Opinion
F060262 Super. Ct. No. 1401824
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. MARIN CONTRERAS MAGANA, Defendant and Appellant.
Jeffrey D. Schwartz for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Gomes, Acting P.J., Franson, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.
Jeffrey D. Schwartz for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, appellant, Marin Contreras Magana, pled no contest to manufacture of a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)). The court imposed a prison term of three years.
On appeal, appellant argues that (1) the court, after accepting appellant's plea, erred by failing to "hold off on the plea" for two weeks in order to allow appellant the opportunity to consult with an immigration attorney, and (2) his counsel failed to advise him to consult with an immigration attorney, thereby violating his constitutional right to the effective assistance of counsel. We will affirm.
PROCEDURAL BACKGROUND
At the outset of the hearing on March 8, 2010, defense counsel informed the court that a plea agreement had been reached, pursuant to which appellant would plead no contest to the instant offense. Thereafter, the court advised appellant, inter alia, of the "consequences of this plea," including the following: "If you're not a United States citizen, your plea or conviction could result in deportation, exclusion from admission to the United States, or denial of naturalization." Appellant affirmed that he understood this. Moments later, appellant entered his plea of no contest, and immediately thereafter, the court found, inter alia, that appellant "understands the ... consequences of the plea," and the court accepted the plea.
At that point, defense counsel told the court that appellant "waived [time] for pronouncement of judgment[,]" and the court imposed sentence. Immediately thereafter, just before the close of the hearing, the following colloquy occurred:
"MR. SPOKES [defense counsel]: Your honor, we are asking for a two-week delay of delivery. [Appellant] wishes to consult with an immigration attorney.
"THE COURT: One would assume that he must be aware that it's extremely highly likely he'll be deported with this kind of conviction.
"MR. SPOKES: Your Honor, he's been fully debriefed. We had a seminar last Friday afternoon.
"THE COURT: Okay. Remaining counts dismissed.... [¶] Delivery is stayed to the 22nd of March, 2010."
DISCUSSION
We refer to Penal Code section 1016.5 as section 1016.5, and we refer to subdivisions (a) and (b) of section 1016.5 as, respectively, sections 1016.5(a) and 1016.5(b).
Section 1016.5(a) provides that "[p]rior to acceptance of a plea of guilty or nolo contendere" for offenses more serious than infractions, the court must advise the defendant of the possible immigration consequences of such a plea for a non-citizen.Section 1016.5(b) provides, in relevant part: "Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section." Appellant argues his request, made "within minutes, if not seconds, after the court accepted the plea," that his delivery to the California Department of Corrections and Rehabilitation (CDCR) be delayed for two weeks so that he could consult with an immigration attorney was a "request" for "additional time to consider the appropriateness of the plea," within the meaning of section 1016.5(b), and that this request "trigger[ed] the mandatory provisions of [section 1016.5(b)]." Therefore, appellant argues, the court erred when it failed to "give back" and/or "hold off on" appellant's plea for a period of two weeks to allow appellant to consult an immigration attorney. We disagree.
Specifically, section 1016.5(a) mandates that before accepting a plea of guilty or no contest: "... the court shall administer the following advisement on the record to the defendant: [¶] 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."
First, section 1016.5(b) refers to a request for "additional time" for a specific purpose, viz., to consider the "appropriateness of the plea" in light of the court's advisement as to the immigration consequences of a plea. Neither appellant nor defense counsel stated that appellant's reason for wishing to consult with an immigration attorney was to undo the plea he had entered moments before. Indeed, counsel gave no reason for appellant's request. The record admits of the possibility that appellant had considered the "appropriateness" of his plea, and had chosen to enter his plea, knowing of the likely immigration consequences, but wanted to consult with an immigration attorney to determine if anything could be done to ameliorate those consequences. Thus, on this record, appellant has not established that his request for delay in delivery to CDCR qualified as a request for "additional time to consider the appropriateness of the plea," within the meaning of section 1016.5(b), that the court was required to grant. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham) [appellant has burden on appeal to affirmatively demonstrate error].)
Further, under appellant's interpretation of the statute, 1016.5 mandates the granting of a section 1016.5(b) request for additional time to consider the "appropriateness" of a plea even where that request is made after the plea is entered. This interpretation is, in our view, incorrect.
We recognize the statute does not explicitly state when a section 1016.5 request for additional time must be made vìs-à-vis entry of the plea. However, the obvious time to consider the "appropriateness" of a plea—presumably for the purpose of deciding whether to enter a plea—is before entering the plea. Moreover, appellant's claim that section 1016.5(b) required the court to "give back" or "hold off on" the no contest plea appellant had entered and the court accepted (1) transforms his request for a two-week delay in delivery to prison for the purpose of consulting an immigration attorney into a postjudgment motion to withdraw his plea, and (2) amounts, in essence, to a claim that the court was required to grant that motion for no reason other than that appellant made the request. There is no merit to such a claim.
