P. v. Lambey

 

 

 

 

 

 

 

 

Filed 9/18/13  P. v. Lambey CA2/2

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 TWO

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   JEAN LAMBEY,               Defendant and Appellant.

B245504         (Los Angeles County       Super. Ct. No. BA161388)

 

THE COURT:href="#_ftn1"
name="_ftnref1" title="">*

 

            Jean
Lambey (defendant) appeals following the denial of her motion to vacate her
1998 guilty plea to one count of assault
with a deadly weapon in violation of Penal Code section 245, subdivision
(a)(1).href="#_ftn2" name="_ftnref2" title="">[1]  The trial court granted defendant’s request
for a certificate of probable cause.

            We
appointed counsel to represent
defendant on this appeal.  After
examination of the record, counsel filed an “Opening Brief” containing an
acknowledgment that she had been unable to find any arguable issues.  On May
1, 2013, we advised defendant that she had 30 days within which to
personally submit any contentions or
issues that she wished

us to consider.  No response has been
received to date.

            The
record shows that, on July 23, 2012,
defendant filed a motion to vacate
her 1998 guilty plea based on ineffective assistance of counsel.  In the motion, defendant stated that she did
not recall her attorney at the taking of the plea asking her if she was a
United States citizen or advising her that the guilty plea would permanently
and negatively affect her immigration status and future applications.  Her attorney did not advise her to consult an
attorney with specialized knowledge of United
States immigration laws.

            The
record contains a minute order dated March 24, 1998, stating that
defendant pleaded guilty to the charge of assault with a deadly weapon. There
is no reporter’s transcript of the plea hearing.  The minute order shows that defendant was
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.” 
Imposition of sentence was suspended and defendant was placed on three
years of formal probation.

            On
November 19, 2001, the trial
court terminated defendant’s probation. 
The minute order from that proceeding states that the trial court
granted defendant’s motions pursuant to sections 1203.4 or 1203.4a and 17.  Although there is no reporter’s transcript,
it appears the court reduced defendant’s offense to a misdemeanor, allowed her
to withdraw her plea of guilty, and dismissed the information under section
1203.4.  In her motion to vacate,
defendant noted that a section 1203.4 motion is of no consequence for
immigration purposes, citing People v.
Totari (2002) 28 Cal.4th 876, 879-880 (defendant deported despite the
expungement of his record under sections 1203.3 and 1203.4).  Defendant notes that immigration authorities
are free to ignore state rehabilitative reductions and expungements for
immigration purposes, citing Murillo-Espinoza
v. I.N.S. (9th Cir. 2001) 261 F.3d 771, 774 (court adopts conclusion of
Board of Immigration Appeals that Congress intended to establish a uniform
federal rule precluding recognition of subsequent state rehabilitative
expungements of convictions).

            In
denying defendant’s motion to vacate her 1998 plea, the court below observed
that the minute order clearly reflects that defendant was advised of her
immigration consequences by either the district attorney or the court in the
taking of the plea.  The court also noted
that under section 1203.4, defendant’s plea had already been withdrawn and the
case dismissed, and “technically, there is no case.”  Defense counsel requested that, if the court
was inclined to deny the motion to vacate, it do so without prejudice so that
he might further research the issue and resubmit the motion if the research
proved fruitful.  The trial court denied
the motion without prejudice.

            We
have examined the entire record and are satisfied that defendant’s attorney has
fully complied with her responsibilities and that no href="http://www.fearnotlaw.com/">arguable issues exist.  (People
v. Wende (1979) 25 Cal.3d 436, 441.)

The order denying
the motion to vacate is affirmed.

NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.