Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. BB302101 & BB301593
McAdams, J.
Petitioner Singh is a citizen of Fiji subject to deportation as a result of no contest pleas to drug-related offenses he entered in 2003. In 2007, he filed a petition for writ of habeas corpus with the superior court, which granted the requested relief. The People appeal from the superior court’s order granting Singh’s petition and vacating his convictions in action numbers BB301593 and BB302101.
For the reasons explained below, we will dismiss People’s appeal.
We will not recite the historical facts underlying the challenged convictions inasmuch as they have no bearing on the issues raised by this appeal.
Action Nos. BB301593 & BB302101
In May 2003, a felony complaint was filed in the Santa Clara County Superior Court, in action number BB301593, charging Singh in three counts with two drug-related offenses and receiving stolen property. (Health & Saf. Code, §§ 11378 [possession for sale of methamphetamine], 11351 [possession for sale of cocaine]; Pen. Code, § 496, subd. (a) [receiving stolen property].) The offenses were alleged to have occurred on May 20, 2003.
All further unspecified statutory references are to the Health and Safety Code.
On July 1, 2003, another felony complaint was filed in Santa Clara County Superior Court, in action number BB302101, charging Singh in five counts with various additional drug-related offenses and an on-bail enhancement. (§§ 11351 [possession of cocaine for sale], 11352, subd. (a) [transportation, sale, distribution of cocaine], 11378 [possession of methamphetamine for sale], 11379, subd. (a) [transportation, sale, distribution of methamphetamine], 11359 [possession of marijuana for sale]; Pen. Code, § 12022.1 [on-bail enhancement].) These offenses were alleged to have occurred on June 29, 2003.
On July 29, 2003, Singh entered into a negotiated disposition that included both action numbers. In action number BB301593, defendant agreed to plead “as charged.” In action number BB302101, defendant agreed to plead “to Count 1, Count 3, and Count 5.” In exchange for his pleas on both complaints, “Mr. Singh is to receive ten months in county jail, no more, no less.”
The court accepted Singh’s no contest pleas in action BB301593 to possession of cocaine for sale (§ 11351), possession of methamphetamine for sale (§ 11378), and concealing or withholding stolen property (Pen. Code, § 496). The court also accepted Singh’s no contest pleas in action number BB302101 to possession of methamphetamine for sale (§ 11378); possession of cocaine for sale (§ 11351); and possession of marijuana for sale (§ 11359). Singh also admitted the truth of the on-bail enhancement with the understanding that “that was part of the maximum.” Pursuant to Penal Code section 17, subdivision (b), the court reduced the stolen property count to a misdemeanor.
The court advised Singh that it “initially is not going to send you to state prison but is going to place you on probation, ” and that probation could last for up to five years. The judge then asked the prosecutor to remind her that “it’s going to be four years probation in this case and not the normal three.” The matters were continued to September 25, 2003 for sentencing. Apparently, Singh was not sentenced until April 13, 2004.
Action No. BB622047
On August 4, 2006, a four-count felony complaint was filed in Santa Clara County Superior Court, in action number BB622047, charging Singh with possession of cocaine, possession of methamphetamine, misdemeanor possession of drug paraphernalia, and misdemeanor using or being under the influence of a stimulant. (§§ 11350, subd. (a), 11377, subd. (a), 11364, 11550, subd. (a).)
The minute order for August 17, 2006, in action number BB622047 reflects a proposed disposition of 16 months in state prison that includes “VOP on BB302101 and BB301593.” The minute orders for August 17, 2006, in action numbers BB301593 and BB302101, reflect that on that same day petitioner admitted the violations of probation, probation remained revoked, the matters were continued to September 7, 2006, and petitioner was remanded on $50,000 bail.
