P. v. Han

Filed 3/24/10 P. v. Han CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In June 1999, defendant Xiao Han pleaded no contest to two felonies, false imprisonment and sexual assault. The court placed defendant on probation and ordered him to serve 364 days in county jail. In July 2009, defendant filed a motion with the court that was captioned Petition for Writ of Habeas Corpus[;] Motion to Vacate the Judgment Pursuant to Penal Code Section 1016.5 (the motion). The motion was denied, and defendant filed a timely appeal. We will affirm the judgment.

PROCEDURAL HISTORY[1]

A felony complaint was filed on January 21, 1999, alleging one count of felony false imprisonment (Pen. Code, 236/237; count 1),[2] and one count of misdemeanor sexual battery ( 243.4, subd. (d); count 2). The alleged acts occurred on January 16, 1999. On motion of the District Attorney, the complaint was thereafter amended to add a third felony count of assault with intent to commit rape ( 220). On June 4, 1999, defendant pleaded no contest to the two felony counts on the condition that he would receive a county jail term of 364 days. Before accepting the plea, defendant was apprised of the rights he was giving up as a result of his no contest plea and concerning the consequences of that plea. The court found a factual basis for the plea. Further, the court ordered the matter be referred to superior court. On January 28, 2000, the court placed defendant on three years probation and imposed certain conditions, including the condition that defendant serve 364 days in county jail. The court further struck count 2.[3]

On July 22, 2009, defendant filed the motion. The court denied the motion on August 7, 2009, concluding that (1) to the extent defendant was invoking section 1016.5, that motion was denied because the record reflected that he was fully apprised of the immigration consequences of entering a no contest plea; and (2) to the extent defendant was seeking habeas corpus relief, the court had no jurisdiction because defendant was neither in actual or constructive custody. Defendant filed a timely notice of appeal from the order denying the motion.[4]

DISCUSSION

We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which stated the case and requested that this court independently review the record on appeal. In its brief, appointed counsel argued no specific issues on their merits; however, he identified the following issue . . . to assist the court in conducting its independent review of the record: [] The motion to vacate judgment should have been granted because the superior court failed to provide additional time upon request for appellant to consider the immigration consequences of his plea. (See  1016.5, subds. (b) & (d); Totari, supra, 28 Cal.4th at p. 884; In re Resendiz (2001) 25 Cal.4th 230, 253 (lead opn.).) We notified defendant of his right to submit written argument on his own behalf within 30 days. We thereafter received defendants supplemental brief, filed December 22, 2009.

We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436. Based upon that reviewincluding a review of the issue identified in the opening brief and the matters argued in the supplemental briefwe have concluded that there is no arguable issue on appeal.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Mihara, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The record does not provide any information from which to summarize the factual background concerning the offenses of which defendant was convicted.

[2] Further statutory references are to the Penal Code unless otherwise stated.

[3] We note that, after the court denied a motion by defendant to withdraw his plea, he filed a prior appeal. In an opinion filed in October 2001, we rejected defendants claim that the court erred in denying that motion and also rejected defendants claim that his trial counsel was ineffective in advising him of the immigration consequences of his plea. Pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a), we take judicial notice of our prior opinion. (People v. Han (Oct. 23, 2001, H021244) [nonpub. opn.] review den. Jan. 23, 2002.)

[4] There was some question as to the appealability of the order. Although a trial courts denial of a petition for writ of habeas corpus is not reviewable by appeal (People v. Garrett (1998) 67 Cal.App.4th 1419, 1421-1422), an order denying a motion under section 1016.5 is appealable (People v.Totari (2002) 28 Cal.4th 876, 886-887 (Totari)). Since defendants motion in part sought to vacate the judgment pursuant to section 1016.5, and the court treated the motion in part as such, we find that the order from which the appeal is taken, insofar as it denied defendant relief under section 1016.5, is appealable. (Totari, at pp. 886-887.)