Opinion
NOT TO BE PUBLISHED
APPEALS from order denying motion to vacate judgments of the Superior Court of Merced County Nos. 25946 & 29261 ORIGINAL PROCEEDINGS; petitions for writ of habeas corpus. Hugh M. Flanagan, John D. Kirihara, Carol K. Ash, and Daniel Creed, Judges.
Retired judge of the Santa Clara Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Lawrence E. Ayres; Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Though lawfully admitted to the United States in 1989, Jaime Rodarte Duran never became an American citizen. In 2001 and 2004, he inappropriately touched two young women in Merced County, for which he twice pled nolo contendere to sexual battery. (Pen. Code, § 243.4, subd. (a).) Originally granted probation with a county jail term in the 2001 case, he agreed in 2005 to a negotiated disposition revoking his probation and imposing a one-year prison term in the 2001 case and imposing a two-year prison term in the 2004 case.
Later statutory references are to the Penal Code except where otherwise noted.
In 2007, federal immigration authorities initiated proceedings to remove Duran from the United States. In 2008, he filed, and the court denied, a section 1016.5 motion to vacate the judgments in both cases and a petition for writ of habeas corpus in each case.
On appeal, he challenges the denial of his motion as an abuse of discretion. On habeas corpus, he challenges the assistance of his counsel as ineffective. We affirm the orders denying the motion to vacate the judgments and deny the petitions for writ of habeas corpus.
FACTUAL BACKGROUND
On February 26, 2001, Duran grabbed a high school student by the arm and asked her for a hug. She tried to pull away. He held her tightly, touched her crotch through her clothes, and repeatedly tried to kiss her. He fled when he saw her father approaching.
On May 14, 2004, Duran asked a college student for a hug and put his arms around her, but she pushed him away and got into her car. He lay on top of her and touched her breasts and her crotch through her clothing. She pushed him out of her car and drove off.
PROCEDURAL BACKGROUND
On March 6, 2001, the district attorney filed a complaint charging Duran with the commission of three crimes on February 26, 2001 – felony sexual battery (§ 243.4, subd. (a)), felony false imprisonment (§ 236), and misdemeanor driving while his privilege was suspended or revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a)).
On June 25, 2001, Duran pled nolo contendere to sexual battery in return for dismissal of the other two charges and for a grant of probation with a one-year county jail term. On August 9, 2001, the court granted him probation and committed him to county jail for one year.
On February 11, 2004, the probation officer filed an affidavit of probation violation on the grounds of Duran’s nolo contendere plea on March 25, 2003, to misdemeanor driving under the influence (Veh. Code, § 23152) and on May 27, 2003, to reckless driving as a substitute for an original charge of driving under the influence (Veh. Code, §§ 23103.5, 23152). On June 7, 2004, the probation officer filed an affidavit of probation violation on the grounds of his commission of two felonies on May 14, 2004 – assault with intent to commit a sex crime (§ 220) and false imprisonment (§ 236). On November 4, 2004, the district attorney filed an information in the 2004 case charging him with those crimes.
On March 29, 2005, Duran agreed to a negotiated disposition of both cases and executed a written “advisement of rights, waiver, and plea form.” In open court, the prosecutor represented that the negotiated disposition included a nolo contendere plea to an amended information charging sexual battery (§ 243.4, subd. (a)) in the 2004 case and the imposition of an aggregate three-year sentence (a two-year term in the 2004 case, and, on the basis of judicial notice of his plea, a consecutive one-year term in the 2001 case). Duran concurred, waived his rights, and pled nolo contendere. The court imposed judgment pursuant to the negotiated disposition.
On December 3, 2007, the Department of Homeland Security (DHS) personally served Duran with a notice to appear in removal proceedings under Immigration and Nationality Act (INA) section 240 (8 U.S.C. § 1229a). The notice alleged that he was admitted to the United States as an immigrant in San Francisco on September 17, 1989; that he is a citizen or national not of the United States but of Mexico; and that he is subject to removal from the United States under, inter alia, INA section 237(a)(2)(A)(iii) (8 U.S.C. §§ 1227(a)(2)(A)(iii)) for his conviction in Merced County on June 25, 2001, of sexual battery (§ 243.4, subd. (a)), an aggravated felony involving sexual abuse of a minor as defined in INA section 101(a)(43)(A) (8 U.S.C. § 1101(a)(43)(A)), and INA section 237(a)(2)(A)(iii) (8 U.S.C. §§ 1227(a)(2)(A)(iii)) for his conviction in Merced County on March 29, 2005, of sexual battery (§ 243.4, subd. (a)), an aggravated felony involving a crime of violence with a term of imprisonment of at least one year as defined in INA section 101(a)(43)(F) (8 U.S.C. § 1101(a)(43)(F)).
