Opinion
F074001
08-29-2018
THE PEOPLE, Plaintiff and Appellant, v. ISAIAS LOPEZ, Defendant and Respondent.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Nicholas M. Fogg and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Appellant. Erin J. Radekin, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1493510)
OPINION
APPEAL from an order of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Nicholas M. Fogg and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Appellant. Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Respondent.
-ooOoo-
The trial court granted respondent Isaias Lopez's motion to vacate a 2010 conviction on the ground that Lopez entered a no-contest plea after his counsel failed to advise him of the immigration consequences of the plea, thus depriving him of his constitutional right to effective counsel. The People filed this appeal.
The parties agree that a motion was not the proper vehicle for seeking this type of relief, and that it could be granted, if at all, only via a petition for a writ of habeas corpus. Lopez maintains that we should deem the motion he made in the trial court a petition for a writ of habeas corpus, and should affirm the relief granted as if it were habeas relief. The People argue that, for procedural reasons, it would be error to analyze the trial court's order as if it were habeas relief. They also argue that, on the record developed in the trial court, it would have been error on the merits to grant habeas relief.
There is some tension in the case law relevant to the question of whether it would be procedurally permissible for us to treat the relief the trial court granted as if it were habeas relief. Permissible or not, however, we think it would be inappropriate in this case. The lack of full habeas procedures in the trial court has at least arguably been prejudicial by preventing full development of the facts.
We reverse on the ground that a motion to vacate was the wrong procedural vehicle for requesting the relief the trial court granted. We conclude, however, that the record developed so far is sufficient to make out a prima facie case for relief based on ineffective assistance of counsel. It will be open to Lopez to file in the trial court a petition for a writ of habeas corpus supported by the briefs and record submitted in this appeal; and if he does so, issuance of an order to show cause would be warranted.
FACTS AND PROCEDURAL HISTORY
A four-count complaint was filed against Lopez in Merced County Superior Court on December 17, 2009. According to a police report attached to the complaint, officers saw Lopez driving a Jeep Cherokee, and later saw the Jeep in the parking lot of a grocery store. Smoke was issuing from under the hood. Officers approached and saw Lopez in the driver's seat and two other men inside as well. An officer believed the three were acting nervously and asked Lopez if there was anything illegal in the car. Lopez said no, and allowed the officers to search the car.
Under the carpet, the officers found a .38-caliber revolver and a container of 10 bullets. Lopez said he bought the gun from a friend. A database search revealed it had been reported stolen.
An officer looked at Lopez's cell phone. The home screen displayed the numbers 1 and 3. Saved on the phone were photos of Lopez wearing a blue shirt and making a gesture with three fingers. One of the passengers was on probation with a gang condition and was wearing blue shorts. Lopez's driver's license was suspended.
Count 1 of the complaint alleged a violation of former Penal Code section 12025, subdivision (b)(3) (current § 25400, subd. (c)(3)), carrying a concealed weapon on one's person or in a vehicle while an active participant in a criminal street gang. This offense is a felony. By interlineation, however, this count was amended to charge a violation of section 12025, subdivision (a) (current § 25400, subd. (a)), carrying a concealed weapon on one's person or in a vehicle simply. That offense is a misdemeanor. (Former § 12025, subd. (b)(7); current § 25400, subd. (c)(7).) Count 1 also alleged a gang enhancement under section 186.22, subdivision (b)(1)(A).
Subsequent statutory references are to the Penal Code unless otherwise noted.
Count 2 alleged a violation of former section 12025, subdivision (b)(4) (current § 25400, subd. (c)(4)), carrying a concealed weapon on one's person or in a vehicle where the defendant is not lawfully in possession of the weapon, a felony. The complaint specified that Lopez was not lawfully in possession of the weapon in question because it was an illegal weapon, namely, a "9 mm assault pistol."
The weapon was not a nine-millimeter assault pistol. In their brief opposing the present motion in the trial court, the People stated that it was a ".38 caliber Smith and Wesson revolver," just as was stated in the police report. A photo of the revolver was attached to the brief. The revolver was, however, stolen, according to the police report.
Count 3 alleged a felony violation of section 186.22, subdivision (a), active participation in a criminal street gang. Court 4 alleged a violation of Vehicle Code section 14601.5, subdivision (a), driving with a suspended or revoked license, a misdemeanor.
