Opinion
E051488 Super.Ct.No. RIF144361
09-30-2011
THE PEOPLE, Plaintiff and Appellant, v. JESUS SALVADOR VARGAS, Defendant and Respondent.
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Reversed with directions.
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Respondent.
Defendant and respondent Jesus Salvador Vargas pled guilty to drug charges and was granted probation. Vargas later claimed his counsel was ineffective for affirmatively misinforming him of the immigration consequences of his plea. Vargas eventually sought a writ of habeas corpus, after first having sought a writ of error coram nobis. At the hearing held on July 21, 2010, on his latest petition for writ of habeas corpus, the trial court ruled that habeas corpus was not the procedurally correct vehicle for addressing this claim. Instead, the court granted a writ of error coram nobis setting aside Vargas's guilty plea. The People appeal this order, contending (1) the trial court erred when it addressed Vargas's claim by granting the writ of error coram nobis, and (2) the remedy here is to reverse the trial court's order granting the writ of error coram nobis and allow Vargas to file a properly verified petition for writ of habeas corpus. In response, Vargas (1) agrees that the trial court should have addressed his claim by ruling on his petition for writ of habeas corpus, but (2) contends the remedy is to let stand the trial court's order setting aside the guilty plea, but direct the trial court to correct the minute order to reflect that the trial court granted his petition for writ of habeas corpus, rather than his petition for writ of error coram nobis. As discussed below, we agree with both parties that the proper vehicle for this claim was a petition for writ of habeas corpus. As for the remedy, because neither the petition nor the procedure followed below were adequate to establish that Vargas's constructive custody was illegal, we remand the matter to allow Vargas to file a new petition for habeas corpus that complies with the statutory requirements.
Initially, the trial court, Judge Gordon R. Burkhart presiding, denied the coram nobis petition without prejudice, but the reason is not stated in the minute order. Later, the trial court, Judge Helios (Joe) Hernandez presiding, denied the first habeas corpus petition as improper because Vargas was not in custody. Still later, the trial court, Judge Hernandez presiding, denied Vargas's second petition for habeas corpus as procedurally incorrect, but granted a writ of error coram nobis and vacated the guilty plea. This last ruling is the subject of this appeal.
STATEMENT OF FACTS AND PROCEDURE
On July 30, 2008, the People filed an information charging Vargas with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possessing drug paraphernalia (id., § 11364). Vargas was a legal permanent resident of the United States.
On October 10, 2008, with Judge Hernandez presiding, Vargas pled guilty to possessing methamphetamine and was placed on probation for three years and ordered to serve 365 days in jail. The jail term was concurrent with a probation violation in an earlier case. After Vargas completed his jail sentence, he was detained by federal immigration officials on April 24, 2009, and ordered deported on December 22, 2009. This is because, under title 8 United States Code Annotated section 1227(a)(2)(B)(i), he had been convicted of a crime involving a controlled substance, other than a single offense of possessing marijuana for personal use.
First Coram Nobis Petition—Hearing Continued
On November 30, 2009, Vargas filed with the trial court a document entitled "Notice of Motion/Petition for Writ of Error Coram Nobis to Vacate Judgment and for Dismissal Pursuant to [Penal Code section] 1385." Vargas alleged that his counsel did not advise him of the immigration consequences of his plea. On December 11, 2009, the People filed their opposition, arguing that this claim of ineffective assistance of counsel was not the proper subject of a writ of error coram nobis. The People also argued that relief via a writ of habeas corpus was not available because Vargas was no longer in custody. The hearing set for January 14, 2010, was continued to February 5 pursuant to stipulation.
The record on appeal does not contain any points and authorities, attachments or declarations.
Second Coram Nobis Petition—Denied Without Prejudice—Reason Not Stated
On January 14, 2010, Vargas filed a second coram nobis petition containing considerably more detail, points and authorities, and supporting documents. In the petition, Vargas asked to withdraw his plea, enter a plea of not guilty, and proceed to trial. In the supporting declaration, Vargas declared under penalty of perjury that he had told his public defender that he wanted to go to trial because he did not want an immigration hold placed on him. His counsel told him that "[he] would not have any problems with immigration because after one year [he] could drop the case to a misdemeanor and get the case erased from [his] record." However, after Vargas had completed his jail sentence, he was detained by immigration officials on April 24, 2009, and ordered deported on December 22, 2009. On January 21, 2010, the People filed a "Supplemental Opposition to Defendant's Petition for Writ of Error Coram Nobis," in which it argued there was no need for an evidentiary hearing because Vargas's claim was legally barred. On February 5, 2010, the trial court, Judge Burkhart presiding, held a hearing on the petition, in which it heard argument from both parties. The trial court denied the petition without prejudice.
The minute order, which is the only documentation of this hearing in the record on appeal, does not state the court's reason for denying the petition. At the July 21, 2010 hearing on the second petition for writ of habeas corpus, the prosecution stated that "the reason Judge Burkhart denied the Writ of [Error] Coram Nobis, properly, is that it's not a vehicle for this kind of claim."
First Petition for Writ of Habeas Corpus—Denied as Improper Procedure
On March 25, 2010, Vargas filed a "Notice of Motion/Petition for Writ of Habeas Corpus to Vacate Judgment and for Dismissal Pursuant to [Penal Code section] 1385," along with points and authorities, supporting documents, and Vargas's declaration. This petition requested the same relief as the previous coram nobis petition. On that same date, the trial court, Judge Hernandez presiding, held an ex parte hearing on the petition. Neither of the parties were present. The minute order states: "Motion Denied. [¶] The Court finds that the Defendant is not incustody [sic] and a Writ of Habeas Corpus is not applicable in this matter. [¶] Defense may resubmit the correct Motion or Petition to the Court for review. [¶] Remains released on Probation."