On September 7, 2006, Singh entered into a negotiated disposition whereby he agreed to plead no contest to all the charges alleged in BB622047 in exchange for a sentence of 16 months in state prison. The disposition was understood to include the violations of probation in action numbers BB301593 and BB302101. A “waived referral” memorandum from the Santa Clara County Probation Department dated September 7, 2006, also reflects the negotiated disposition of “Prison Term of 16 months Top/Bottom to include VOP’s BB302101 & BB301593.” Under the heading “Recommendation, ” the probation report states “Probation remain revoked with no further penalties.” Minute orders for September 7, 2006, entitled “Sentencing on Violation of Probation, ” reflect that on that day, in both action numbers BB301593 and BB302101, petitioner was remanded on $50,000 bail. In both cases, the next appearance was set for October 5, 2006.
The reporter’s transcript for October 5, 2006, reflects that after sentencing defendant to state prison on the felonies, and to county jail for 90 days on the misdemeanors, the court concluded the proceedings by stating: “For Case Numbers BB302101 and BB301593 probation is revoked were [sic] no further penalties.” The abstract of judgment reflects that Singh was sentenced to state prison for 16 months on the two felony offenses to which he pleaded no contest in action number BB22047. It also reflects he was sentenced to 90 days on each of the misdemeanors, to be served concurrently with count 1.
On June 12, 2007, Singh filed a verified petition for writ of habeas corpus alleging that his trial counsel in action numbers BB302101 and BB301593 had rendered ineffective assistance by advising him that “he could be deported” as a result of his pleas; that defense counsel did not know that deportation was a virtual certainty, and that he did not know that “a plea to ‘offer to sell’ or ‘transportation’ or ‘offer to transport’ would not have been aggravated felonies for immigration” purposes.
The Trial Court’s Order
Following issuance of an order to show cause, the filing of a return by the People, and the filing of a denial by petitioner, on January 4, 2008, the court vacated the convictions in action numbers BB302101 and BB301593 and set the matters for further proceedings.
The court impliedly found that petitioner was in constructive custody on action numbers BB302101 and BB301593 at the time he filed his habeas petition. However, the court’s only statements addressing petitioner’s custodial status are as follows. “Following his conviction in these cases and pursuant to the plea agreement, Petitioner was placed on probation and served 10 months in county jail. In 2006, Petitioner was found in violation of his probation when he was convicted in a new case (Case Number BB622047), and he was sentenced to 16 months in state prison. Petitioner has been released from prison and is currently on parole. Upon his release from prison, deportation proceedings were commenced against Petitioner.”
The trial court found that defense counsel who represented petitioner in action numbers BB302101 and BB301593 had rendered constitutionally defective assistance by advising defendant that his plea “might have immigration consequences” when in fact “research of the applicable law by trial counsel would have indicated that deportation of Petitioner would result from his plea to possession for sale, ” and that “counsel’s failure to seek a more favorable disposition was deficient under the circumstances.” The court accepted petitioner’s assertion that “had he known of the drastic and certain immigration consequences, avoiding them would have been a priority.” The court also found that defendant was prejudiced by counsel’s incompetence because “ ‘offering to sell’ pleas were an alternative plea bargain that trial counsel should have sought, ” and that an “offering to sell” plea would have satisfied the People’s requirement that petitioner’s plea render him probation ineligible in the event of a subsequent offense. On January 28, 2008, the court denied the People’s request for an evidentiary hearing and reconsideration of the court’s ruling. The People timely appealed.
DISCUSSION
In their briefs on appeal, the parties argued the merits of petitioner’s ineffective assistance of counsel claim and the trial court’s order sustaining it. However, after our initial review of the briefs and the record on appeal, this court asked for supplemental briefing on the question whether petitioner was in constructive custody on case numbers BB302101 and BB301593 at the time he filed his habeas petition, citing People v. Villa (2009) 45 Cal.4th 1063 and People v. Kim (2009) 45 Cal.4th 1078, 1108. Supplemental briefs were filed and, on March 30, 2010, this court heard oral argument.