On January 4, 2010, Lopez entered into a plea agreement with the district attorney, pursuant to which he pleaded no contest to a single count and was granted three years' probation including a six-month jail term. The plea proceedings had some anomalous features, arguably giving rise to confusion regarding the offense of which Lopez was convicted. To see the difficulty, it will be useful first to review the pertinent provisions of former section 12025, subdivisions (a) and (b). (These provisions correspond to current section 25400, subdivisions (a) and (c).)
"(a) A person is guilty of carrying a concealed firearm when he or she does any of the following:
"(1) Carries concealed within any vehicle that is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.
"(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.
"(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.
"(b) Carrying a concealed firearm in violation of this section is punishable as follows:
"(1) Where the person previously has been convicted of any felony, or of any crime made punishable by this chapter, as a felony.
"(2) Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony.
"(3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.
"(4) Where the person is not in lawful possession of the firearm, as defined in this section, or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code, or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.
"(5) Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.
"(6) By imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment if both of the following conditions are met:
"(A) Both the pistol, revolver, or other firearm capable of being concealed upon the person and the unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to that person, or the pistol, revolver, or other firearm capable of being concealed upon the person is loaded as defined in subdivision (g) of Section 12031.
"(B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106, as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.
"(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine." (Former § 12025.)
On the plea form signed by Lopez, paragraph 9 states, "I intend to enter a plea of guilty/no contest to the following charge(s); (Include all charges, prior convictions and enhancements to which a plea or admission will be made)." In the space under this statement, "PC 12025(A)" was written by hand. Beside this, under the heading "SENTENCE RANGE," was written "16, 2, 3," i.e., 16 months, two years, and three years, the default triad for a felony. Another place on the form, paragraph 24, states: "I hereby freely and voluntarily plead: NO CONTEST ... To the felony charge(s) of: "PC 12025(A)." The caption of the form includes the title "ADVISEMENT OF RIGHTS, WAIVER, AND PLEA FORM FOR FELONIES."
Yet former section 12025, subdivision (a), with no other subdivision specified, is a misdemeanor. (See former § 12025, subd. (b)(7).) The problem here is not that a violation of former section 12025, subdivision (a) cannot be a felony. But it is a felony or a wobbler only if the elements of one of the provisions in subdivision (b) are present. The plea form does not indicate that Lopez pleaded to any of the felony offenses defined by those provisions—just to the offense defined by subdivision (a), which, by itself, is a misdemeanor. On the other hand, the form implied that he pleaded to some felony under former section 12025.
The confusion persisted at the change of plea hearing. The court, counsel, and Lopez had the following colloquy:
"[The court]: In the felony case it's represented that you'll be pleading to an amended Count 1, 12025(a), carrying a concealed weapon—carrying a weapon in a motor vehicle or a public place.
"[Prosecutor]: The (b)(3) makes it a felony, that's where the confusion is.
"[The court]: Okay. It's still a felony.
"[Prosecutor]: Right.
"[The court]: And as a result you'll be placed on 3 years felony probation subject to standard terms and conditions of probation. And there will be a pleading to 186 also?
"[Prosecutor]: No.
"[The court]: Okay. Are gang conditions appropriate in this case?
"[Prosecutor]: I believe they are, Judge, based on the fact what makes it a felony is the activity in the criminal street gang.
"[The court]: Okay. Gang conditions would be imposed. Those gang conditions would be not associate with any known gang members; not wear any gang clothing; can't have a cell phone. There will be other conditions imposed in written form that you're going to have to comply with. And there will be standard fines imposed. You understand all those consequences if I accept your plea?
"[Defense counsel]: If I can have one moment.
"(Counsel conferred with the defendant.)
"[Lopez]: Yes.
"[The court]: You understand all those conditions?
"[Lopez]: Yeah.
"[The court]: Okay. Do you still want to proceed?
"[Lopez]: Yeah.
"[The court]: Okay. It's alleged on December the 8th, 2009, you violated Penal Code Section 12025(a), carrying a concealed weapon in a vehicle or on your person while you were an active participant in a criminal street gang.
"[Defense counsel]: May we pause for just a moment?
"[The court]: That's a different triad.
"[Prosecutor]: No, it's 16, 2, 3.
"[The court]: It is?
"[Prosecutor]: (Moves head up and down.)
"(Counsel conferred.)
"[Defense counsel]: I apologize for the delay.
"[The court]: There is a little misunderstanding?
"[Defense counsel]: On my part, yes. On my part I think I made a mistake as far as advising him.
