(Super. Ct. No. 1284806) (Santa Barbara County)
The opinion of the court was delivered by: Perren, J.
CERTIFIED FOR PUBLICATION
Francisco Placencia appeals the denial of his motion to vacate the judgment following a plea of nolo contendere to possession or control of child pornography. (Pen. Code, § 311.11, subd. (a).)*fn1 He contends the trial court erred by not adequately advising him of the immigration consequences of his plea as required by section 1016.5.*fn2 We conclude that the motion constitutes an attack on the validity of a plea, and an appeal from the denial of the motion requires the defendant to obtain a certificate of probable cause from the trial court in compliance with section 1237.5. Because Placencia did not obtain a certificate of probable cause, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY*fn3
Police discovered Placencia had transmitted through his e-mail a photograph showing a four-year-old female child with her mouth over an adult male's erect penis. Placencia admitted he had received and transmitted many DVD's showing children in the nude and in sexual poses. One of his DVD's contained approximately 50 photographs of female children in provocative poses and various levels of undress.
In September 2008, Placencia was charged with exhibiting a minor in pornography (§ 311.2, subd. (b)), and possession or control of child pornography (§ 311.11, subd. (a)). He pleaded no contest to the possession or control offense and the exhibiting a minor in pornography offense was dismissed. Before pleading no contest, Placencia signed and initialed a preprinted plea form. The form stated: "If I am not a citizen of the United States, I understand that the law concerning the effect of my conviction of a criminal offense of any kind on my legal status as a non-citizen will change from time to time. I hereby expressly assume that my plea of NO CONTEST in this case will, now or later, result in my deportation, exclusion from admission or readmission to the United States, and denial of naturalization and citizenship." In the form Placencia also acknowledged: "I have read and understand this form. I understand the pleas and admissions I am entering, the consequences thereof and the constitutional rights I am waiving." Placencia's attorney declared in the plea form that he had fully explained its terms to Placencia.
On January 29, 2009, the trial court suspended imposition of sentence and placed Placencia on five years formal probation with the condition that he serve a term of 150 days in county jail.
In March 2010, Placencia filed a motion to vacate the judgment, claiming the trial court failed to adequately advise him of the immigration consequences of his plea. (§ 1016.5.) At the plea hearing, the trial court asked Placencia whether he had adequate time to review the plea agreement with his counsel, and Placencia answered, "yes." The prosecutor also asked whether he and his attorney had specifically discussed immigration consequences and Placencia answered, "yes." The trial court denied the motion.
After the motion was denied, Placencia filed a notice of appeal challenging the validity of his plea, and requested a certificate of probable cause. The trial court denied the request for a certificate of probable cause and, in June 2010, this court dismissed the appeal. (Cal. Rules of Court, rule 8.304(b)(3).)
Placencia filed a motion in this court to vacate the June 2010 order, claiming that his notice of appeal erroneously stated the basis for the appeal. We granted the motion, and Placencia filed an amended notice of appeal stating that the appeal was from denial of his section 1016.5 motion to vacate the judgment.
Placencia contends that, because he was inadequately advised of the immigration consequences of his plea, the trial court erred in denying his motion to vacate the judgment. He argues that an appeal is proper without a certificate of probable cause because his motion was made after the judgment and pursuant to statutory authorization. We disagree.
Section 1237.5 provides that a defendant may not appeal a judgment of conviction entered on a plea of guilty or nolo contendere without obtaining a certificate of probable cause from the trial court, unless the appeal is based solely upon grounds occurring after entry of the plea and which do not challenge its validity. (Cal. Rules of Court, rule 8.304(b); People v. Johnson (2009) 47 Cal.4th 668, 678; People v. Mendez (1999) 19 Cal.4th 1084, 1096.) The purpose for requiring a certificate of probable cause is to prevent frivolous appeals challenging convictions following guilty and nolo contendere pleas. (Johnson, at p. 676; People v. Panizzon (1996) 13 Cal.4th 68, 75-76.)
Section 1016.5 requires the court to advise a defendant of the immigration consequences of a plea of not guilty or nolo contendere prior to entry of the plea. (§ 1016.5, subd. (a).) If the court fails to give the advisement and the conviction has immigration consequences adverse to the defendant, "the court, on defendant's motion, shall vacate the judgment and permit the defendant to ...