Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF046216-99. Joseph A. Kalashian, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J
On May 5, 2000, appellant, Asad Zuhdi Khalil, pled no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378), maintaining a place for the sale of methamphetamine (Health & Saf. Code, § 11366), and possession of narcotics paraphernalia (Health & Saf. Code, § 11364.) On August 7, 2000, the court placed Khalil on three years probation on condition that he serve 365 days local time. On December 5, 2006, the court denied Khalil’s motion to vacate the judgment. On appeal, Khalil contends the court abused its discretion when it denied his motion. We will affirm.
FACTS
On June 16, 1999, the Tulare County Sheriff’s Department conducted a search at the Family Mart convenience store in Ivanhoe pursuant to a search warrant that named Khalil as the primary suspect. Upon entering the building, deputies detained three people including Khalil. A search of the premises uncovered two large plastic packages containing a tan, powdery substance weighing one pound in a walk-in freezer, a plastic baggie containing a tan, powdery substance, a white plastic container containing a white powdery substance, and a glass smoking pipe with two aluminum foil bindles containing a tan, rock substance. The deputies also found a scanner behind the counter that was programmed to receive all local law enforcement frequencies and, on a shelf behind the counter, two small notebooks containing notations for drug sales mixed in with notations for legitimate purchases. In a display case the officers found pens and lip stick cases containing small knives. A search of Khalil uncovered a football-shaped keychain containing a controlled substance packaged in two plastic bindles and an ink pen containing a bindle of a tan powdery substance. The substances removed from the freezer and from Khalil’s person tested positive for methamphetamine. Khalil appeared to be under the influence of methamphetamine.
The business was owned by Khalil’s father and managed by Khalil. Khalil and his wife were the only persons who worked at the store.
On February 10, 2000, the district attorney filed an information charging Khalil with possession for sale of methamphetamine (count 1/Health & Saf. Code, §11378), possession of methamphetamine (count 2/Health & Saf. Code, § 11377, subd. (a)), possession of a deadly weapon (count 3/Pen. Code, § 12020, subd. (a)), possession of drug paraphernalia (count 4/Health & Saf. Code, §11366), and maintaining a place for the sale or use of methamphetamine (count 5/Health & Saf. Code, §11364).
On May 25, 2000, Khalil, who was represented by defense counsel Marc Kapetan (Kapetan) entered a negotiated plea which provided that in exchange for his no contest plea to counts 1, 4, and 5, the remaining counts would be dismissed and the court would place Khalil on probation on condition that he serve 365 days in custody, which he would be allowed to serve on the electronic monitor.
Although Khalil was a citizen of Brazil, he had resided in the United States since he was 9 months old and he had obtained lawful permanent resident status when he was four years old. His wife and three children were all United States citizens. During the change of plea proceedings, the court advised Khalil that he could be deported, citizenship could be denied, and he could be refused reentry into the United States. Khalil replied that he understood and did not ask any questions.
On August 7, 2000, the court sentenced Khalil pursuant to the plea agreement.
On July 10, 2006, while returning from Jordan, Khalil was detained at Chicago International Airport because of his convictions in this matter and was given a notice to appear for an interview at an immigration office in Minneapolis, Minnesota on August 10, 2006. Khalil retained immigration counsel who advised him that in order to avoid having his lawful permanent residence status revoked, Khalil needed to get his drug convictions vacated.
On November 8, 2006, Khalil filed a motion to vacate the judgment in this matter alleging, in pertinent part, that defense counsel Kapetan failed to investigate and/or inform him of the mandatory adverse immigration consequences of his plea to the charges in this matter.
On December 5, 2006, at a hearing on the motion, Kapetan testified that he did not specifically recall any conversation with Khalil regarding the immigration consequences of his plea or doing any research. However, it was his practice to advise his clients generally that, if they are not a United States citizen, they may be subject to deportation, denied naturalization or excluded from admission. Kapetan stated he did not recall Khalil being concerned about his immigration status when they reviewed the immigration admonishments. Kapetan did not have a practice of researching the immigration consequences of a given plea.
The court found that Khalil’s motion was a motion to vacate judgment rather than a petition for writ of coram nobis. It denied the motion concluding that the evidence of Khalil’s guilt was overwhelming, Attorney Kapetan was able to obtain a favorable resolution for him, and Kapetan had provided effective representation.
DISCUSSION
Khalil contends Attorney Kapetan provided ineffective representation by his failure to advise him that deportation was mandatory based on the offenses he pled to. He further contends he showed good cause to vacate the judgment because the failure to so advise him resulted in Khalil entering his plea under a mistake of fact or law. Thus, according to Khalil, the court abused its discretion when it denied his motion to vacate the judgment.
We will not engage in a procedural discussion of whether Khalil’s motion below was a motion to vacate judgment or a petition for writ of coram nobis. Nor do we find a need to discuss whether a claim of ineffective counsel has been raised by the appropriate procedural vehicle. Rather, we will go directly to the merits of Khalil’s claim of ineffective counsel and reject that claim.
“Whether trial counsel performed competently, that is, ‘reasonabl[y] under prevailing professional norms’ [citation], presents a mixed question of fact and law. Such questions are ‘generally subject to independent review as predominantly questions of law--especially so when constitutional rights are implicated’-- and ‘include the ultimate issue, whether assistance was ineffective, and its components, whether counsel’s performance was inadequate and whether such inadequacy prejudiced the defense.’ [Citation.]” In re Resendiz (2001) 25 Cal.4th 230, 248-249.)
“[A] defendant who pled guilty demonstrates prejudice caused by counsel’s incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial. [Citations.]” (Id. at p. 253.)
“[A defendant’s] assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’ [Citations] ‘In determining whether a defendant, with effective assistance, would have accepted [or rejected a plea] offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.’ [Citation.]” (Ibid, italics added.)
“In determining whether or not a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned. [Citations.]” (Id. at p. 254.)
Khalil has not provided any corroboration for his claim that he would not have entered into a plea agreement if he had been advised that the immigration consequences of his plea were a certainty rather than a mere possibility. Further, Khalil was advised by the court and Attorney Kapetan that his plea could result in the denial of citizenship, his deportation, and his exclusion from the United States, he did not ask any questions about the immigration consequences of his plea, and he received a very favorable plea bargain that allowed him to serve his probation custody time at home on an electronic monitor.
Moreover, the evidence of Khalil’s guilt on the possession for sale and maintaining a place for drug sales offenses was overwhelming. Over a pound of methamphetamine was found in various locations in a store managed by Khalil. Two notebooks containing notations for legitimate transactions and drug transactions and a scanner that was tuned into local law enforcement agency frequencies were found on or behind the counter. Further, Khalil was connected to this highly incriminating evidence through his position as the manager of the store and through the methamphetamine found on his person. Thus, we find it unlikely that Khalil would have been acquitted of the charged offenses if he had insisted on going to trial. Nor has Kahlil “adduced any substantial evidence suggesting the prosecutor might ultimately have agreed to a plea that would have allowed [him] to avoid adverse immigration consequences.” (In re Resendez, supra, 25 Cal.4th at pp. 253-254.) Thus, we reject Khalil’s ineffective assistance of counsel claim because he has failed to show a reasonably probability that he would not have entered his plea if he had been advised the immigration consequences were a certainty rather than a mere possibility.
DISPOSITION
The judgment is affirmed.