"[The court]: [The prosecutor] is indicating he's pleading to (b)(3), not the (a).
"[Prosecutor]: He's pleading to the (a) and the (b)(3) is what makes it a felony. 12025(a) is straight up [a] misdemeanor unless you're a prohibited person under 12021, an active participant in a criminal street gang, you don't have lawful possession of a firearm. There is about four or five others under the (b) section.
"[Defense counsel]: Your Honor, I apologize, this is something I made a mistake on. I'm going to talk to my client briefly.
"(Counsel conferred with the defendant.)
"[The court]: Let's clarify the plea. He's pleading to violation of Penal Code 12025(b)(4).
"[Prosecutor]: Well, it's (a)—
"[The court]: Is the punishment.
"[Prosecutor]: Punishment is (b)(4)—
"[The court]: Right.
"[Prosecutor]: --that he was in unlawful possession of a firearm.
"[The court]: Okay.
"[Defense counsel]: Yes. Thank you.
"[The court]: Agreed?
"[Defense counsel]: Yes, thank you. And thank you for the Court's patience.
"[The court]: Mr. Lopez, consequences haven't changed. You're still going to have gang conditions imposed.
"(Counsel conferred with the defendant)
"[Lopez]: Yeah.
"[The court]: Okay. To the charge that you violated Penal Code section 12025(a), carrying a concealed weapon within a vehicle when you—when it was—when you were a person not in lawful possession of said firearm; how do you plead?
"[Lopez]: No contest.
"[The court]: Okay. Court accepts your plea."
The court went on to grant three years' felony probation with six months in jail. The remaining counts were dismissed. On the written order granting probation, the crime of conviction is described as "Count I amended 12025(A) PC felony." As noted above, count 1 on the complaint was amended by interlineation to read "12025(A)." The "(A)" appeared above a crossed-out "(B)(3)."
Lopez began serving his jail term on January 7, 2010. He was released around March 30, 2010, and immediately deported to Mexico by federal authorities. He had not been lawfully admitted to the United States, and it is unclear from the appellate record whether his deportation was based on his prior illegal entry, the current conviction, or both. Lopez returned to the United States about a week after his deportation—again not having been lawfully admitted—but he did not present himself to the authorities in Merced County to complete his probation. On May 12, 2010, the court revoked Lopez's probation and issued a warrant for his arrest.
On April 14, 2015—five years after he returned from Mexico—Lopez filed a motion in Merced County Superior Court, in which he asked the court to recall the warrant and reinstate his probation. The motion stated that Lopez had failed to understand, when he returned from Mexico, that he was obligated to report to probation.
The motion was heard on April 21, 2015. The court recalled the warrant and reinstated probation for two years and seven months, without prejudice to any subsequent determination that Lopez had violated probation. On July 31, 2015, the court transferred the case to Stanislaus County, where Lopez was living.
On January 4, 2016, Lopez filed a motion in Stanislaus County Superior Court to vacate his conviction pursuant to section 1016.5. Section 1016.5 requires the trial court, before accepting a plea of guilty or no contest to any offense but an infraction, to give the following advisement to the defendant on the record:
"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." (§ 1016.5, subd. (a).)
Section 1016.5 further provides that if the court fails to give the advisement and the defendant shows the conviction may lead to deportation, the court must grant the defendant's motion to vacate the conviction and allow the defendant to withdraw the plea. Unless the record shows the advisement was given, the court must presume it was not. (§ 1016.5, subd. (b).)
In addition to arguing that the court failed to give Lopez a proper advisement under section 1016.5, Lopez's motion also contended that defense counsel afforded ineffective assistance because he did not investigate the facts or any possible negotiated dispositions that would have avoided the immigration consequences of the plea, and did not give an advisement about those consequences.
The parties' briefs—here and in the trial court—never explain exactly what the immigration consequences of Lopez's plea are, apart from the assumption that deportation is one of them. We do not profess to know what they are, but for purposes of this opinion we conclude it is sufficiently clear that there are such consequences, and that the consequences depend at least in part on the conviction being for a felony instead of a misdemeanor. For example, Lopez admitted he was deported after entering his plea and then reentered without being lawfully admitted. In general, a deported alien who reenters without permission is guilty of a federal offense carrying a maximum two-year prison term. (8 U.S.C. § 1326(a).) But if the deportation was "subsequent to a conviction for commission of ... a felony," the maximum sentence is 10 years. (8 U.S.C. § 1326(b)(1).)
