Opinion
B228978
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. MARLON ENRIQUE GONZALEZ, Defendant and Appellant.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for the Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA052385)
APPEAL from an order of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for the Plaintiff and Respondent.
Marlon Enrique Gonzalez appeals from the trial court's order denying his motion to vacate his 2004 conviction (petition for writ of error coram nobis). We affirm.
Charged with three felony counts in August 2004, Marlon Enrique Gonzalez agreed to accept a negotiated plea of guilty to making a criminal threat (Pen. Code, § 422) (count 2). In return, imposition of sentence would be suspended, and Gonzalez would be placed on formal probation. Gonzalez rejected the People's alternative offer of pleading guilty to engaging in unlawful sexual intercourse (§ 261.5, subd. (c)) (count 1) in return for a 16-month state prison sentence.
Statutory references are to the Penal Code.
In connection with the plea, the prosecutor informed Gonzalez, "If you're not a citizen of the United States, you must be advised, a conviction of this offense may have the consequences of deportation, exclusion from admission, denial of reentry, or denial of naturalization under the laws of the United States?" Gonzalez, who came to the United States when he was seven years old and was a legal permanent resident of the United States at the time of his plea, acknowledged that he understood. After Gonzalez was advised of and waived his constitutional rights, he pleaded no contest to making a criminal threat. In accordance with the agreement, the trial court suspended imposition of sentence and granted Gonzalez five years of formal probation, on condition he serve 365 days in county jail. The People's motion to dismiss the remaining two counts in the information was granted in the interests of justice.
In November 2008, Gonzalez successfully petitioned the trial court to reduce his felony conviction to a misdemeanor (§ 17, subd. (b)(5)), which was then dismissed (§ 1203.4).
There is nothing in the record to show these rulings were made, but the People did not dispute them in their written response to the motion or at the hearing.
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In February 2010, Gonzalez appeared in court regarding an unpaid traffic ticket from 2005. He decided to serve two days in county jail, rather than pay the fine, and has been in federal immigration custody, awaiting deportation.
On July 22, 2010, Gonzalez filed his motion to vacate his 2004 conviction, in which he asserted he was in the United States legally, was currently employed, his entire family was living in this country legally, and he had children here. Gonzalez asserted his plea was based on factual error; in that he would not have entered his plea had he known of (1) the immigration consequences of serving a 365-day sentence; (2) the proof that the complaining witness had given perjured testimony and false police reports; (3) the "lead detective's credibility was vulnerable to attack [;]" and (4) the trial court relied on false testimony to find a factual basis for the plea. The last three grounds Gonzalez attributed to ineffective assistance of trial counsel.
The trial court reviewed Gonzalez's motion to vacate and the People's response. In a minute order dated September 10, 2010, court denied the motion, relying on People v. Kim (2009) 45 Cal.4th 1078. Gonzalez filed a timely notice of appeal.
We appointed counsel to represent Gonzalez on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. On May 31, 2011, we advised Gonzalez that he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date.
We have examined the entire record and are satisfied Gonzalez's attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
The order is affirmed.
WOODS , J.
We concur:
PERLUSS, P. J.
ZELON, J.