P. v. Bedier
Filed 5/2/13 P.
v. Bedier CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MOHAMAD BEDIER
et al.,
Defendants and Appellants.
B241606
(Los Angeles County
Super. Ct. No.
BA292964)
APPEALS
from orders of the Superior Court of
County, Monica Bachner, Judge.
Affirmed.
Goldberg
& Associates and Julie A. Goldberg for Defendants and Appellants.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Haifa and Mohamad
Bedier (defendants) appeal from May 18, 2012 orders denying
their nonstatutory motions to vacate their guilty pleas. Defendants challenge convictions entered in
2006 in order to eliminate them as a basis for deportation. We affirm the trial court’s orders.
II. PROCEEDINGS IN THE TRIAL COURT
Defendants
are Lebanese citizens who were legal residents of the United States. Defendants each pleaded
guilty on August
14, 2006, to one count of welfare
fraud. (Former Welf. & Inst. Code, §
10980, subd. (c)(2), Stats. 2002, ch. 1022, § 23.5.) Defendants were represented by counsel and
assisted by Arabic language interpreters when they entered their pleas. The trial court advised them, “If you are not
a citizen of the United
States, a plea in
this case will result in deportation, denial of naturalization, denial of
re-entry into this country as well as exclusion from admission.†The trial court placed defendants on three
years’ formal probation.
Four
years later, on March 31, 2010, the United
States Supreme Court issued its opinion in Padilla
v. Kentucky (2010) 559 U.S. 356,
__ [130 S.Ct. 1473, 1486-1487].
a defendant is entitled to the effective assistance of competent counsel,
including advice of the possible immigration consequences of a plea. (Chaidez
v. United States (2013) 568 U.S. __, __ [133 S.Ct. 1103, 1105];
pp. 1486-1487].)
Nearly
six years after pleading guilty, and two years after Padilla was decided, on March 26, 2012,
defendants filed motions to vacate their pleas.
Defendants had completed their California
probation. In addition, they were in
removal proceedings before federal immigration authorities. Defendants contended their trial counsel was
ineffective in failing to advise them of the immigration consequences of their
pleas. Although they had discussed
potential immigration consequences with counsel, they did not recall what their
attorney had advised them. Nor did they
recall any advisement by the trial court at the plea hearing.
motions.
III. DISCUSSION
A. Probable Cause Certificates
Defendants
were required to obtain probable cause certificates in order to appeal from the
denial of their nonstatutory motions to vacate their guilty pleas. (Pen. Code,
§ 1237.5, subd. (b); People v. Rodriguez (2012) 208 Cal.App.4th 998, 1000; cf.
Cal.App.4th 489, 491-495 [Pen. Code, § 1016.5 motion].) The record includes a signed and filed
certificate of probable cause for Mr. Bedier
and a substantially identical unsigned
and unfiled certificate of probable cause for Ms. Bedier. However, defendants had filed a joint motion
for reconsideration of the trial court’s ruling denying their nonstatutory
motions. The trial court denied
reconsideration. In addition, the minute
order of that date states in part, “The
request for certificate of probable cause is granted.†We recognize that the probable cause
certificate requirement is strictly construed.
(In re Chavez (2003) 30
Cal.4th 643, 651; People v. Mendez (1999)
19 Cal.4th 1084, 1098.) However, there
is no logical reason for the trial court to grant Mr. Bedier a probable cause
certificate but deny Ms. Bedier the same.
Therefore, we construe the trial court’s probable cause certificate
ruling as applying to both defendants.
B. The Record On Appeal
Defendants
sought to augment the record on appeal.
However, with the exception of the August 14, 2006
reporter’s transcript of their guilty pleas, there was no showing any of the
documents were filed in the trial court.
As a result, they could not be included in the record on appeal. (Vons
Companies, Inc., v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3;
484; People v. Honan (2010) 186
Cal.App.4th 175, 179, fn. 3.) Apart from
the aforementioned reporter’s transcript, we have not considered any of the
documents submitted as part of defendants’ augmentation request.