On April 3, 2008, Duran filed a section 1016.5 motion to vacate the judgments and petitions for writ of habeas corpus in both cases. In the motion, he argued that the court did not adequately advise him of the immigration consequences of his nolo contendere plea, that he did not know of those consequences and his attorney advised him there were none, and that he would have sought different dispositions of both cases had he known. In the petitions, he alleged that he did not know (and his attorneys did not advise him) of the immigration consequences of his pleas until DHS took him into custody seeking his removal from the United States, and that he would have sought different dispositions of both cases had he known.
On April 16, 2008, the court held a hearing on the motion and on the petitions. On May 27, 2008, the court denied the motion. On June 25, 2008, the court denied the petitions. On July 1, 2008, Duran filed a notice of appeal.
On August 21, 2008, Duran filed appellant’s opening briefs in both cases. In the 2001 case, he sought to appeal the denial of his petition for writ of habeas corpus. In the 2004 case, he appealed the denial of his motion to vacate the judgments and sought to appeal the denial of his petition for writ of habeas corpus.
On October 20, 2008, the Attorney General filed a motion to strike appellant’s opening brief in the 2001 case on the grounds that an order denying a petition for writ of habeas corpus is nonappealable and that the brief failed to comply with applicable rules of court. On November 12, 2008, Duran filed two requests – one to consider the notice of appeal as a petition for writ of habeas corpus in each case and the other to consolidate both appeals – and his retained appellate counsel filed motions to withdraw as counsel of record in both cases.
On November 18, 2008, the same day on which the Attorney General filed respondent’s briefs in both cases, we denied the Attorney General’s motion to strike appellant’s opening brief in the 2001 case; granted Duran’s requests in part; ordered that issues cognizable on appeal receive appellate review and that issues cognizable on habeas corpus receive habeas corpus review; consolidated the appeals; and directed the clerk/administrator to prepare copies of appellant’s opening briefs and respondent’s briefs in both cases, to deem the copies of appellant’s opening briefs to be petitions for writ of habeas corpus and the copies of respondent’s briefs to be responses to the petitions in both cases, and to assign separate case numbers to both habeas corpus matters.
On December 5, 2008, we granted Duran’s retained appellate counsel’s motions to withdraw as counsel of record in both cases. On February 10, 2009, we appointed appellate counsel to represent Duran in the consolidated appeal.
On April 20, 2009, Duran’s appointed appellate counsel filed a request for the filing of supplemental briefing in the consolidated appeal (a supplemental appellant’s opening brief, a supplemental respondent’s brief, and a supplemental appellant’s reply brief) and filed an application for the expansion of appointment to file a petition for writ of habeas corpus in the 2004 case. She noted the holdings in People v. Kim (2009) 45 Cal.4th 1078 (Kim) that a petition for writ of habeas corpus can, but a motion to vacate the judgment cannot, challenge as ineffective assistance of counsel an attorney’s failure to advise a client about the immigration consequences of a plea and the holding in In re Clark (1993) 5 Cal.4th 750 that a petition for writ of habeas corpus in the Court of Appeal can seek review of a superior court order denying a petition for writ of habeas corpus but that the order is not appealable.
On May 1, 2009, we granted the request for the filing of supplemental briefing in the consolidated appeal and granted the application for the expansion of appointment to file a petition for writ of habeas corpus in the 2004 case. On May 28, 2009, Duran’s appellate counsel informed the clerk/administrator’s office of her intent not to file a petition for writ of habeas corpus in the 2004 case. On September 15, 2009, on our own motion, we consolidated the petitions for writ of habeas corpus with the consolidated appeal.
DISCUSSION
1. Motion to Vacate Judgments
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 (Zamudio), citing People v. Shaw (1998) 64 Cal.App.4th 492, 495-496; see also section 1016.5, subd. (c); see generally People v. Totari (2002) 28 Cal.4th 876, 879.) 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.)
Bearing in mind the applicable standard of review, we turn to the statute. “In Penal Code section 1016.5, the Legislature explicitly acknowledged the motion to vacate the judgment as the appropriate vehicle to clear the way for a postjudgment withdrawal of a guilty or nolo contendere plea entered without advisement of the possible immigration consequences.” (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617 (Castaneda), italics added.) Here, in both cases, Duran entered his nolo contendere pleas with advisement of the possible immigration consequences.
