(D)

This Statute Cannot Be Used As A Way to Raise Claims of Ineffective Assistance of Counsel.  Section 1016.5 allows a court to vacate a conviction only if the trial court failed to give the advisement, but cannot be used to raise a claim of ineffective assistance of counsel by failure to provide adequate representation relating to immigration consequences.[341]  Though the court of appeal in People v. Chien recognized that its ruling would leave the defendant without a remedy for counsel’s failure to inform him of the immigration consequences of his conviction, it held that “[e]xtension of the section 1016.5 motion to encompass ineffective assistance claims would not ‘expedite’ justice in these circumstances.  It would instead undermine the finality of the judgment.”[342] 

[341] People v. Chien (12008) 159 Cal.App.4th 1283, 1285.

[342] Id. at pp. 1289-1291.

Other

CAL POST CON " STATE ADVISAL STATUTE " PENAL CODE 1016.5 DOES NOT REQUIRE ADVICE TO NATURALIZED U.S. CITIZEN
People v. Gari, 199 Cal.App.4th 510 (4th Dist. Sept. 12, 2011) (California Penal Code 1016.5, which requires that alien defendant be admonished that a guilty or no-contest plea may affect immigration status, does not require the court to advise defendants that a plea to a crime committed prior to the date of naturalization may result in revocation of citizenship; defendants assertions that he pleaded guilty to the offenses charged, without knowing the legal effect of the plea on his citizenship status, were insufficient to support any similar form of nonstatutory relief based on equity and fairness).

Article, PENAL CODE 1016.5 MOTIONS TO VACATE ARE LIMITED TO CLAIMS OF VIOLATION OF THE STATUTE, AND CANNOT BE BASED ON OTHER CLAIMS
By Norton Tooby In People v. Limon (December 11, 2009) 179 Cal.App.4th 1514, 102Cal.Rptr.3d 580, 2009 WL 4725229, the Fifth District affirmed the trial court's denial of defendant's motion to vacate a conviction under Penal Code 1016.5. The court rejected defendant's arguments 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. The court held that: "An order denying a section 1016.5 motion will withstand appellate review unless the record shows a clear abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, citing People v. Shaw (1998) 64 Cal.App.4th 492, 495-496; see also section 1016.5, subd. (c).) An exercise of a court's discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice constitutes an abuse of discretion. (Shaw, supra, at p. 496.)" The trial court had advised the defendant in terms virtually identical to the language of Penal Code 1016.5(a). The court therefore denied defendant's other cliams: Since the court gave a proper alien status advisement, his further claim of ineffective assistance of counsel is not a wrong encompassed by the statute. (People v. Kim (2009) 45 Cal.4th 1078, 1107, fn. 20 (Kim); People v. Chien (2008) 159 Cal.App.4th 1283, 1285.) Likewise, on the premise that section 1016.5 is exceptionally vague, he argues that his pleas were involuntary, but Kim flatly rejects the notion that the courts have the authority to expand the scope of the statutory motion to include constitutional theories of relief. (Kim, supra, 45 Cal.4th at p. 107, fn. 20.) Finally, the courts cannot second-guess the way in which the Legislature fashions a statutory remedy, since that is a public policy issue properly left to the Legislature. (In re Christian S. (1994) 7 Cal.4th 768, 782.) (Id. at ___.) The court therefore found the other issues raised to be moot. (Id. at n.6.)

STATE ADVISAL STATUTE " APPEAL " STANDARD OF REVIEW -- ABUSE OF DISCRETION
People v. Limon (December 11, 2009) 179 Cal.App.4th 1514, 102 Cal.Rptr.3d 580, 2009 WL 4725229 ("An order denying a section 1016.5 motion will withstand appellate review unless the record shows a clear abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, citing People v. Shaw (1998) 64 Cal.App.4th 492, 495-496; see also section 1016.5, subd. (c).) An exercise of a court's discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice constitutes an abuse of discretion. (Shaw, supra, at p. 496.)").