C. Penal Code
Penal
Code section 1016.5, subdivision (a) states:
“Prior to acceptance of a plea of guilty or nolo contendere . . . 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.†As noted above, when defendants pled guilty
in 2006, the trial court gave the required advisement. Defendants and 12 co-defendants were present
at that hearing. Defendants assert for
the first time on appeal that the trial court’s blanket advisement in a multiple
defendant plea hearing did not meet the requirements of Penal Code section 1016.5. This argument was forfeited by failing to
raise it in the trial court. (
691; People v. Lewis and Oliver (2006)
39 Cal.4th 970, 991.)
Even if the
issue were properly before us, we would not find in defendants’ favor. Defendants were present, represented by
counsel and assisted by Arabic language interpreters during the plea
proceedings. The trial court explicitly
advised defendants, “If you are not a citizen of the United States, a plea in
this case will result in deportation, denial of naturalization, denial of
re-entry into this country as well as exclusion from admission.†Defendants subsequently entered their guilty
pleas. That other co-defendants were
present when the advisement was given is constitutionally and statutorily
irrelevant. Defendants were present when
the trial court told them their pleas had potential immigration
consequences. There is no evidence the
presence of additional co-defendants prevented the present defendants from
hearing and understanding the advisement.
D. The Nonstatutory Motions To Vacate Guilty
Pleas
An
ineffective assistance of counsel claim as asserted here is not one encompassed
by section 1016.5. (People v. Kim (2009) 45 Cal.4th 1078, 1107, fn. 20 (
1283, 1285.) Nor is it an appropriate
claim for relief on a nonstatutory motion to vacate a guilty plea or judgment,
i.e., a writ of error coram nobis. (Kim,
supra, 45 Cal.4th at p. 1104; In re
Nunez (1965) 62 Cal.2d 234, 236; People
v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) Defendants’ claim should have been raised in
a new trial motion or a habeas corpus petition.
(Kim, supra, 45 Cal.4th at p.
1104; People v. Buggs (1969) 272
Cal.App.2d 285, 289.) But because
defendants had completed their California probation and were in federal
immigration removal proceedings, they were ineligible for a habeas corpus writ
from a state court. (
1066, 1071-1072; Kim, supra, 45
Cal.4th at p. 1084; People v. Mbaabu (2013)
213 Cal.App.4th 1139, 1149; People v.
Gari (2011) 199 Cal.App.4th 510, 517, fn. 5; People v. Vasilyan (2009) 174 Cal.App.4th 443, 453.) The trial court’s order must be affirmed. Finally, nothing in Padilla v. Kentucky, supra,
559 U.S. at page __ [130 S.Ct. at pages 1486-1487] has any effect on this
case. All of the relevant events in this
case took place prior to the issuance of the Padilla opinion on March 31, 2010.
(Chaidez v. United States,
p. 1105].)
IV. DISPOSITION
The
orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P.J.
We concur:
KRIEGLER,
J.
O’NEILL,
J.
case in 2006, I am now in removal proceedings before the U.S. Department of
Homeland Security. I am informed and
believe that I am subject to removal from the United States and disqualified
from any form of immigration relief due solely to my felony conviction in this
case. [¶] . . .
[¶] . . . Prior to making my plea
in August 2006, I discussed this matter with my attorney, Frank Gomez. I do not recall Mr. Gomez advising me that a
guilty plea in my case would result in my certain removal from the United
States . . . or bar any future immigration applications I might file. I do not recall Mr. Gomez informing me that
my plea in this case would be considered an aggravated felony for immigration
purposes. [¶] . . . Mr. Gomez, prior to my plea in this
case, advised me that he would consult with an attorney with specialized
knowledge of U.S. immigration laws and regulations regarding the immigration
consequences I would face after pleading guilty to violating [Welfare and
Institutions Code, section] 10980[, subdivision] (c) in this case. I do not recall, before my plea was taken, of
being informed of the immigration results of this consultation, or if Mr. Gomez
had received any notification that my felony plea in this case would result in
my certain removal from the United States.
[¶] . . . I do recall Mr. Gomez informing me that if I
did not accept the District Attorney’s
plea offer, I would most certainly serve time in jail. [¶] .
. . When I stood before the Court,
although I was assisted by a[n] Arabic language interpreter, I was extremely
nervous. I do not recall the Judge ever
explaining to me, when I made my plea, that my guilty plea would mean that I
would have no opportunity to stay in the United States, that I may be removed
or that my plea would foreclose any future immigration applications that I may
file. [¶] . . .
Had I known that my plea would lead to my certain removal from the
United States, and prohibit me from any immigration relief in the future, I
would not have entered a guilty plea to [Welfare and Institutions Code section]
10980[, subdivision] (c) in August 2006.
[¶] . . . Of note, I have paid all ordered restitution
and have completed all ordered community service.â€
name="_ftn2" title="">[2] Further statutory references are to the Penal Code.