On June 25, 2001, the court inquired of Duran before accepting his nolo contendere plea in the 2001 case, “Do you realize by entering this plea you could be deported, excluded from re-admission into the United States or denied citizenship pursuant to the laws of the United States? Do you understand that?” (Italics added.) He replied, “Yes.” The court’s use of the word “could” is, of course, similar to the statute’s use of the word “may.” (§ 1016.5, subd. (a).) Prudently, since “substantial, not literal, compliance with section 1016.5 is sufficient,” Duran does not challenge the court’s use of “could” instead of “may” before accepting his nolo contendere plea in the 2001 case. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174, citing Zamudio, supra, 23 Cal.4th at p. 208.)
On May 29, 2005, Duran executed a written “advisement of rights, waiver, and plea form” in the 2004 case and initialed, inter alia, the statements, “I understand that if I am not a citizen, my guilty or no contest plea will result in my deportation (removal), exclusion from the United States, and denial of naturalization,” and, “I understand that my guilty or no contest plea in this case may be grounds for violating probation or parole which has previously been granted to me in any other case.” (Italics added.) At the change of plea proceedings later that day, Duran’s attorney informed the court of “an advisement of the rights form” on which his client had “initialed all the appropriate boxes. It’s been signed by myself and [the deputy district attorney].” The court responded, “Mr. Duran, I’m holding in my hand a waiver of rights form. [¶] Did you read this form?” “Yes,” he replied. The court asked him, “Did you understand the form?” “Yes,” he again replied. The court asked him, “You give up the rights contained therein?” “Yes, sir,” he answered. Shortly afterward, the court accepted his plea and imposed judgment in both cases pursuant to the terms of the negotiated disposition.
Duran acknowledges case law holding that section 1016.5 requires “no more” if the record on appeal includes a change of plea form with the statutory language about immigration consequences and a court inquiry showing review, understanding, and waiver by the defendant of his or her rights. (See, e.g., People v. Ramirez (1999) 71 Cal.App.4th 519, 521-523; Castaneda, supra, 37 Cal.App.4th at pp. 1619-1620; People v. Quesada (1991) 230 Cal.App.3d 525, superseded by statute on another ground as stated by People v. Totari (2003) 111 Cal.App.4th 1202, 1206, fn. 5.) The statutory language states, “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (§ 1016.5, subd. (a), italics added.) His waiver of rights form acknowledged his understanding that his “guilty or no contest plea will result” (not just could or may result) in conjunctively (not just disjunctively) his “deportation (removal), exclusion from the United States, and denial of naturalization.”
Even so, Duran argues that “a showing of adequate compliance with section 1016.5 is lacking because Spanish is his primary language and because he still suffers comprehension and memory deficits from a serious head injury. (Italics added.) His motion abundantly informed the superior court of those circumstances. “Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; see § 1016.5, subd. (c).) Since the requisite showing is lacking, his statutory claim for relief is meritless.
On that foundation, we briefly address Duran’s two other issues. First, on the premise that he was “affirmatively misadvised” of the immigration consequences, he argues that his pleas were involuntary. (Cf. Boykin v. Alabama (1969) 395 U.S. 238, 242-243 & fn. 5; In re Tahl (1969) 1 Cal.3d 122, 130-132.) However, our Supreme Court rejects the notion that the courts have the authority to expand the scope of the statutory motion to include a constitutionaltheory of relief. (See Kim, supra, 45 Cal.4th at p. 1107, fn. 20.) Second, he argues that the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 implemented comprehensive changes to immigration law that section 1016.5 does not reflect. Having shown concern by the enactment of section 1016.5 “that those who plead guilty or no contest to criminal charges are aware of the immigration consequences of their pleas,” the Legislature “remains free to enact further statutory remedies for those in defendant’s position.” (Kim, supra, 45 Cal.4th at p. 1107.) However, the courts cannot second-guess how 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.)
2. Petitions for Writ of Habeas Corpus
“Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.” (§ 1473, subd. (a).) “The key prerequisite to gaining relief on habeas corpus is a petitioner’s custody.” (People v. Villa (2009) 45 Cal.4th 1063, 1069.) On May 5, 2009 – over four years after the court imposed an aggregate three-year sentence in both cases on March 29, 2005, and almost a year and a half after the DHS commenced removal proceedings on December 3, 2007 – the DHS released Duran from Immigration and Customs Enforcement custody in Arizona and removed him from the United States. He is “in neither actual nor constructive custody for state habeas corpus purposes.” (Kim, supra, 45 Cal.4th at p. 1108.) We deny his petitions for writ of habeas corpus.
DISPOSITION
The order denying the motion to vacate the judgment in People v. Duran (F055632) is affirmed.
The petition for writ of habeas corpus in In re Duran (F056483) is denied.
The order denying the motion to vacate the judgment in People v. Duran (F055634) is affirmed.
The petition for writ of habeas corpus in In re Duran (F056488) is denied.
WE CONCUR: Cornell, Acting P.J., Hill, J.