STATE ADVISAL STATUTE " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM CANNOT BE RAISED BY A MOTION TO VACATE UNDER PENAL CODE 1016.5
People v. Limon (December 11, 2009) 179 Cal.App.4th 1514, 102 Cal.Rptr.3d 580, 2009 WL 4725229 (a claim of ineffective assistance of counsel cannot be raised by means of a motion to vacate pursuant to Penal Code 1016.5, since that is not a wrong encompassed by the statute.), quoting People v. Kim (2009) 45 Cal.4th 1078, 1107, n.20; People v. Chien (2008) 159 Cal.App.4th 1283, 1285.

STATE ADVISAL STATUTE " GROUNDS " CLAIM THAT PLEA WAS INVOLUNTARY BECAUSE PENAL CODE 1016.5 WAS VAGUE CANNOT BE RAISED BY A MOTION TO VACATE UNDER PENAL CODE 1016.5
People v. Limon (December 11, 2009) 179 Cal.App.4th 1514, 102 Cal.Rptr.3d 580, 2009 WL 4725229 (a claim that the plea was involuntary because of defects in the wording of Penal Code 1016.5 cannot be raised by means of a motion to vacate pursuant to Penal Code 1016.5, since the courts have no authority to expand the scope of the statutory motion to include constitutional theories of relief); citing People v. Kim (2009) 45 Cal.4th 1078, 1107, n.20.

STATE ADVISAL STATUTE " GROUNDS " CLAIM THAT PLEA WAS INVOLUNTARY BECAUSE PENAL CODE 1016.5 WAS VAGUE CANNOT BE RAISED BY A MOTION TO VACATE UNDER PENAL CODE 1016.5
People v. Limon (December 11, 2009) 179 Cal.App.4th 1514, 102 Cal.Rptr.3d 580, 2009 WL 4725229 (claims that Penal Code 1016.5 is inaccurate plea cannot be raised by means of a motion to vacate pursuant to Penal Code 1016.5, since "the courts cannot second-guess the way in which the Legislature fashions a statutory remedy, since that is a public policy issue properly left to the Legislature."); quoting In re Christian S. (1994) 7 Cal.4th 768, 782.

II. 1016.5 case law
In People v. Dubon (2001) 90 Cal.App.4th 944 [108 Cal.Rptr.2d 914], the Court of Appeal held that a minute order of entry of defendants plea, indicating that the defendant was advised of the consequences of his plea on any alien/citizenship/probation/parole status, without more, was insufficient to establish a record that the defendant received the complete and accurate advisement of immigration consequences of his plea. In that case, Dubon pleaded nolo contendere to allegations that he sold or transported marijuana in violation of Health and Safety Code section 11360, subdivision (a). (Id. at p. 947.) Twelve years after the conviction, INS ordered Dubon deported and he petitioned the trial court for a writ of error coram nobis, contending that he had not been properly advised under 1016.5. At the time of the coram nobis petition, the reporters notes from the plea proceeding had already been destroyed and the transcript was no longer available. A minute order from the plea proceeding was available. The box on the minute order was checked, indicating Defendant advised of possible effects of plea on any alien/citizenship/probation/parole status. (Id. at p. 949.) In addition, the trial judge who presided over the plea proceeding submitted a declaration stating that his practice had always been to advise defendants as required by Penal Code section 1016.5. (Ibid.) The court first noted that a minute order was indeed part of the record within the meaning of section 1016.5, subdivision (b). (Id. at 944.) It then went on to find that, although a minute order may under proper circumstances qualify as a record, here the minute order stated only that Dubon was advised of possible effects on alien or citizenship status. It does not state that Dubon was given the requirement in full, or accurately. (Id. at p. 955.) The court held that, because the minute order did not specify that Dubon was advised his conviction could result in deportation"it stated only that Dubon was advised of the effect of his plea on alien/citizenship status"[w]e cannot conclude the minute order reflected substantial compliance with the statute. [Citations]. Thus, by itself, the minute order in this case was insufficient to establish a record that Dubon had received complete and accurate advisement of the immigration consequences of his plea. (Ibid.) Nevertheless, coupled with the trial judges testimony, the court found that the minute order sufficiently rebutted the statutory presumption of nonadvisement. (Ibid.) Similarly, in People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240 [56 Cal. Rptr.3d 406], the court found that the minute order indicating that the noncitizen defendant was advised of possible effects of plea on any alien/citizenship was insufficient to show that the defendant was advised of all three of the possible immigration consequences before entering a guilty plea to a drug offense, where the only record of the advisement was the minute order. (Id. at p. 1245.) Finally, courts have held that the 1016.5 advisement need not be given orally. (See People v. Quesada (1991) 230 Cal.App.3d 525 [281 Cal.Rptr. 426].) It is sufficient if . . . the advise is recited in a plea form and the defendant and his counsel are questioned concerning that form to ensure that defendant actually read and understands it. (Id. at p. 536.)

