P. v.
Filed 3/5/12 P. v. Martinez CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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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.
DAVID MARTINEZ,
Defendant and Appellant.
B230901
(Los Angeles
County
Super. Ct.
No. VA100767)
APPEAL from
an order of the Superior Court of the County
of Los
Angeles, Roger Ito, Judge.
Affirmed.
Law Offices
of Elsa Martinez, Lucrecia A. Boado, Elsa I. Martinez, and Xavier Rosas for
Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Martinez (defendant) pleaded
guilty to two counts of perjury pursuant to a
habeas corpus petition seeking to vacate his conviction on the ground that he
was not advised of the adverse immigration consequences of his plea. Thereafter, he filed a nonstatutory motion in
the trial court to vacate his conviction on the same ground. The trial court ruled that it lacked
jurisdiction to hear that motion and therefore denied it.
On appeal,
defendant contends that the trial court had inherent jurisdiction to remedy the
violation of his constitutional right
to be advised of the immigration consequences of his plea. We hold that the trial court properly denied
defendant’s nonstatutory motion to vacate his conviction. We therefore affirm the order from which
defendant appeals.
FACTUAL AND PROCEDURAL BACKGROUND
The Los
Angeles County District Attorney filed a felony complaint for an arrest warrant
alleging in count 1 that defendant had committed perjury in an application for
an identification card in violation of Penal Code section 118, subdivision (a);
burglary in violation of section 459; in count 3 with perjury in an application
for a driver’s license in violation of section 118, subdivision (a); and in
count 4 with second degree commercial burglary in violation of section
459. On August 15, 2007, at an early
disposition hearing, defendant entered a plea of no contest to the two perjury
counts pursuant to a written plea agreement.
placed defendant on formal probation for three years. Defendant did not appeal from the judgment of
conviction.
Almost two
years later, defendant filed a petition for writ of habeas corpus in the Court
of Appeal (Case No. B217762).
name="_ftnref3" title="">[3] Defendant argued that he had received
ineffective assistance of counsel with respect to the plea agreement because
his trial counsel had misadvised him about the immigration consequences of his
plea. On August 26, 2009, this court
denied the petition on the grounds that defendant had failed to demonstrate
that he had presented his claims to the trial court in the first instance.
Over a year
later, on October 28, 2010, defendant filed in the trial court a nonstatutory
motion to vacate the judgment of conviction on the perjury counts, again
arguing that he had been misadvised concerning the immigration consequences of
his plea. Following additional briefing
on whether the trial court had jurisdiction to hear and determine that motion,
the trial court denied the motion on the ground that the court lacked
jurisdiction to determine it. Defendant
then requested and the trial court issued a certificate of probable cause. This appeal followed.
DISCUSSION
Relying on
the United
States Supreme Court decision in Padilla
v. Kentucky (2010) __ U.S. __, 130 S.Ct. 1473 (Padilla) and the California Supreme Court decision in
(Fosselman), defendant contends that
the trial court had jurisdiction to hear and determine his nonstatutory motion
to vacate his conviction. According to
defendant, because he had a Sixth Amendment right to be adequately advised by
his trial counsel of the immigration consequences of his plea, the trial court
had inherent jurisdiction to determine whether that right had been
violated. Defendant concludes that
without such inherent jurisdiction, he would have no procedural means of
vindicating the violation of his constitutional right as recognized in
Defendant’s
reliance on Padilla, supra, 130 S.Ct.
1473 and Fosselman, supra, 33 Cal.3d
572 is misplaced. Padilla involved an issue of substantive federal constitutional
law—whether an alien criminal defendant in a state court proceeding had a Sixth
Amendment right to be advised by counsel of the immigration consequences of a
plea. In ruling that an alien criminal defendant
had such a constitutional right, the court in Padilla did not state or imply that a state trial court had
inherent authority to hear and determine a nonstatutory motion to vacate a
conviction based on ineffective assistance of counsel. Here, there is no dispute about whether
defendant had a right under the Sixth Amendment to accurate advice about the
immigration consequences of his plea; the issue is whether the trial court can
at this juncture vacate defendant’s conviction based on ineffective assistance
of counsel in connection with the explanation of that right. Padilla
therefore has no application to the jurisdictional issue at bar.
Moreover,
although it involved a procedural issue concerning a trial court’s authority to
hear a nonstatutory motion, our Supreme Court’s decision in
as defendant contends, analogous to this case.
