P. v. Gutierrez

Filed 7/14/09 P. v. Gutierrez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryne A. Stoltz, Judge. Appeal dismissed.

Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

On February 2, 2000, Juan Antonio Gutierrez pled no contest to possession of cocaine base for sale (Health & Saf. Code, 11351.5). The trial court suspended imposition of sentence and placed Gutierrez on summary probation for a period of three years. On January 22, 2008, Gutierrez filed in the trial court a petition for writ of error coram nobis alleging his 2000 plea had been involuntary and should be set aside as he had received ineffective assistance of counsel. The trial court denied the petition and Gutierrez appealed. Because denial of a writ of error coram nobis based on an allegation of ineffective assistance of counsel is not an appealable order, we dismiss the appeal.

BACKGROUND

1. The 2000 plea.

In an information filed November 19, 1999, Gutierrez was charged with one count of possession for sale of cocaine in violation of Health and Safety Code section 11351. On February 2, 2000, Gutierrez entered into a negotiated plea agreement under the terms of which he was to plead no contest to possession for sale of cocaine base in violation of Health and Safety Code section 11351.5. In exchange, the trial court was to suspend imposition of sentence and place Gutierrez on probation for a period of three years under specified conditions.

Gutierrez personally and explicitly waived his rights under Boykin/Tahl[1] and was then advised: If you are not a citizen, you are hereby advised that a 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. The trial court found that Gutierrez had knowingly, understandingly, and explicitly waived his constitutional rights and that counsel had joined in the waivers. The trial court ordered no fines or fees and sentenced Gutierrez to 223 days in county jail, or time served.

2. The 2008 petition for writ of error coram nobis.

On January 22, 2008, Gutierrez filed a petition for writ of error coram nobis in the trial court on the grounds that the guilty plea entered in the above matter, on which the judgment of conviction is premised, was not made knowingly and understandingly [and] as such[,] the plea entered is void as not having been made voluntarily. Gutierrez alleged his trial counsel had been ineffective by failing to advise him of the immigration and deportation consequences of the plea.

In his declaration in support of his petition, Gutierrez indicated he had immigrated to the United States from Mexico in 1981, when he was 17 years old. He had been granted permanent residency and obtained a green card in 1987. He had been represented in the 2000 case by a public defender. According to Gutierrez, his counsel had told him that, although the trial court would be making certain statements about immigration consequence[s] and certain things about deportation, those statements were simply routine and had nothing to do with Gutierrezs case. When Gutierrezs counsel inquired of the district attorney whether there was an immigration hold in Gutierrezs case, the district attorney said there was not. Finally, Gutierrez stated: I would not have pled guilty, even though I had been incarcerated for more than three months and even though I suffered greatly when I was in jail, if my attorney had not made the statements about there being no effect on my green card, about deportation and about the statements of the Judge and the District Attorney not applying in my case. I would not have pled guilty if my attorney had not made the statement that there was nothing to worry about concerning deportation. Gutierrez then requested that the court allow him to withdraw his plea.

3. The 2008 hearing.

At a hearing held on the matter on May 14, 2008, Gutierrez testified that, when he asked his counsel about the effect his plea would have on his immigration status, counsel had told Gutierrez it was not going to be a problem. Gutierrez did not remember counsel telling him that the judge would be making statements regarding the immigration consequences of his plea, but that they would not apply to him. Gutierrez did remember that counsel had told him he need not worry about deportation and that his plea would not affect the status of his green card. Gutierrez did not remember acknowledging that he understood that he could be deported or denied naturalization if he entered a plea of guilty or no contest to the alleged offense.

Gutierrez remembered that defense counsel had asked the trial court whether he, Gutierrez, was the subject of an immigration hold. When the trial court indicated that there were no deportation orders, Gutierrez understood that to mean that he would never have to worry about being deported as a result of his plea. Gutierrez believed that, if a person were going to be deported as the result of a crime, he would be deported from jail. Accordingly, he wished to be released from custody as soon as possible.

Gutierrez testified that, at some point, he was able to get his conviction for possession of cocaine base for sale expunged. In addition, Gutierrez had neither been charged with nor suffered a criminal conviction since his 2000 plea. Finally, had Gutierrez known his plea of eight years earlier could result in his deportation, he never would have entered it.

