Opinion
H030588
5-23-2007
THE PEOPLE, Plaintiff and Respondent, v. DASARATHI RAGHUNATH, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Dasarathi Raghunath appeals from the denial of his motion to vacate his 1992 pleas to a felony violation of Penal Code section 647.6 and a misdemeanor violation of section 314.1. The motion alleged that the trial court and trial counsel failed to advise him of the immigration consequences of his pleas, which were now the basis of deportation proceedings against him. In a written order, the trial court denied the motion. Defendant timely appealed. We appointed counsel to represent defendant in this court.
Unless otherwise indicated, all statutory references are to the Penal Code.
Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. He has filed and we have reviewed his "Appellants Supplemental Brief." Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and considered the points raised in defendants brief. Having concluded that there are no arguable issues on appeal, we now affirm.
SUMMARY OF THE CASE AND FACTS
In 1992, defendant entered a plea of no contest to a felony (annoying a child, § 647.6) and a misdemeanor (indecent exposure, § 314.1) in Santa Clara County Superior Court, pursuant to a plea disposition. The court suspended imposition of sentence and placed defendant on formal probation for three years with certain terms. The charges arose out of an incident at a retail store where defendant worked as a clerk. A 12-year-old girl and her mother testified at the preliminary hearing that they were shopping at the store and the minor testified that the defendant exposed his genitals to her in the store and in the parking lot.
Included in the record on appeal is the reporters transcript of the plea proceedings held on January 13, 1992. It shows that when defendant entered his plea to each count, he was advised of his rights and of the consequences of his plea, including the following:
"The Court: If youre not a citizen of the United States, a conviction for this offense for which you stand accused ... could result in your being deported, denied re-entry if you leave the United States and try to come back, or in the future if you apply to be a naturalized citizen or seek residence the United States government might reject that application."
Shortly thereafter, he responded that he understood and gave up each of the rights that had been explained to him.
Defendant successfully completed probation and in March 2004, the criminal record in this case was expunged pursuant to section 1203.4.
Defendant has been a lawful permanent resident since 1984. In 2005, upon returning to the United States from a trip to India, he was denied admission. Thereafter he was placed in custody by the Department of Homeland Security, facing an order of deportation based on the conviction in 1992.
A 1986 misdemeanor conviction was also cited as a basis for denial of admission, but is not a part of defendants motion.
On July 18, 2006, defendant filed a motion in Santa Clara County Superior Court entitled "Motion to Vacate Conviction," claiming that he "was not advised of any future immigration consequences of a plea of no contest" by the court or by counsel. In a declaration, he stated: "[H]ad I been advised of the severe consequences of deportation, I would not have changed my plea of not guilty to no contest. Instead I would have gone to trial."
In an order summarily denying the motion, filed August 15, 2006, the trial court treated the motion as a "Petition for Writ of Coram Nobis" claiming ineffective assistance of counsel and failure of the court to advise him of immigration consequences. As to the first claim, the court found that a claim of ineffective assistance of counsel cannot be presented through coram nobis and that "this court no longer has habeas corpus jurisdiction in this case." As to the second claim, the court found that defendant failed to establish that he was prejudiced by a failure of advisement.
DISCUSSION
In his brief, defendant makes three arguments: (1) The trial court failed "to consider his argument on ineffective assistance of counsel," (2) the trial courts "decision is a `Boiler Plate Decision " and (3) the trial court erred "regarding the proper avenue to pursue the claims of relief."
As to the first and third arguments, the trial court correctly determined that defendant could not raise a claim of ineffective counsel through coram nobis. California courts have repeatedly held that claims of ineffective assistance of counsel in pre-guilty plea advice are "not an appropriate basis for relief by writ of coram nobis. [Citations.] The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by petition for a writ of habeas corpus." (People v. Soriano (1987) 194 Cal.App.3d 1470, 1477; see also People v. Odlum (1949) 91 Cal.App.2d 761; People v. Sharp (1958) 157 Cal.App.2d 205.) For defendant, the time for direct appeal expired long ago. Furthermore, relief through habeas corpus is not available to defendant. In In re Azurin (2001) 87 Cal.App.4th 20, 24, the Court of Appeal determined that a person who alleged that as a result of his guilty plea he was " `unlawfully restrained of his liberty upon deportation proceedings " by the INS, but who was no longer in the actual or constructive custody of the state, "did not meet the habeas corpus jurisdictional requirements of California law." (Id. at p. 26.)
As for defendants second contention, that the judges statement of reasons in his order amounted to nothing more that a "boilerplate" statement of legal standards devoid of any individualized review of defendants claims, the record does not support defendants sweeping assertion. The trials written order acknowledged and addressed each of defendants contentions.
For example, as evidence that the court made no "individualized or ... comprehensive assessment" of his claims, defendant points to the fact that the court "made no finding whatsoever on [defendants] claim to ineffective assistance of counsel." However, the court made no finding because the claim of ineffective assistance of counsel was not properly before it.
Defendant also claims the court specifically failed to address his claim of prejudice. However, the court did address defendants claim of prejudice in the context of defendants statutory claim, pursuant to section 1016.5, that he suffered prejudice from the trial courts failure to advise him of the immigration consequences of his pleas. That statutory claim — unlike the claim of ineffective assistance of counsel — was properly before the court. In this respect, the court correctly stated the law. "[W]hen ruling on defendants section 1016.5 motion, the trial court ... err[s] in failing to consider, not only whether it formerly had failed to advise defendant as section 1016.5 requires and whether, as a consequence of his conviction on the offense to which he pleaded nolo contendere, defendant actually faces one or more of the statutorily specified immigration consequences, but also whether defendant was prejudiced by the courts having provided incomplete advisements." (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 200, fn. omitted.) Prejudice in this context means "whether it is `reasonably probable the defendant would not have pleaded guilty if properly advised." (Id. at p. 210.)
In the related context of ineffective assistance of counsel for failure to advise of immigration consequence, our Supreme Court has held that the defendants claim that he would not have entered his plea " `must be corroborated independently by objective evidence. " (In re Resendiz (2001) 25 Cal.4th 230, 253.) From our review of the record, we find no such objective evidence. Defendant presented only his declaration with his uncorroborated assertions. This was not sufficient. Thus, defendant failed to make the necessary prima facie showing, and the trial court did not err in finding that defendants petition did not allege the existence of any independently corroborative facts, such as the fact that "he could have negotiated a plea without the adverse immigration consequences he now faces, or that he had a colorable defense to the charged offense" that he gave up. We reject defendants claim that the trial court failed to render an individualized decision.
Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The judgment is affirmed.
We concur:
Bamattre-Manoukian, Acting P.J.
Duffy, J.