A postjudgment motion to withdraw a plea "amounts to a motion to vacate the judgment with leave to change the plea. In other words, it is the equivalent of an application for a writ of error coram nobis.'" (People v. Grgurevich (1957) 153 Cal.App.2d 806, 810; accord, People v. Adamson (1949) 34 Cal.2d 320, 325 ["petition for coram nobis ... is, in legal effect, a motion to vacate a judgment"].) A coram nobis petition "'is generally used to bring factual errors or omissions to the court's attention.'" (People v. Dubon (2001) 90 Cal.App.4th 944, 950.) "'"The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not []presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]" [Citations.]' [Citations.]" (Id. at pp. 950-951.) Moreover, although the writ of error coram nobis "generally lies to give relief where the petitioner, through fraud, coercion, or excusable mistake, was deprived of a fair trial on the merits" (People v. Carty (2003) 110 Cal.App.4th 1518, 1523, italics added), it "lies to correct only errors of fact as distinguished from errors of law" (People v. Sharp (1958) 157 Cal.App.2d 205, 207).
At the time appellant made the request that, according to appellant, required the court to "give back" appellant's plea, the foregoing principles were in effect. And, these principles were well established in 1977 when section 1016.5 was enacted. (Stats. 1977, c. 1088, § 1, p. 3495.) "We do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied." (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199.) Accordingly, we do not presume that in enacting section 1016.5, the Legislature intended to establish that after a noncitizen defendant enters a plea of guilty or no contest, well-established principles governing postjudgment challenges to a plea do not apply and that a defendant can undo his or her plea simply by requesting additional time to consider its "appropriateness" (§ 1016.5(b)). Section 1016.5 did not require the court to "give back," i.e., allow appellant to withdraw, appellant's plea.
Claim of Ineffective Assistance of Counsel
"To prevail on a claim of ineffective assistance, a defendant must show both that counsel's performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced. [Citation.] Such prejudice exists only if the record shows that but for counsel's defective performance there is a reasonable probability the result of the proceeding would have been different." (People v. Cash (2002) 28 Cal.4th 703, 734.)
Appellant argues he received constitutionally deficient representation because, he asserts, his trial counsel failed to advise him to seek advice from an immigration attorney before he entered his plea. There is no merit to this contention.
First, nothing in the record affirmatively shows that counsel failed to advise appellant to consult an immigration attorney. That is one possible inference, but such an inference is not sufficient to demonstrate error. As indicated above, it is appellant's burden on appeal to affirmatively demonstrate error. (Denham, supra, 2 Cal.3d at p. 564.) He has failed to do so.
Moreover, as we explain below, under Padilla v. Kentucky (2010) 559 U.S. _ (Padilla), even if appellant had established that counsel failed to advise him to consult an immigration attorney, his argument would fail because such failure does not constitute ineffective assistance counsel.
In Padilla, the defendant was a lawful permanent resident of the United States for more than 40 years. He pled guilty to drug distribution charges in Kentucky. He sought to have the plea set aside based on ineffective assistance of counsel. He claimed his counsel not only failed to advise him of the immigration consequences of his plea, but told him not to worry about deportation because he had lived in this country so long. The Kentucky Supreme Court denied Padilla's petition on the ground that the right to effective assistance of counsel does not protect defendants from erroneous deportation advice.
The United States Supreme Court reversed. The court noted that before deciding whether to plead guilty, a defendant is entitled to effective assistance of competent counsel. (Padilla, supra, 130 S.Ct. at pp. 1480-1481.) The court also noted that the weight of prevailing professional norms supports the view that counsel must advise his or her client on the risk of deportation. (Id. at p. 1476.)
The five-justice majority went on to define defense counsel's duty. "When the law is not succinct and straightforward a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, ... the duty to give correct advice is equally clear." (Padilla, supra, 130 S.Ct. at p. 1483, fn. omitted.)
Appellant bases his argument on Justice Alito's concurring opinion, which states: "[A]n alien defendant's Sixth Amendment right to counsel is satisfied if defense counsel advises the client that," inter alia, "the client should consult an immigration specialist if the client wants advice on that subject." (Padilla, supra, 130 S.Ct. at p. 1494 (conc. opn. of Alito, J.).) However, as demonstrated above, the Padilla majority did not impose such a requirement. We are bound to follow the majority opinion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, the record does not establish defense counsel failed to advise appellant that his plea could have adverse immigration consequences or that counsel incorrectly advised appellant as to those consequences. Therefore, under Padilla, appellant has not established that his right to the effective assistance of counsel was violated. (Padilla, supra, 130 S.Ct. at p. 1483.)
DISPOSITION
The judgment is affirmed.