P. v. Banderas
Filed 7/10/12 P. v. Banderas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JUAN JAIME BANDERAS,
Defendant
and Appellant.
E051589
(Super.Ct.No.
INF057815)
OPINION
APPEAL
from the Superior Court
of
County. Thomas N.
Douglass, Judge. (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Dismissed.
Michael
S. Cabrera for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Juan Jaime Banderas appeals from the trial court’s order denying
his petition for writ of habeas corpus. Defendant argues he should be allowed to
withdraw his guilty plea because his trial counsel was ineffective for failing
to advise him of the clear immigration consequences of his plea. The People argue this appeal should be
dismissed because the trial court’s order denying defendant’s writ petition is
not an appealable order. As discussed
below, we agree with the People that defendant’s remedy is to file a petition
for writ of habeas corpus in this court, which he has done. Consequently, we dismiss this appeal.
and Procedure
Defendant
became a lawful permanent resident of the
States in 2004, when he was 19 years old, after having been brought to the United
States by his parents when he was 15 years
old. Defendant’s parents are lawful
permanent residents, and his son is a United
States citizen.
On
June 27, 2007, defendant
pled guilty to possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) The trial court suspended execution of
sentence and placed defendant on probation for three years on condition he
serve 180 days in jail on weekends.
As
a result of this 2007 conviction, defendant was arrested on May 7, 2010, by agents of the United
States Immigration and Customs Enforcement (ICE) and placed in immigration
removal proceedings. On June 14, 2010, defendant filed a
combined motion to dismiss and vacate judgment under Penal Code section 1385
and petition for writ of habeas corpus seeking to allow him to withdraw his
2007 guilty plea. The gist of this
filing was that defendant’s 2007 defense
counsel did not specifically advise him that he was pleading guilty to an
“aggravated felony,†under federal immigration law, which would inevitably
subject him to mandatory removal proceedings.
Defendant pointed to Padilla v.
Kentucky (2010) 509 U.S. [130
S.Ct. 1473, 176 L.Ed.2d 284], in which the United States Supreme Court had
recently decided that, where the law on immigration consequence is clear,
defense counsel acts below the acceptable standard by misadvising a criminal
defendant that a guilty plea to an aggravated felony would not cause any
adverse immigration consequences.
The
trial court held a hearing on the filing on July 14, 2010. The
trial court denied the writ petition on the ground that Padilla applies only to affirmative
misrepresentations that a plea will have no adverse immigration consequences,
rather than the passive failure to advise of immigration consequences that
defendant alleged. The trial court also
pointed to the Supreme Court’s seeming approval of Penal Code section 1016.5
assistance of counsel claims when a criminal defendant asserts he or she was
not advised of the immigration consequences of a guilty plea. (Padilla
v. Kentucky, supra, 130 S.Ct. at
p. 1473, fn. 15.)
Defendant
timely filed a notice of appeal
challenging the trial court’s denial of his petition for writ of habeas
corpus. However, the denial of a
petition for habeas corpus is not an appealable order. (See In
re Hochberg (1970) 2 Cal.3d 870, 876.)
As the People point out, the proper vehicle for defendant to challenge
the denial of his petition for writ of habeas corpus is to file a habeas corpus
petition in this court. (See
fn. 2) Defendant has done so. This appeal is improper and so is dismissed.
The
appeal is dismissed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
or nolo contendere to any offense punishable as a crime under state law . . .
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.†(Pen. Code, § 1016.5, subd. (a).)
