Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB052604. Cara D. Hutson, Judge. Affirmed.
Patrick M. Ford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
After pleading guilty to possession of cocaine for sale (Health & Saf. Code, § 1351.5), defendant Victor Lewis Alvarez moved to vacate his conviction and set aside his plea on the ground his attorney did not apprise him of adverse immigration consequences of his plea.
Unless otherwise noted, all statutory references are to the Health & Safety Code.
Defendant Victor Lewis Alvarez appeals the trial court’s order denying his motion entitled, “motion to vacate judgment [petition for writ of error coram nobis]” (motion to vacate). Defendant contends his trial attorney provided ineffective assistance of counsel (IAC) by failing to advise him that pleading guilty to possession of cocaine for sale would result in mandatory deportation and exclusion from the United States.
We conclude there was no error in denying defendant’s motion to vacate and affirm the judgment.
1. Factual and Procedural Background
Defendant is a citizen of Belize and is not a United States citizen. Defendant’s wife and child are United States citizens. In 2002, defendant became a legal permanent resident of the United States following his marriage to his wife.
In May 2006, the police stopped defendant while he was walking in the middle of the street, impeding traffic. The police found two plastic baggies of rock cocaine in defendant’s mouth. In January 2006, defendant pled guilty to possession of cocaine for sale (§ 11351.5). The trial court sentenced defendant to three years of probation.
Defendant violated his probation in June 2006, and again in November 2006, after he was arrested for marijuana possession. The court terminated defendant’s probation and sentenced him to three years in state prison.
While defendant was in state prison, the Department of Homeland Security, Immigration and Customs Enforcement (ICE) placed an immigration hold on defendant. After defendant served his sentence and was released from prison, defendant was transferred to the ICE facility in El Centro, California, where he was held pending deportation proceedings.
On March 17, 2008, defendant’s immigration attorney, Robin Carr, filed a motion in the superior court to vacate defendant’s judgment. Defendant asserted in his written motion that the trial court violated Penal Code section 1016.5 by failing to advise him of the immigration consequences of pleading guilty to the charged offense.
During the hearing on the motion in April 2008, Carr acknowledged that defendant’s written motion to vacate was based on the trial court’s failure to advise defendant of immigration consequences, not on IAC. Carr conceded that the trial court had sufficiently advised defendant of immigration consequences by telling him that if he pled guilty to the charged offense, he would be deported.
Carr informed the court that, even though IAC was not asserted in defendant’s written motion to vacate, defendant was alternatively arguing IAC based on defendant’s attorney failing to apprise defendant of adverse immigration consequences.
In response, the trial court stated that IAC could not be raised by petition for writ of error coram nobis. The trial court denied defendant’s motion to vacate on the grounds defendant signed the change of plea form acknowledging he understood he might be deported if he pled guilty to the charged offense, and the trial court complied with Penal Code section 1016.5 by advising defendant that he would be deported if he pled guilty to the charged offense.
2. Motion to Vacate Judgment/Petition for Writ of Error Coram Nobis
In October 2008, defendant filed a petition for writ of habeas corpus on this issue (case No. E046972), which we ordered considered with this appeal. We will resolve that petition by separate order.
Defendant contends the trial court erred in denying his motion to vacate based on IAC. Defendant asserts he would not have pled guilty to the charged offense had he known he would be deported.
At the hearing, during which defendant pled guilty to possession of cocaine for sale, the trial court advised defendant that, “If you’re not a citizen you are advised that a conviction of any felony will result in deportation, denial of citizenship, or exclusion from the United States.”
Also, before defendant pled guilty, he initialed box No. 14 in the change of plea form which stated: “I understand that if I am not a citizen of the United States, deportation, exclusion from admission into the United States, or denial of naturalization may result from a conviction of the offense(s) to which I plead guilty.” Defendant complains that this language fails to inform defendant that deportation is not only a possibility, but a certainty, and his attorney failed to tell him deportation was a certainty if he pled guilty to the charged offense.
Our high court in People v. Totari (2002) 28 Cal.4th 876, explained that “Although section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the ‘substantial rights’ of the defendant, the right to appeal is limited by the qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment.” (Id. at p. 882.)
In the instant case, defendant’s IAC appeal is improper because IAC could have been raised and reviewed on appeal from the judgment of conviction, and there is no statutory basis permitting a postjudgment appeal. While Penal Code section 1016.5 provides postjudgment relief, defendant’s appeal is not premised on a violation of section 1016.5, since it is undisputed there was no such violation. The trial court properly advised defendant that his guilty plea would result in mandatory deportation and exclusion. On appeal, defendant is solely arguing IAC, which must be raised by timely appealing the judgment of conviction or by a petition for writ of habeas corpus. (People v. Chien (2008) 159 Cal.App.4th 1283, 1290 (Chien); People v. Gallardo (2000) 77 Cal.App.4th 971, 987.)
As in the instant case, the defendant in Chien argued on appeal that the statutory remedy provided in Penal Code section 1016.5 extended to the failure of defense counsel to advise the defendant of the potential immigration consequences of pleading guilty to the offense of drug possession for sale. (Chien, supra, 159 Cal.App.4that p. 1288.) The Chien court rejected this argument, explaining that Penal Code section 1016.5 contained narrow requirements and addressed only the trial court’s duty to advise, not counsel’s. (Chien, supra, at p. 1288.) The court in Chien held that an IAC claim could not be brought in a Penal Code section 1016.5 motion. (Chien, supra, at p. 1285.) The Chien court explained: “We find no basis to conclude that the statute grants the trial court broad authority to vacate a conviction based on any error or deficiency of counsel related to advisement of adverse immigration consequences. We therefore agree that the court lacked jurisdiction to address a claim of ineffective assistance of counsel in the context of a section 1016.5 motion. This ruling is likely to leave defendant without a remedy; a claim of ineffective assistance of counsel generally is not a proper basis for a petition for writ of error coram nobis, the time for appeal of the judgment has long since passed, and defendant is no longer in custody for purposes of a writ of habeas corpus.” (Id. at p. 1290.)
Defendant argues Chien is distinguishable because the Chien defendant did not argue the trial court violated Penal Code section 1016.5 by failing to advise the defendant of immigration consequences. The defendant in Chien only raised the IAC challenge. This is a distinction without a difference here. Defendant’s section 1016.5 challenge in the trial court was meritless, as it would have been had it been raised in Chien. Bootstrapping an IAC claim onto a meritless Penal Code section 1016.5 claim will not save an untimely IAC claim, which must be raised by appealing the judgment or by writ of habeas corpus.
3. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P. J., King, J.