P. v. Machado

Filed 2/20/08 P. v. Machado 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT:^*

Socrates Machado (appellant) appeals from the denial of his motion to vacate his 1986 guilty plea and the subsequent judgment. We appointed counsel to represent appellant 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 October 30, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. No response has been received to date.

The record shows that on February 10, 1986, appellant pleaded guilty to one count of sale or transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a). In exchange, appellant was granted probation and sentenced to time served.

On September 22, 2006, appellant filed a motion to vacate his plea and judgment based on ineffective assistance of counsel. Appellant alleged his trial counsel failed to litigate a motion to suppress evidence, failed to obtain fingerprint evidence, failed to file a motion to dismiss under Penal Code section 995, and failed to inquire whether the plea was the result of coercion. Most significantly, appellant alleged that his trial counsel failed to investigate appellants immigration status, research immigration law, and inform appellant of the actual immigration consequences of the plea and attempt to avoid them.

The motion and appellants attached declaration make it clear that appellants real concern is articulated in the latter complaint of ineffective assistance. Appellants entire discussion in his motion is devoted to counsels failure to ascertain defendants immigration status, his failure to properly advise appellant in this regard, and a failure to try to achieve a plea more favorable to maintaining a favorable immigration status. In his declaration, appellant states he is in danger of deportation because his conviction is considered to be an aggravated felony.

The court hearing the motion declared it did not believe that ineffective assistance of counsel was properly raised in a motion to vacate. The court went on to address appellants ineffective assistance claims, however, and found that, given the facts of his case and the circumstances surrounding the taking of the plea, his claims were without merit.

The trial court was correct in its belief that appellant could not raise the issue of ineffective assistance of counsel in a motion to vacate his plea. A nonstatutory motion to vacate the judgment is recognized as equivalent to a petition for the common law remedy of a writ of error coram nobis. (People v. Miranda (2004) 123 Cal.App.4th 1124, 1132, fn. 6, quoting People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.) In People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983, the court stated, 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].

A claim such as appellants must be raised on direct appeal or in a motion for writ of habeas corpus. (People v. Gallardo, supra, 77 Cal.App.4th at p. 987; People v. Goodrum (1991) 228 Cal.App.3d 397, 400, fn. 4; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) Where coram nobis raises only ineffective assistance of counsel, an appeal from the superior courts ruling may be dismissed as frivolous. (People v. Gallardo, supra, at p. 983; see also People v. Shorts (1948) 32 Cal.2d 502, 516-517; People v. Sumner (1968) 262 Cal.App.2d 409, 413, 414.) We therefore dismiss appellants appeal from the trial courts denial of his motion to vacate the 1986 plea and judgment.

In addition, we have examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The appeal is dismissed.

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^* BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.