Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. MA002937 Carol Koppel, Judge.
Neda A. Zaman for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Lisa J. Brault, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P. J.
Daniel Abergel appeals from an order denying his motion to vacate and withraw his no contest plea, on grounds he was inadequately advised of its immigration consequences, and received ineffective assistance of counsel with respect to that subject. We affirm the order, because the record of appellant’s plea shows that he was properly advised, and he has not made out a prima facie case of ineffective assistance, a claim that is also not cognizable under the procedure appellant chose.
FACTS
Appellant is a citizen of Israel. In 1991, he and four others were charged by criminal complaint with sale of cocaine (Health & Saf. Code, § 11532) and conspiracy to commit that offense (Pen. Code, § 182). On August 23, 1991, pursuant to a negotiated disposition, appellant pled no contest to one count of possession of cocaine for sale (Health & Saf. Code, § 11351), for which he would be sentenced to five years probation, the first year to be served in county jail.
Immediately before appellant entered his plea, the prosecutor advised him, and several co-defendants who also intended to plead, of the following consequence of the plea (among others): “If you are not a citizen of this country, by entering this plea it can result in your being deported, denied your citizenship, denied re-entry, or affect any claim for amnesty.” A moment later, appellant affirmatively answered the question whether he understood the stated consequences of the plea, and he reaffirmed that a few minutes later. In addition, appellant said he had had enough time to speak with his attorney, and he had no questions for either his attorney, or the prosecutor, or the court.
Appellant was sentenced on September 13, 1991. After immigration service proceedings, he was deported to Israel on January 15, 1992. According to documents appellant filed below, he was then admitted to the United States in March of 1992, on a nonimmigrant visa with an expiration date of September 5, 1992. Appellant proceeded to remain in the United States, where he was married in 1993, and fathered three children.
In 2005, on appellant’s motion under Penal Code section 1203.4, the superior court reduced appellant’s conviction to a misdemeanor, and then set aside his plea and dismissed the case. This dismissal did not, however, eliminate the federal immigration consequences of the conviction. (See Ramirez-Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1174.) In July 2006, appellant filed the present motion, also styled a petition for writ of error coram nobis, to set aside his no contest plea and the judgment of conviction. Appellant argued that he had entered his plea 15 years earlier without knowledge of its consequences, and that his trial counsel had performed ineffectively.
In a declaration in support of his motion, appellant stated that to his best recollection no advisement of the immigration consequences of his plea was given when he pled. He had believed that after compliance with the conditions of probation there would follow no criminal or immigration consequences. Had he known of those consequences, including perpetual exclusion from the United States, he would not have pled “guilty.” Similarly, he would have asked counsel or the court about the exact immigration consequences of the plea, and upon knowing them he would have refused the plea agreement. Appellant also described his family, business, and other ties to the United States.
Appellant later filed a second declaration, in which he stated that when he entered the disposition and pled, he had been in the United States for about one and one-half years and barely understood English, and his comprehension of the proceeding was “minimal.” He was never asked if he needed an interpreter. Appellant further declared that his attorney had advised him to plead so as to receive a one-year sentence. Under it, he would spend only three months in confinement, in addition to the three months he had already served, whereas if he were convicted he would receive a 10-year sentence. In essence, the attorney’s advice was that if appellant pled guilty he would “go home”; but instead he was deported.
Appellant also filed a declaration by Alex Kessel, who had been his attorney for the original proceedings, including the plea. Kessel stated that although he could not recall the specific course of proceedings in appellant’s case, in 1991 it was his normal custom and practice to advise clients “in a general sense of the immigration consequences of their guilty plea.” Before they pled, he generally advised them “consistent with the language of Penal Code Section 1016.5.” Kessel added that in 1991 he believed from experience that convicted persons would not “categorically” be subjected to deportation proceedings.
Finding that appellant had been adequately advised before he pled, the superior court denied the motion to vacate. Appellant appealed.
We initially dismissed the appeal, on respondent’s motion. After further briefing by appellant, we vacated the dismissal and reinstated the appeal.
DISCUSSION
Appellant contends that his plea should be vacated because of inadequate advisement of its immigration consequences when he pled, and because his attorney rendered ineffective assistance in that regard. Neither claim has merit.
The requirement of an immigration advisement before entry of a guilty or no contest plea appears in Penal Code section 1016.5. Subdivision (a) of the section provides that before accepting such a plea, “the court shall administer the following advisement on the record to the defendant: [¶] 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.” Subdivision (b) provides that if the defendant is not so advised, and shows that the conviction may have one of the described consequences, the court on motion shall vacate the judgment, allow withdrawal of the plea, and enter a plea of not guilty. This remedy requires a showing of prejudice, that is, that the defendant would not have pled if the advisement had been given. (People v. Superior Court (Zamudio)(2000) 23 Cal.4th 183, 192, 210 (Zamudio).)
The trial court soundly ruled that appellant was adequately advised before his no contest plea. The advisements appellant received in court were very similar to those this court found statutorily sufficient in People v. Gutierrez (2003) 106 Cal.App.4th 169, 171, 174. We there held that “denied re-entry” was equivalent to the statute’s “exclusion from admission to the United States.” (Id. at p. 174, citing Zamudio, supra, 23 Cal.4th at p. 207.) Appellant’s claim that these admonitions did not express the permanence of the exclusion ignores and contradicts their natural meaning.
The remainder of appellant’s argument asserts ineffective assistance by appellant’s original counsel, Kessel. Procedurally and jurisdictionally, the present appeal is not the proper vehicle to assert ineffective assistance of counsel. The appropriate initiating procedure for such a claim is not coram nobis but habeas corpus. (See In re Resendiz (2001) 25 Cal.4th 230, 237, fn. 2; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) Even if we were to treat appellant’s petition in the trial court as one for habeas relief, the denial of a habeas petition by the trial court is not appealable to this court; a new original petition would have to be filed here. (People v. Gallardo (2000)77 Cal.App.4th 971, 983.)
Whether a defendant whose sentence has been served and who is not on probation or parole satisfies the “in custody” requirement for habeas relief when in the custody of federal immigration authorities is currently before our Supreme Court. (People v. Villa (2007) 148 Cal.App.4th 473, review granted June 13, 2007, S151561.)
Finally, we observe that appellant’s position appears insufficient on the merits. First, notwithstanding appellant’s legal argument, there is no factual showing Kessel either advised appellant he would not be deported, or otherwise affirmatively misadvised him. Second, appellant has not shown that his attorney was responsible for any claimed failure by appellant to comprehend the consequences of his plea at the time it was taken. The record reflects that appellant was fully advised of those consequences, and that he twice stated that he understood them. As to the requirement that a defendant claiming ineffective assistance of counsel must also show prejudice (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050-1051), there is nothing presented in appellant’s argument that suggests appellant would have received a more favorable result if he had taken the case to trial.
DISPOSITION
The order is affirmed.
We concur: RUBIN, J., FLIER, J.