Finally, the motion described the confusion in the plea court about what offense, specifically, Lopez was convicted of. The motion argued that because of this confusion, Lopez did not know to what offense he was entering his plea. It stated, "The [j]udge, trial counsel, the prosecutor, were all confused. If the [professionals] are confused, then surely, the layperson is more confused."
In a declaration attached to the motion, Lopez stated that he had "a Detainer by [U.S. Immigration and Customs Enforcement], based on this conviction." But a copy of a November 2015 notice to appear in removal proceedings, also attached to the motion, stated as grounds for removal only that Lopez entered the United States unlawfully. By the time the motion was heard, Lopez had been released from immigration detention on bond.
An evidentiary hearing on the motion was held on February 23, 2016. The public defender who represented Lopez at the change of plea hearing in 2010 testified. He stated that he did no investigation of the case before the plea was entered on January 4, 2010, and had not spoken to Lopez before that day. He had no recollection of asking Lopez about his immigration status. As for advising Lopez about the immigration consequences of his plea of no contest, plea counsel testified that it was his usual practice to explain all the terms on the plea form, and one of these was about immigration consequences. The form includes the following statement, which Lopez initialed: "I understand that if I am not a citizen, my guilty or no contest plea will result in my deportation (removal), exclusion from admission to the United States, and denial of naturalization." Counsel had no specific recollection of this or any other discussion with Lopez about immigration issues, however.
Lopez testified that plea counsel spent a total of 10 or 15 minutes talking to him before he signed the plea form. Counsel did not ask him anything about his immigration status or tell him the plea could lead to his deportation. Counsel also did not explain any part of the plea form to Lopez. Lopez did not read the plea form, and counsel rushed him to initial and sign it. If Lopez had understood that his no contest plea would be grounds for deportation, he would not have entered it. He conceded, however, that the initials and signature of the plea form were his, and that he answered affirmatively when the judge asked whether he understood the form.
Lopez also testified that he did not know the difference between a felony and a misdemeanor, except he knew at the time of his change of plea that he did not want to be convicted of a felony. At first, his plea counsel told him he was pleading to a misdemeanor. Lopez heard the judge's remarks to the effect that it was a felony, after which his counsel spoke to him. Lopez told counsel he was not agreeing to plead to a felony, but counsel told him to take the deal.
The trial court denied the motion, stating that the advisement in the plea form satisfied the plea court's obligations under section 1016.5. It further ruled that, to the extent the motion sought to vacate the conviction based on ineffective assistance of counsel, it fell outside the scope of section 1016.5, and its narrow statutory motion procedure. The court suggested, however, that Lopez might want to make a nonstatutory motion alleging ineffective assistance of counsel under Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). In that case, the United States Supreme Court held that the defendant's Sixth Amendment right to effective counsel imposed on defense counsel an affirmative obligation to advise the noncitizen defendant of the immigration consequences of a guilty plea. (Padilla, supra, at p. 359.)
Lopez filed the nonstatutory motion on March 30, 2016. It did not, however, rely on Padilla, presumably because Padilla was decided after Lopez's 2010 judgment became final, and the Supreme Court has held that Padilla's rule does not apply retroactively in a collateral attack on a final judgment. (Chaidez v. United States (2013) 568 U.S. 342, 344.)
Lopez entered his plea and received probation on January 4, 2010. The time to appeal expired 60 days later. (Cal. Rules of Court, rule 8.308.) Padilla was decided on March 31, 2010.
Instead, Lopez's motion cited People v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano). Soriano, a legal permanent resident, pleaded guilty to assault with a firearm. Subsequently, after being ordered to appear in immigration court and show cause why he should not be deported, he filed a petition for a writ of error coram nobis in the trial court, alleging that he had not been adequately advised of the immigration consequences of his plea either by the judge or by defense counsel. The latter even told him he would not be deported, he said. The trial court denied the petition. Soriano appealed and at the same time filed a petition for a writ of habeas corpus in the Court of Appeal. The appellate court held that the trial judge's advisement was sufficient under section 1016.5 and that coram nobis did not lie for ineffective assistance of counsel. (Soriano, supra, at pp. 1476-1477.)