POST CON RELIEF " STATE ADVISAL STATUTES
Ar. R.Crim.P. 11(c)(3)(C), Ar. Rules of Court, rule 17.2(f)(2004), Cal. Penal Code 1016.5 (2006); Conn. Gen. Stat. Ann. 54-1j (2006), D.C. Code 1981 Stat. 16-713 (2006), Fla. R. Crim. P. 3.172(c)(8) (2006), Ga. Code Ann. 17-7-93(c) (2006), Haw. Rev. Stat. 802E-2 (2005), Mass. Gen. Laws Ann. ch. 278, 29D (West 1994), Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006), Iowa R. Crim. Proc. 2.8(2)(b)(2005), Me. R. Crim. P. 11(b)(5) (2006), Md. R. 4-242(e) (Michie 2001), Minn. Rule Crim. Proc. 15.10(d)(felonies), 15.02(2)(misdemeanors)(2006), Mont. Code Ann. 46-12-210(f) (2005), Neb. Rev. St. 29-1819.02 (2006), N.C. Gen. Stat. 15A-1022(a)(7)(2006), N.M. Dist. Ct. R.Cr.P. 5-303(F)(5) (2006), N.Y. Crim. Proc. Law 220.50(7) (2006), N.C. Gen. Stat. 15A-1022(a)(7)(2006), Ohio Rev. Code Ann. 2943.031(2006), Ore. Rev. Stat. 135.385(2)(d)(2006), R.I. Gen. Laws 12-12-22 (2006), ex. Code Crim. Proc. Ann. Art. 26.13(a)(4)(2005), Vt. 13 V.S.A. 6565, Wash. Rev. Code Ann. 10.40.200 (2006), Wis. Stat. 971.08(2); Stat. Ann. 971.08(1)(c)(2006).

CAL POST CON " VEHICLES " STATE ADVISAL STATUTE " MOTION TO VACATE UNDER PENAL CODE 1016.5 " COURTS MISADVICE THAT PLEA WILL RESULT IN DEPORTATION MAY CONSTITUTE JUDICIAL MISCONDUCT SINCE IT VIOLATES THE STATUTORY REQUIREMENT TO TELL DEFENDENTS DEPORTATION MAY RESULT
Oberholzer v. Commission on Judicial Performance, 20 Cal.4th 371, 375, 975 P.2d 663 (May 13, 1999) (Commission on Judicial Performance has authority to issue advisory letters, such letters are a form of discipline, its procedures comport with the requirements of due process of law, and such letters may be based upon a perceived legal error, if such error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty).

CAL POST CON " STATE ADVISAL " 1016.5 " PRACTICE ADVISORY
Penal Code 1016.5 requires a statement the plea may trigger adverse immigration consequences. Judges commit judicial misconduct when they violate this statute when they erroneously misinform the defendant that it will do so. They are ignorant of the specific defendants immigration status or immigration consequences of a particular plea, and therefore have no idea whether the plea will or will not result in deportation or other consequences. In the worst case, a defendant is eligible for a waiver of deportation, but mistakenly believes the judges blind misadvice that deportation is mandatory, and fails to seek immigration counsel, discover he can get a waiver, and save his status and life here. Many offenses are not in fact deportable. It is blatantly untrue that every plea automatically triggers deportation. Judges giving false advice to defendants commit judicial misconduct. Judges are not immune from censure for misconduct. Moreover, those judges are also committing the misdemeanor of practicing law without a license by giving actual legal advice (this plea will get you deported) when they have lost the legal right to practice law by taking the bench. Theyre giving legal advice that may well be mistaken, and doing so without any investigation of the facts or law necessary to render a valid legal opinion on that complicated question. Theyre also interfering in the attorney- client relationship by giving legal advice that may be at odds and often should be with defense counsels presumably accurate immigration advice.