On June 11, 2010, Vargas filed a "Supplemental [Points and Authorities] in Support of Motion [and] Motion to Withdraw Guilty Plea, to Enter a Not Guilty Plea and to Vacate the Judgment Pursuant to [Penal Code section] 1018." The purpose of the motion was to inform the court of the U.S. Supreme Court's decision filed March 31, 2010, in which the court held that defense counsel must advise a noncitizen client of the deportation consequences of a guilty plea and failure to do so would render counsel's performance deficient. (Padilla v. Kentucky (2010) 559 U.S. __ [176 L.Ed.2d 284, 295, 130 S.Ct. 1473, 1483].)
Second Habeas Petition—Granted as Writ of Error Coram Nobis
On June 24, 2010, Vargas filed a new habeas corpus petition and a supplemental memorandum of points and authorities. The People filed their opposition to the petition on July 2 and their opposition to the supplemental points and authorities on July 20, 2010.
On July 21, 2010, the trial court, Judge Hernandez presiding, held a hearing on the habeas corpus petition. The minute order states that Vargas was not present because he had been deported, but counsel and the trial court appeared to understand that Vargas was in federal immigration custody. Counsel for Vargas argued that possessing methamphetamine, to which Vargas pled guilty, is a deportable offense, and that Vargas would have gone to trial if his public defender had not misinformed him that he could have the conviction expunged under Penal Code section 1203.4. Both the prosecution and counsel for Vargas argued that habeas corpus was the proper vehicle for bringing this claim because Vargas was still in constructive custody and the crux of his argument was ineffective assistance of counsel. They cited People v. Villa (2009) 45 Cal.4th 1063 and People v. Kim (2009) 45 Cal.4th 1078 for the proposition that a defendant is in state custody and eligible for habeas corpus relief while on parole. After hearing argument from both parties, the trial court denied the petition for writ of habeas corpus, reasoning that Vargas was in federal custody rather than in the custody of Riverside County. The trial court then ruled that the proper procedural vehicle is a common law writ of error coram nobis and that, because defense counsel had affirmatively misadvised Vargas that he would suffer no immigration consequences from his plea, he should be allowed to withdraw his guilty plea. The court vacated the guilty plea and issued a bench warrant in the amount of $50,000 for failure to appear. This appeal followed.
Vargas will remain on formal probation until October 10, 2011.
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DISCUSSION
The parties agree that the trial court should have addressed Vargas's claim for relief using the procedures set forth for habeas corpus relief. They only disagree as to the remedy. The People contend Vargas should be required to submit a new petition for writ of habeas corpus that complies with the statutory requirements. Vargas argues that this court should deem the trial court's order issuing a writ of coram nobis to be instead an order granting his petition for writ of habeas corpus. As discussed below, we have no choice but to leave Vargas with the remedy of filing a new petition for writ of habeas corpus.
Vargas's June 24, 2010, petition and supporting documents did not fulfill the many requirements for filing a petition for writ of habeas corpus in the superior court. Most important, although Vargas included his own declaration describing how his trial counsel affirmatively misinformed him of the immigration consequences of his guilty plea and his detrimental reliance on that advice, he did not provide any corroboration in the form of a supporting affidavit by trial counsel. This was not enough. Because "the burden is on the petitioner to establish grounds for his release," the petition must include "copies of reasonably available documentary evidence supporting the claim, including . . . affidavits or declarations." (People v. Duvall (1995) 9 Cal.4th 464, 474.) "If documentary evidence is not available, the petition should include an explanation of why such evidence has not been included with the petition." (Appeals and Writs in Criminal Cases (Cont.Ed.Bar 3d ed. 2011) § 10.4, p. 497.) Here, the petition did not include an explanation for why a supporting affidavit from Vargas's trial counsel was not included. As the People argue, the court here simply accepted the representations in Vargas's declaration without corroboration when it granted him relief.
Neither did the procedure followed by the superior court adequately protect the rights of the People. The trial court did not issue an order to show cause (OSC) signifying "the court's preliminary determination that the petitioner has pleaded sufficient facts that, if true, would entitle him to relief." (People v. Duvall, supra, 9 Cal.4th at p. 475.) This would have then required the People to file a return addressing the legal and factual issues specified in the OSC and Vargas would then have filed a traverse. The trial court could then have ordered an evidentiary hearing to test the factual allegations and supporting evidence put forth by both sides. (See id. at pp. 475-478.) This did not happen here. As stated above, the court accepted Vargas's account of his conversations with trial counsel and his reasons for pleading guilty without requiring corroborating evidence. These deficiencies are not those of mere procedural niceties; rather, they go to the heart of the factfinding necessary to justify the superior court's conclusion that the People's constructive custody of Vargas was illegal. For this reason, we reverse the superior court's order granting the writ of error coram nobis and remand the matter to allow Vargas to file a petition for writ of habeas corpus that complies with all statutory requirements.
DISPOSITION
The trial court's order granting the writ of error coram nobis is reversed and we remand the matter to allow Vargas to file a new petition for writ of habeas corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
MILLER
J.