Opinion
G053015
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ARNALDO RAMON COBIELLAS, Defendant and Appellant.
Robert F. Jacobs & Associates and Robert F. Jacobs for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles L. Ragland, Scott C. Taylor and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. C-63480) OPINION Appeal from an order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Robert F. Jacobs & Associates and Robert F. Jacobs for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles L. Ragland, Scott C. Taylor and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
This is an appeal from defendant Arnaldo Ramon Cobiellas's motion to vacate his conviction under Penal Code section 1016.5 due to purportedly inadequate warnings about the immigration consequences of his plea. The trial court denied the motion, concluding it lacked jurisdiction to hear it because the case had previously been transferred to Los Angeles County. It also found defendant failed to establish grounds for relief. We agree that Orange County lacks jurisdiction to hear this case and therefore we affirm the order.
Subsequent statutory references are to the Penal Code unless otherwise indicated. --------
I
FACTS
Defendant is now 73 years old. He entered the United States legally in 1979 from Cuba on a humanitarian parole entry with indefinite status. He has been married to his wife, a citizen, since 1975. He has two grown children who live in the United States, one a citizen and the other a permanent resident.
In 1986, defendant pleaded guilty to sale or transportation of a controlled substance, a felony. (Health & Saf. Code, § 11352.) He was represented by retained counsel. His maximum exposure was five years in state prison. Pursuant to the plea agreement, which defendant states he entered into on the advice of counsel, he was ordered to serve six months in jail and was placed on probation for three years. Defendant claims his attorney did not tell him the conviction would have immigration consequences. He states that if he had been so advised, he would have asked for time to consult with an immigration attorney, sought a plea to a different offense, or gone to trial.
Defendant's signed plea form includes his initials after the standard immigration advisement. The form also includes a statement signed under penalty of perjury averring that he understood and personally initialed each statement on the form, and he had discussed each item with his attorney. A certified court interpreter and counsel both signed the form.
There is no transcript from the hearing at which defendant's plea was taken in the record - it has, apparently, been destroyed. The minute order reflects that defendant was advised of the consequences of violating probation, but not the immigration consequences of his plea.
In 1988, defendant was on probation. Defendant was permanently living in Los Angeles County. Pursuant to section 1203.9, the case was transferred to Los Angeles Superior Court. In 1996, that court granted defendant's motion to dismiss (expunge) his conviction pursuant to section 1203.4. According to defendant, he has never been placed on an immigration hold, nor is he now in immigration proceedings.
Defendant initially filed this motion to vacate his conviction in Los Angeles. According to counsel, the Los Angeles court stated the motion must be filed in the court that took the plea. Apparently, no action was taken to transfer the case back to Orange County.
Defendant then filed the same motion in Orange County. The court ultimately ruled that it did not have jurisdiction over the motion, because the case had been transferred to Los Angeles for all purposes in 1988. The court also concluded that although defendant had not received an immigration advisement from the court, he was not entitled to relief because he had not established prejudice.
Defendant now appeals.
II
DISCUSSION
Section 1203.9, subdivision (a)(1), states in relevant part: "[W]henever a person is released on probation or mandatory supervision, the court, upon noticed motion, shall transfer the case to the superior court in any other county in which the person resides permanently, meaning with the stated intention to remain for the duration of probation or mandatory supervision, unless the transferring court determines that the transfer would be inappropriate and states its reasons on the record." Subdivision (b) provides that "the receiving county shall accept the entire jurisdiction over the case effective the date that the transferring court orders the transfer."
Section 1203.9 sets forth a "detailed process for the transfer of jurisdiction" and "jurisdiction rests exclusively in the county in which probation is granted until it is transferred." (People v. Klockman (1997) 59 Cal.App.4th 621, 627.) "[O]nce a case is transferred the original court no longer has jurisdiction." (People v. Adelmann (2016) 2 Cal.App.5th 1188, 1193, review granted Nov. 9, 2016, S237602.)
Defendant does not argue that the statute means anything other than what it says. Instead, he argues that when the Los Angeles court directed counsel to file this motion in Orange County, the court thereby "transferred" the action back to Orange County. There is no evidence of this in the record, however - no transcript of the Los Angeles proceedings, no written order similar to the one transferring the case to Los Angeles in 1988, and no other indication of a proper transfer of the case back to Orange County. Nor does defendant indicate what the legal basis for such a transfer might be. A transfer under section 1203.9 would be improper as defendant is no longer on probation or mandatory supervision. Defendant indicates no other statute under which transfer was appropriate. Simply put, just because it would be convenient for defendant if such a transfer had happened, that does not mean it actually did.
Defendant also argues there should be a "uniform rule" adopted to vest jurisdiction to vacate a plea within the plea-taking court. Counsel states he has been subject to such "jurisdiction battles" in the past between several counties. We agree a uniform rule one way or the other would be helpful, but the place to address that request is the Legislature, not here. We have no authority to adopt such a rule out of convenience. Further, we disagree that a one-size-fits-all approach is necessarily the best. Perhaps there are some cases where the court that took the plea is in the best position to rule on its withdrawal, but that was certainly not the case here. An Orange County court has no magical powers to read a plea form or a minute order that a Los Angeles court lacks.
Under the current state of the law, the Los Angeles court has jurisdiction over this case, and has had jurisdiction since it was transferred in 1988. It had jurisdiction to hear and grant defendant's 1996 motion to dismiss under section 1203.4, and it has jurisdiction to hear the instant motion.
III
DISPOSITION
The order is affirmed.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.