Filed 12/21/20 P. v. Resendiz CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D076804 Plaintiff and Respondent, v. (Super. Ct. No. SCN375166) DONACIANO C. RESENDIZ, Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Peter James Musser for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent. Donaciano Resendiz, a legal permanent resident, entered into a plea bargain under which he pleaded guilty to possession of a controlled substance for sale (Health & Saf. Code, § 11378) and admitted a strike prior, in exchange for receiving a stipulated 32-month sentence and the prosecutor’s agreement not to oppose placement in “fire camp.” After Resendiz completed his sentence, he was transferred to immigration custody for deportation proceedings based on his conviction in this case. Resendiz then moved to vacate his conviction and withdraw his guilty plea under Penal Code section 1473.7, subdivision (a)(1),1 which permits withdrawal of a guilty plea when the defendant establishes “prejudicial error damaging [his or her] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea . . . .” After a thorough evidentiary hearing, the court denied the motion. Resendiz raises three challenges on appeal. First, he contends his plea counsel failed to adequately advise him regarding the adverse immigration consequences of his guilty plea. However, both Resendiz and his plea counsel testified at the evidentiary hearing on this issue, and the trial court expressly found plea counsel more credible in his assertion that he had advised Resendiz he would be deported as a result of his guilty plea. Moreover, the court found that the judge who accepted Resendiz’s guilty plea had expressly advised Resendiz he would be deported as a result. Second, Resendiz contends his plea counsel failed to bargain for an immigration-neutral disposition. Although Resendiz presented testimony from an immigration attorney asserting immigration-neutral dispositions were available, Resendiz failed to meet his burden of introducing any evidence establishing the prosecution was likely to have agreed to any of those dispositions. Finally, Resendiz contends the prosecutor who conducted the plea negotiations failed to fulfill his statutory obligation to “consider the avoidance of adverse immigration consequences in the plea negotiation process . . . .” (§ 1016.3, subd. (b).) However, the prosecutor opposing Resendiz’s motion 1 Further unspecified statutory references are to the Penal Code. 2 represented to the court that his colleague had, in fact, considered the adverse immigration consequences of the guilty plea. The ...
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