The court granted habeas relief, however, on the ineffective assistance claim. Soriano's trial counsel testified at the hearing on the petition in the trial court. She denied that she had told Soriano he would not be deported and claimed she said there was a possibility he would. She conceded, however, that she did not conduct any research on immigration consequences of the plea and was unaware that certain sentencing options for which she could have negotiated would not have triggered deportation proceedings. She said she would have attempted such negotiations had she known. (Soriano, supra, 194 Cal.App.3d at pp. 1479-1480.) The Court of Appeal concluded:
"Even assuming counsel's version of events is the correct one, her response to defendant's immigration questions was insufficient. By her own admission she merely warned defendant that his plea might have immigration consequences. Had she researched the matter she would have known that his guilty plea, absent a recommendation from the sentencing court against deportation, made him deportable. Defendant states in his declaration that he would not have entered the plea had he known he 'was exposing [himself] to deportation.'
"Defendant received only a pro forma caution from his attorney about the deportation consequences of his guilty plea. Furthermore, whatever advice his counsel did give him was not founded on adequate
investigation of federal immigration law. Because he was not adequately advised of the immigration consequences of his plea defendant has been prejudiced by the institution of deportation proceedings against him. We conclude that defendant was deprived of effective assistance of counsel in entering his guilty plea and should be allowed to withdraw that plea." (Soriano, supra, 194 Cal.App.3d at p. 1482.)
The appellate court vacated the conviction and remanded the case to the trial court with directions to allow Soriano to withdraw his plea. (Soriano, supra, 194 Cal.App.3d at p. 1482.) Lopez's motion argued that his case is similar and he should receive equivalent relief.
Lopez's motion also again argued that the documents and oral proceedings for his change of plea were hopelessly confusing, for him if not for counsel and the court, with respect to the identity of the offense of which he was being convicted. He did not realize he was pleading no contest to a felony.
The nonstatutory motion was heard on April 22, 2016. The court granted the motion. It found Lopez was denied effective assistance of counsel and it vacated the conviction.
DISCUSSION
I. A petition for a writ of habeas corpus was the correct vehicle for Lopez's claim
The parties agree that Lopez did not use a proper procedure when he attempted to use a nonstatutory motion to have his conviction vacated due to ineffective assistance of counsel. A nonstatutory motion to vacate can be treated as the legal equivalent of a writ of error coram nobis, but a writ of error coram nobis lies only to correct an error based on facts in existence at the time of the judgment but unknown to the court and parties. (People v. Kim (2009) 45 Cal.4th 1078, 1093, 1096.) It is not available to vacate a judgment because of the ineffective assistance of trial counsel. (Id. at p. 1095.)
A petition for a writ of habeas corpus is the appropriate vehicle for a collateral attack on a final judgment based on ineffective assistance of counsel. (In re Seaton (2004) 34 Cal.4th 193, 200; People v. Jackson (1973) 10 Cal.3d 265, 268.) Lopez should have sought relief in this form, and the trial court erred in granting relief based on a motion. II. The error is not harmless
The People maintain that it would be error to affirm the ruling as a proper form of habeas relief because Lopez did not file a habeas petition in the trial court and the trial court did not employ habeas procedures before granting relief. Lopez argues, to the contrary, that the lack of habeas procedures in the trial court did no harm in this instance and, consequently, there is no obstacle to our reviewing and affirming the ruling under the standard of review applicable to habeas relief.
As we will explain, we conclude that habeas procedures would have been valuable to develop the factual record in this case, and we are not confident that we have an adequate record to review. The appropriate disposition is to reverse so that Lopez can file a habeas petition in the superior court based on the record and arguments he has submitted in this appeal.
The case that best supports the People's view that the trial court could not grant the equivalent of habeas relief without using habeas procedures is People v. Romero (1994) 8 Cal.4th 728 (Romero). Romero was convicted of robbery and attempted robbery. She filed a habeas petition in the Court of Appeal, alleging that her trial counsel was ineffective because counsel failed to present expert testimony about battered woman syndrome to support her defense that she participated in the crimes under duress inflicted by a codefendant. The appellate court directed the filing of opposition and reply briefs, but never issued an order to show cause or an alternative writ. On the basis of these submissions, the court granted relief, reversing the convictions. (Romero, supra, at pp. 734-736.)