On March 31, 2010, the United States Supreme Court decided Padilla v. Kentucky (2010) __U.S. ___ [130 S.Ct. 1473] (Padilla). In Padilla, defendant pleaded guilty to the transportation of a large amount of marijuana, a crime which, “like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i).” (Id. at p. 1477, fn.1.) In his habeas petition, Padilla alleged that his counsel not only failed to advise him of the immigration consequences of his plea, but also told him that he did not have to worry about his immigration status because he had been in the country for so long. In fact, Padilla’s guilty pleas to the drug charges made his deportation a virtual certainty. Padilla alleged that he relied on the erroneous advice from his counsel and would have insisted on going to trial if he had received correct advice. The Supreme Court held that “Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.... [C]onstitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” (Id. at p. 1478.) The Court remanded the case to the state court for a determination of prejudice under the second prong of Strickland v. Washington (1984) 466 U.S. 668. (Padilla, at pp. 1483-1484.)
On April 14, 2010, this court granted the parties’ joint motion to vacate submission and permit the parties to submit further briefing on the application of Padilla to this appeal, and to explore settlement. By letter filed April 19, 2010, appellate counsel advised the court that settlement was imminent. Thereafter, on April 29, 2010, the People informed the court that a settlement had been reached and that with the consent of the Santa Clara County District Attorney, the People were abandoning the appeal pursuant to California Rules of Court, rule 8.316. The People requested that this court dismiss the appeal.
Rule 8.316 provides, in relevant part: “(a) How to abandon [¶] An appellant may abandon the appeal at any time by filing an abandonment of the appeal signed by the appellant or the appellant’s attorney of record. [¶] (b) Where to file; effect of filing [¶] (1) If the record has not been filed in the reviewing court, the appellant must file the abandonment in the superior court. The filing effects a dismissal of the appeal and restores the superior court’s jurisdiction. [¶] (2) If the record has been filed in the reviewing court, the appellant must file the abandonment in that court. The reviewing court may dismiss the appeal and direct immediate issuance of the remittitur.” “[O]nce the record has been filed in the reviewing court, dismissal of the appeal is within the reviewing court’s discretion.” (People v. Nelms (2008) 165 Cal.App.4th 1465, 1470.)
In Nelms, the Court of Appeal declined to dismiss defendant’s appeal of his smuggling conviction, even though he had filed a notice of abandonment and the state had filed no opposition, because the filing of the abandonment was an attempt to shield from review the trial court’s dismissal of the smuggling conviction during the pendency of the appeal, an act in excess of its jurisdiction. The appellate court used the appeal as a vehicle for instructing trial courts on the limits of their jurisdiction under Penal Code section 1170, subdivision. (d). In Lucchesi v. City of San Jose (1980) 104 Cal.App.3d 323 (Lucchesi), the Court of Appeal likewise declined to dismiss the city’s appeal and proceeded to decide the case, despite the city’s request for voluntary dismissal and the cross-appellant’s motion for dismissal, because “[t]he issue raised by the City’s appeal is a question of first impression and of great public interest that is likely to arise and again be litigated and appealed.” (Id. at p. 326, fn. 2.)
In this case, we have considered the People’s request for dismissal in light of the issues raised in their appeal and the necessity of deciding this appeal on its merits. After such consideration, we conclude that the issues, although important to the parties, are not “of sufficient interest and importance....” to the legal community at large to warrant decision in the face of the parties’ desire to resolve the conflict by settlement. (Lucchesi, supra, 104 Cal.App.3d at p. 326, fn. 2.) Especially in light of the United States Supreme Court’s recent decision in Padilla, and our high court’s recent decisions in Kim and Villa, our opinion would simply apply settled principles to these facts. Furthermore, unlike the situation in Nelms, the trial court’s action did not constitute an act in excess of its jurisdiction, nor does this appeal provide an opportunity for instruction. Therefore, we will accede to the parties’ request and grant the People’s motion to dismiss their appeal.
DISPOSITION
The People’s appeal is dismissed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.