative intent of the state statute, (4) the court's advice to him about the immigration consequences of his pleas was inadequate, and (5) his pleas were involuntary since he did not receive adequate advice about, and did not understand the consequences of, his pleas.
On the merits, the Attorney General argues that (1) the court's denial of Limon's motion was not an abuse of discretion, (2) his attorney was not constitutionally ineffective by failing to advise him of the immigration consequences of his pleas, and (3) his pleas were voluntary. Characterizing the appeal as "rife with procedural problems," the Attorney General additionally argues that (1) Limon failed to comply with Penal Code section 1237.5's requirement of a certificate of probable cause, (2) his lack of due diligence in challenging the adequacy of section 1016.5's alien status advisement precludes a grant of relief, and (3) he improperly bootstraps onto his appeal constitutional issues (whether his attorney was ...