Our Supreme Court reversed the Court of Appeal. It held that the stages of habeas proceedings are mandatory: (1) the petitioner files a petition; (2) if the petition states a prima facie case for relief, the court issues an alternative writ or an order to show cause; (3) the respondent files a return; (4) the petitioner files a traverse; and (5), if necessary, the court holds an evidentiary hearing. Not to follow this procedure is error, and relief cannot be granted unless an alternative writ or order to show cause is first issued to give the parties the opportunity to file their return and traverse. (Romero, supra, 8 Cal.4th. at pp. 740, 744.) The Supreme Court held that the error was not harmless: "Because respondent was deprived of that right [to submit a return], we lack a record sufficient to evaluate the validity of petitioner's habeas corpus claims." (Id. at p. 745.)
In this case, Lopez never actually filed a habeas petition in the first place. Still, it would seem to follow from the reasoning of Romero that if, as here, the relief in question should have been by way of a habeas petition, but the court granted relief without issuing an alternative writ or an order to show cause, then the relief was granted in error.
At this point one might interject that the practice of treating filings that are not habeas petitions as if they were, and then deciding their merits without resort to habeas procedures, existed before Romero and apparently has continued undisturbed after it. In Neal v. State of California (1960) 55 Cal.2d 11, overruled on other grounds by People v. Correa (2012) 54 Cal.4th 331, 336, for example, a defendant filed a petition for a writ of mandate in the Supreme Court, seeking to overturn an assertedly unauthorized sentence. Finding that mandamus would not be the proper remedy for this kind of error, the court stated: "The proper remedy, if any, is habeas corpus. If the facts justify this remedy it is immaterial that petitioner had prayed for an inappropriate one." (Id. at p. 16.) (It is true that mandamus procedures, like habeas procedures, involve issuance of an order to show cause, but the Romero court made a point of explaining how mandate and habeas procedures are not the same. (Romero, supra, 8 Cal.4th at pp. 742-744.)
People v. Segura (2008) 44 Cal.4th 921 is similar. The defendant entered into a plea agreement for probation including a 365-day jail term. Subsequently, after federal authorities initiated deportation proceedings against him, he filed a motion in the trial court to modify the judgment by reducing the jail term to 360 days, which would have allowed him to avoid the effects of an immigration statute conditioning certain consequences on a sentence of one year of confinement. The trial court denied the motion and the Court of Appeal reversed. (Id. at pp. 926-928.) In the Supreme Court, the Attorney General argued that the order was not appealable. The Attorney General nevertheless wanted a decision on the merits to guide courts in the future, and suggested that the Supreme Court treat the appeal as a petition for a writ of habeas corpus. The Supreme Court did so, observing that "in analogous circumstances appeals have been so treated." (Id. at p. 928, fn. 4.) It then went on to analyze the merits and reverse the judgment. There was no further reference to habeas corpus or its procedures, and the disposition was an ordinary appellate disposition—"reversed"—not the issuance of an order granting writ relief, as would be expected in the case of a writ petition. (Id. at p. 936.)
Ultimately there is no need for us to decide whether this case more closely resembles Romero on the one hand, or Neal and Segura on the other. The key point in all of these cases, for our purposes here, is that we must be sure not to undertake to resolve the merits of a case without an adequate factual record.
We find the record is insufficient here to permit us to review the order as if it were habeas relief, even assuming such review would be procedurally allowable. As in Romero, there are several factual points on which we are or could be hobbled by the lack of a return and traverse and an evidentiary hearing designed for habeas purposes (as opposed to the hearing the court held for purposes of the section 1016.5 hearing). These include, but are not necessarily limited to, the question of whether a habeas petition would be timely after the passage of five years from entry of the plea, and whether Lopez demonstrated all the elements of ineffective assistance of counsel.
The trial court proceedings so far do, however, include facts sufficient to make out a prima facie case for habeas relief based on counsel's failure to provide adequate advice regarding the immigration consequences of the plea. Issuance of an order to show cause would thus be warranted if Lopez files in the superior court a petition for a writ of habeas corpus claiming ineffective assistance of counsel and supported by the briefs and record submitted in this appeal.
It is important to emphasize that we have made no determination of whether the record as it stands is sufficient ultimately to warrant habeas relief. We hold only that a prima facie case has been made and habeas procedures are necessary to dispel the possibility that, because of the truncated procedures employed in the trial court, one or both parties have been prejudiced by an inadequate opportunity to make a case.
DISPOSITION
The order vacating Lopez's conviction and permitting withdrawal of his plea is reversed.
/s/_________
SMITH, Acting P.J. WE CONCUR: /s/_________
MEEHAN, J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------