Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA042370, Janice C. Croft, Judge.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Cheuk Fong Yong appeals from an order denying his motion to withdraw his plea of no contest and his petition for a writ of coram nobis. We affirm.
FACTS AND PROCEEDINGS BELOW
Yong is a lawful permanent resident of the United States. An information filed in the Los Angeles County superior court charged him with possession of methamphetamine for the purpose of sale in violation of Health and Safety Code section 11378 and transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a).
In 2000, Yong pleaded no contest to the possession for sale, a felony, and the court dismissed the transportation charge. Pursuant to the plea agreement, the court postponed Yong’s probation and sentencing hearing until after he served 180 days (120 days of actual custody and 60 days good/work time credit) and was released from county jail. The following colloquy occurred at the plea hearing:
“[DEFENSE COUNSEL]: [Defendant] was going to be remanded and do his time, do his 180. After he did that and after he was released then he would plead and be sentenced then do the program and that way when he gets released from county jail and goes through I.N.S. clearance he’s not going to have this conviction. I just made a mistake and I assumed it was the sentencing that caused the immigration ramification. Now I realize it’s the conviction. (Italics added.)
“THE COURT: You are just talking about getting out of county jail without the immigration person talking to [him]. If he’s not sentenced then they aren’t going to talk to [him] because he has another court date. (Italics added.)
“. . . .
“[DEFENSE COUNSEL]: This was discussed and I believe agreed upon.”
The court then explained the procedure followed by Miss Hope, the deputy District Attorney normally assigned to this courtroom.
“THE COURT: What Miss Hope has done in the past, take a plea, we put sentencing over. We put him down in the county jail for 180 days, 120. We order them out on that date. We then release them. They then come back after they are released from county jail because they haven’t been sentenced so immigration can’t touch [them] … and then we sentence them and they do the drug program but we’ve always taken the plea.
“[DEFENSE COUNSEL]: That would be acceptable your Honor and in the event that possibly I’m mistaken, on the highly unlikely event the court is mistaken, after Mr. Yong does his time and fails to get released I imagine the court would entertain a motion to withdraw the plea after he had already done his time. (Italics added.)
“THE COURT: Sure.”
Before Yong entered his no contest plea, the prosecutor advised him: “[I]f you are not a citizen of the United States, your plea in this matter will result in your deportation, exclusion from admission and denial of naturalization under the laws of the United States.” After Yong served his time in county jail, the court held a probation and sentencing hearing. At the hearing, the court suspended sentencing and placed Yong on formal probation for three years on the condition that he serve 180 days in county jail (which he already completed) and that he also spend 180 days in an out-patient drug program.
Four years later, Yong was convicted in the Orange County Superior Court of transporting a controlled substance in violation of Health and Safety Code section 11379, subdivision (a). The court sentenced him to a two-year prison term.
The Department of Homeland Security (DHS) became aware of Yong’s immigration status while he was serving his sentence on the Orange County conviction and initiated removal proceedings against him. The immigration judge found that Yong was subject to removal based on his 2000 Los Angeles County conviction of possession of methamphetamine for sale.
While Yong’s appeal from the removal order was pending in the Ninth Circuit, he filed a motion to withdraw his plea in the Los Angeles County case and a petition for a writ of coram nobis. The court denied the motion and the petition and Yong filed a timely appeal.
As of the date of filing this opinion Yong’s appeal was still pending in the Ninth Circuit. (S-Yong v. Mukasey, (9th Cir., app. pending, No. 07-70619).)
DISCUSSION
The trial court properly denied Yong’s motion to withdraw his plea and his petition for a writ of coram nobis because both are based on the faulty factual premise that the trial court stated that the immigration authorities would not incarcerate Yong for his conviction of methamphetamine for sale and, if they did, the court would allow him to withdraw his plea.
The colloquy between the court and Yong’s defense counsel, however, at most, shows that the court agreed it would allow Yong to withdraw his plea if he was seized by immigration authorities before he was released from county jail on the pending charges. The court did not state or imply that immigration authorities would never catch up with Yong or if they did the court would allow him to withdraw his plea. Indeed, before the court accepted the plea, the prosecutor advised Yong that his plea could result in deportation.
DISPOSITION
The order is affirmed.
We concur: MALLANO, P. J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.