Counsel who represented Gutierrez at the 2000 proceedings testified that he is presently a head deputy with the Los Angeles County Public Defenders Office. He has been a public defender for approximately 24 years. After reviewing Gutierrezs file, counsel remembered the case and some of [his] dealings with Gutierrez. According to counsel, Gutierrez had grave concerns about losing his residence status as a result of the pending case. Gutierrez did not wish to enter a plea that would cause his deportation. Counsel made a motion to suppress evidence pursuant to Penal Code section 1538.5, which the trial court denied. It was then determined that Gutierrez might benefit most from entering a plea. The prosecutor had made an offer of summary probation with one condition being time served. Gutierrez believed he had the best chance of avoiding an immigration hold if he were released from jail as soon as possible. He wanted to get out of jail without having an immigration hold being put on him. Counsels notes read:  Defendant pleads with hope of release. Will deal with immigration from the outside hoping that summary probation will increase his chances of slipping through. Counsel stated that [p]art of the discussion [concerned] ways to avoid the conviction, of course, and discussed the possibility of filing an appeal to the 1538.5 either as part of the plea or at some other time. [] I have a note that we checked the sheriffs computer to see whether or not there was an immigration [hold] placed on Mr. Gutierrez. It was determined there was no hold at that time.

Counsel testified it was his recollection that this was a case where we tried everything possible to avoid the immigration consequences. It came down to . . . the end of the road with no other options other than pleading or going to trial; and the important point for Mr. Gutierrez was to get out of jail . . . . Counsel had no recollection of telling Gutierrez that his conviction would have no effect on his immigration status. Neither did counsel recall ever telling Gutierrez that the court would make statements about possible immigration consequences which would have no application to Gutierrez. In his career as a public defender, counsel had never made such a statement to a client. Counsel continued, What my notes tell me is that I must have talked with him about the fact that there was not a hold placed on him and summary probation its not really that summary probation would help him slip through but that it was a time-served offer that [got] him out [of jail].

Rebecca Fernandez had been Gutierrezs friend for approximately 10 years. She believed Gutierrez had a visa and was in this country lawfully. She knew that, in the year 2000, Gutierrez had spent some time in jail. After Gutierrez was released from jail, he and Fernandez had had a conversation regarding the issue of deportation. Gutierrez had told Fernandez that she need not worry that he would be deported. Gutierrez indicated his lawyer had told him there was no immigration hold on him and that he need not worry about it.

Following argument by the parties, the trial court denied Gutierrezs petition for writ of error coram nobis on May 29, 2008.

Gutierrez filed a notice of appeal from the trial courts order on July 14, 2008.

DISCUSSION

For better or worse, the terms motion to vacate and petition for writ of error coram nobis are often used interchangeably and the two procedures are similar in scope and effect. [Citation.] However, courts have applied more precise rules for appeals from denials of petitions for writ of error coram nobis. Denial of a defendants request for coram nobis relief is[,] [in general,] appealable [citation] unless the petition failed to state a prima facie case for relief [citation] or the petition merely duplicated issues which had or could have been resolved in other proceedings [citations]. [] Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel [citation] or where the claim is that the defendant did not receive effective assistance from counsel [citations]. Where coram nobis raises only such grounds, an appeal from the superior courts ruling may be dismissed as frivolous. [Citations.] (People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983 (fn. omitted); People v. Ibanez (1999) 76 Cal.App.4th 537, 546, fn. 13; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [As to defendants . . . claimthat he was deprived of effective assistance of counsel in making his guilty pleathis claim is not an appropriate basis for relief by writ of coram nobis. [Citations.] The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by petition for a writ of habeas corpus].)

In the present case, Gutierrez asserts his plea was involuntary because his counsel misguided him and failed to properly represent him. Apart from whether Gutierrezs claim his counsel was ineffective has merit, the contention does not present a proper basis for relief from the trial courts denial of his petition for a writ of error coram nobis. Accordingly, Gutierrezs appeal will be dismissed.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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[1]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.