P. v. Alonso
Filed 6/4/13 P. v. Alonso CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. NAZARIO ALONSO, Defendant and Appellant. | D062735 (Super. Ct. No. SCN167248) |
APPEAL from
an order of the Superior Court
of
County, Timothy M. Casserly, Judge. Appeal dismissed.
Thomas A.
Lappin for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Barry Carlton and Heather M.
Clark, Deputy Attorneys General, for Plaintiff and Respondent.
Nazario Alonso appeals from the denial of his
withdraw his 2004 guilty plea to a violation of Health and Safety Code section
11358. His motion, and this appeal
lumped together a request for nonstatutory relief, habeas corpus and a request
for relief by writ of coram nobis. We will dismiss the appeal because Alonso has
failed to obtain a certificate of probable cause in the trial court as required
by Penal Code
title="">[1]
section 1237.5. We also find we do not
have jurisdiction to review the denial of a writ of habeas corpus in the trial
court since such denial may only be reviewed by filing an original petition in
this court, and not by way of appeal.
Even if we were inclined to treat the appeal as a petition for writ of
habeas corpus, which we are not inclined to do, we would still dismiss the
petition because Alonso is not "in custody" in this case. Finally, there is no basis in the record for
FACTS
AND PROCEDURAL BACKGROUND
This is a
sparse record. The only documents in the
record are the court's minute orders, the motion
to withdraw the plea and the opposition to the motion. There are no materials in the record from the
2004 case and guilty plea.
Alonso
entered his guilty plea on March 15,
2004. He was thereafter
granted probation for three years.
Probation expired at the end of the term without any revocations.
On April 23, 2012, Alonso was arrested
for domestic violence. Alonso was ultimately placed in the custody
of immigration authorities. In May 2012,
Alonso filed his motion to withdraw the 2004 guilty plea in order to avoid
potential deportation. He contended that
although he was advised of the potential for immigration consequences pursuant
to section 1016.5,
title="">[2]
his counsel was ineffective by not further advising him of the risk of
deportation. The trial court denied
Alonso's motion on August 30, 2012.
Alonso
filed a timely notice of appeal, but
did not obtain a certificate of probable cause.
DISCUSSION
I
As indicated
on his notice of appeal, Alonso is appealing from the denial of his motion to
withdraw his guilty plea. The Attorney
General first responds to the appeal contending that section 1237.5 requires a
certificate of probable cause in order for this court to consider the merits of
the appeal. Alonso did not discuss
section 1237.5 in his opening brief and has not filed a reply brief. We agree with the respondent that the failure
to obtain a certificate of probable cause
is fatal to this appeal.
As a
general principal, a defendant may not appeal and challenge a guilty plea
without complying with section 1237.5. (
Cal.4th 668, 679; People v.
Specifically
dealing with denials of motions to withdraw guilty pleas pursuant to section
1016.5, the courts have determined that the restrictions of section 1237.5
apply to such appeals. (
Cal.App.4th 489, 494; People v.
Rodriguez (2012) 208 Cal.App.4th 998, 999-1000.)
There is
nothing in this record, nor in any briefing from Alonso, that would suggest a
basis for any exception to the requirement for a certificate of probable
cause. Thus the appeal from the denial
of the motion to withdraw the guilty plea must be dismissed.
II
Alonso has
appealed from the denial of the "habeas" portion of his trial court
motion. The denial of a petition for
writ of habeas corpus is not an appealable order. (In re
Clark (1993) 5 Cal.4th 750, 767, fn. 7; People v. Gallardo (2000) 77 Cal.App.4th 971, 986.) The proper vehicle for a defendant to seek
review in the appellate court is by an original petition filed in such
court. (In re Resendiz (2001) 25 Cal.4th 230, 237, fn. 2.) Thus Alonso's appeal of the denial of his
habeas corpus motion is not before us.
Even if we
were inclined to treat this appeal as a petition for writ of habeas corpus, we
would still lack jurisdiction to reach Alonso's claim. He is not in custody in this case, nor even
in custody in the state. His probation
in this case has expired, and he is under no restraint as a result of his
guilty plea.
Custody is
an essential element of a request for habeas relief. (People
v. Villa (2009) 45 Cal.4th 1063, 1069-1070; People v. Kim (2009) 45 Cal.4th 1078, 1108 (
There is nothing in this record to support the essential requirement of
custody. Thus the purported appeal from
the denial of habeas like relief is also dismissed.
III
Although he
did not file a writ petition, Alonso sought relief in the trial court by way of
writ of error coram nobis. The trial court denied Alonso relief and he
now asks this court to grant such relief.
Like the trial court we find nothing in this record to justify
The purpose
of the writ of error coram nobis
" 'is to secure relief, where no other remedy exists, from a judgment
rendered while there existed some fact which would have prevented its rendition
if the trial court had known it and which, through no negligence or fault of
the defendant, was not known to the court.' " (Kim,
supra, 45 Cal.4th at p. 1091.)
As a
general proposition, coram nobis does
not apply to claims of ineffective assistance of counsel. (Kim,
supra, 45 Cal.4th at pp. 1095, 1104.)
Coram nobis will not vacate a
guilty plea solely on the grounds the plea was induced by misstatements of
counsel. (People v. Gallardo, supra, 77 Cal.App.4th 971, 982-983.)
In this
case, Alonso was informed during the change of plea process that the conviction
could lead to adverse immigration consequences, including deportation and
prevention of return to this country.
Although the record is sparse, we know from the prosecution's response
to the motion that following his plea, and before sentencing, Alonso expressed
his concerns to the probation officer about the possibility of being
deported. Plainly, Alonso was well aware
in 2004 that deportation was a distinct possibility as a result of his guilty
plea, although it was not until 2012, when Alonso was arrested for domestic
violence, that he came to the attention of immigration authorities.
Given that
Alonso was fully aware of the risk of deportation at the time of his 2004
guilty plea, there is no fact unknown to him, or the court arising from that
plea, which could possibly support the issuance of a coram nobis writ. (
1093.) The trial court properly denied
Alonso relief on this ground.
DISPOSITION
The appeal
is dismissed.
HUFFMAN, J.
WE CONCUR:
McCONNELL,
P. J.
AARON,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title="">[2] The opposition to the motion included the quote from the
change of plea form: "I understand
that if I am not a citizen, a plea of guilty or no contest could result in my
deportation or exclusion from admission to this [country] or denial of
naturalization or amnesty."