In Fosselman, the issue was
whether a trial court had inherent authority to hear a nonstatutory motion for
new trial based on ineffective assistance of counsel that allegedly occurred
during trial. In this case, defendant
did not move for a new trial; he moved over three years after he pleaded guilty
to perjury to vacate that conviction.
Thus, the holding in Fosselman
that recognized a trial court’s inherent power to determine a motion for new
trial based on ineffective assistance of counsel does not address the
jurisdictional issue presented in this case.
This case
is controlled by our Supreme Court’s decision in People v. Kim (2009) 45 Cal.4th 1078 (Kim). In that case, the
defendant filed, inter alia, a nonstatutory motion to vacate his conviction
based on his plea to felony petty theft.
(Id. at p. 1089.) The nonstatutory motion was based on a claim
of ineffective assistance of counsel—specifically the failure of defendant’s
trial counsel to inform him of the immigration consequences of his plea. (Ibid.) In ruling that the trial court erred in
granting that nonstatutory motion, the court in Kim explained that “a nonstatutory motion to vacate has long been
held to be the legal equivalent of a petition for a writ of error coram nobis .
. . .” (Id. at p. 1096.) The court
in Kim then held, however, that “a
claim of ineffective assistance of counsel, which relates more to a mistake of
law than a mistake of fact, is an inappropriate ground for relief on
p. 1104.) According to the court in
defendant’s constitutional right to effective assistance of counsel should have
been “raised in a motion for a new trial or in a petition for a writ of habeas
corpus.” (Ibid.) But, because the
defendant had served his sentence and completed his probation or parole period,
the court in Kim held that he could
no longer challenge his conviction by a writ of habeas corpus. (Id. at
p. 1108.)
In reaching
the foregoing conclusions about the unavailability of either coram nobis or
habeas corpus relief, the court in Kim,
supra, 45 Cal.4th 1078 expressly rejected a contention, similar to the one
defendant makes here, that the defendant was not provided a reasonable
opportunity to vindicate his constitutional rights. According to the court in
opportunities to challenge the correctness of the judgments against them. They
are of course provided attorneys to defend them and are guaranteed the right to
a jury trial. (Kim, supra, 45 Cal.4th at p. 1105.)
“Following a plea or conviction, a
defendant can move to withdraw a plea, (fn. omitted) or can appeal a judgment
of conviction and then if necessary seek discretionary review in this
court. Having exhausted those avenues of
potential relief, the defendant during the time of actual or constructive
custody can file a petition for a writ of habeas corpus in an appropriate
court. (Fn.
omitted.) Following completion of
probation, an offender may in some circumstances petition the trial court to
withdraw a guilty plea and enter a not guilty plea or set aside a verdict of
guilty and have the matter dismissed. (§
1203.4.) One convicted of a crime can
also seek a pardon from the Governor. (Mendez
v. Superior Court [(2001)]
87 Cal.App.4th [791,] 803.) In short,
criminal defendants do not lack reasonable opportunities to vindicate their
correct legal errors infecting their judgments.” (Kim,
supra, 45 Cal.4th at pp. 1105-1106.)
Applying
the principles of Kim, supra, 45
Cal.4th 1078 to the facts of this case, we conclude that defendant’s nonstatutory
motion was, in effect, a petition for a writ of error coram nobis
on a claim of ineffective assistance of counsel that raised a legal issue that
could not be determined on such a petition.
We also conclude that defendant’s motion cannot be treated as a petition
for habeas corpus because defendant is no longer in actual or constructive
custody. Because it appears that
defendant had a reasonable opportunity to vindicate his constitutional right to
effective assistance of counsel, the trial court correctly denied his motion to
vacate as unauthorized by either statute or under the common law. Therefore, the order denying the motion must
be affirmed.
The trial court’s order denying defendant’s motion to
vacate his conviction is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
MOSK,
J.
I concur:
KRIEGLER,
J.
I disagree
with my colleagues’ decision to discuss the merits of the case. I thus dissent from the majority
opinion.
I agree
with the Attorney General that the order under review, a challenge to the
effectiveness of trial counsel improperly raised in a coram nobis petition, is
not appealable. (People v. Miranda
(2004) 123 Cal.App.4th 1124, 1132, fn. 6; People v. Gallardo (2000) 77
Cal.App.4th 971, 982-983; see People v. Chien (2008) 159 Cal.App.4th 1283,
1290-1291.) I would dismiss the
appeal.
TURNER,
P. J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] In
the plea agreement and in the trial court, defendant acknowledged that his
guilty plea could result in deportation.
