P. v. Singh
Filed 5/30/13
P. v. Singh CA5
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JAPINDER JEET SINGH,
Defendant and
Appellant.
Consolidated
Case Nos.
F063231
& F063232
(Super.
Ct. Nos. MF38139 & SUF29990)
APPEAL from
an order of the Superior Court of
County. John W. Parker, Judge. (Assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.)
Robert J.
Beles, John P. McCurley and David Reagan for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant and defendant Japinder Jeet Singh filed, in the trial court,
a nonstatutory motion to vacate his convictions due to ineffective assistance
of counsel. The trial court denied his
motion. Defendant appeals from that
order. On appeal, defendant asserts
that, pursuant to Padilla v. Kentucky
(2010) 559 U.S. 356 [130 S.Ct. 1473] (Padilla),
his motion should have been granted. We
disagree. Padilla neither mandates a vehicle for postjudgment challenges,
such as defendant’s, nor applies to convictions that became final prior to the
date it was decided. Accordingly, we
affirm the trial court’s order denying defendant’s motion.
PROCEDURAL HISTORY
In 1979, when defendant was eight
months old, he entered the United States with his parents as a legal permanent
resident.
In 1998, defendant was convicted of
violating section 496 of the Penal Code, felony receiving stolen property. He was placed on probation.
On August 12, 2002, in Merced County
Superior Court case No. 26998, defendant was convicted of violating section
12316, subdivision (b) of the Penal Code, possession of ammunition by a
felon. He was placed on probation.
On December 24, 2003, in Merced
County Superior Court case No. MF36733, defendant entered a plea of no contest
to violating section 11377, subdivision (a) of the Health and Safety Code,
felony possession of methamphetamine. In
exchange, the People agreed to dismiss three misdemeanor charges and defendant
would receive “Prop. 36†probation.
(Pen. Code, § 1210.1 et seq.)
Defendant was represented by Attorney Michael L. Pro. Defendant initialed and signed a plea form
stating he understood that, if he was not a citizen, his plea would result in
his “deportation (removal), exclusion from admission to the United States, or
denial of naturalization.†Attorney Pro
signed the form stating that he had reviewed the form with defendant and had
explained to him the consequences of the plea.
Defendant was placed on Proposition 36 probation.
On May 20, 2004, in case MF38139,
defendant entered a plea of no contest to violating section 11383, subdivision
(c) of the Health and Safety Code, felony possession of precursor chemicals
with intent to manufacture methamphetamine.
He also admitted violating his probation in cases 26998 and
MF36733. In exchange, the People agreed
to dismiss a felony charge of manufacturing methamphetamine. (Health & Saf. Code,
§ 11379.6.) The People also agreed
to a mitigated term sentence in state prison, plus eight months on each
violation of probation. Defendant was
represented by Attorney Sean P. Howard.
Defendant again initialed and signed a plea form stating he understood
that, if he was not a citizen, his no contest plea would result in his
“deportation (removal), exclusion from admission to the United States, and
denial of naturalization.†Attorney
Howard signed the form stating he had reviewed the form with defendant and had
explained to him the consequences of the plea.
On June 25, 2004, in cases MF36733, 26998, and MF38139, defendant was
sentenced to the term negotiated: three
years and four months in state prison.
On February 16, 2006, the People
filed a complaint (Super. Ct. Merced County, No. MF42893) against defendant
accusing him of committing a violation of section 459 of the Penal Code,
residential burglary, on November 22, 2005.
The complaint also contained the allegation that defendant had a prior
prison term within the meaning of Penal Code section 667.5, subdivision (b). After pretrial motions in the superior court
(now Super. Ct. Merced County, No. SUF29990), on May 11, 2006, defendant
negotiated a plea bargain with the People.
Defendant pled no contest to the charged residential burglary and
admitted his prior prison term. In
exchange, the People agreed that his sentence would be limited to a suspended
state prison sentence, placement on probation, and one year in the county
jail. Defendant was represented by
Attorney William Davis. Defendant
initialed and signed a plea form stating he understood that, if he was not a
citizen, his plea would result in his “deportation (removal), exclusion from
admission to the United States, and denial of naturalization.†Attorney Davis signed the same form stating
he had reviewed the form with defendant and had explained the consequences of
the plea to him. Defendant was sentenced
to a five-year term in state prison.
Execution of that term was suspended and defendant was placed on
probation for a period of three years on condition he serve one year in the
county jail.
On August 28, 2006, an immigration
hold was placed on defendant.
In February 2010, defendant was
deported to India.
In May 2011, defendant filed, in
case Nos. MF38139 and SUF29990, a nonstatutory motion asking the trial court to
grant a new trial or to vacate his convictions based on ineffective assistance
of counsel.
title="">[2]
Attached to the motion were declarations by defendant and Attorney
Davis. Defendant declared he was “never
specifically told†by the court or by his attorneys that his pleas in the last
three felony cases would subject him “to mandatory deportation with no possible
relief from such, and no possibility of return to the United States†and that
his family would be precluded from “ever being able to petition for my return
to the United States.†He went on to
declare that, “[h]ad [he] been told,†he would not have entered into the pleas,
would “have urged my attorney … to pursue a resolution through which
deportation and disqualification for other forms of relief could be avoided,â€
and, if that failed, he would have exercised his right to a jury trial. Attorney Davis declared he reviewed his case
file and “did not find any notes or other documentation, other than the plea
form, indicating that [he] explained or otherwise communicated the immigration
consequences of [defendant’s] plea to him.â€
He further declared he had “no independent recollection†that he advised
defendant of the immigration consequences of his plea.
Defendant argued that his attorneys were ineffective in their failure
“to advise him of the clear immigration consequences of his plea†and for their
failure to “attempt to secure immigration-safe pleas.†He argued that the trial court had the
“inherent authority†to grant a nonstatutory motion to withdraw plea based on
ineffective assistance of counsel. In
support of these arguments, defendant cited Padilla,
supra, 130 S.Ct. 1473, People v.
Fosselman (1983) 33 Cal.3d 572, and People
v. Davis (1973) 31 Cal.App.3d 106.
He contended he was prejudiced because “immigration safe pleas may have
existed that would likely have satisfied the prosecution and the defendant
alike.â€
The People filed an opposition to defendant’s motion. In it, they argued defendant’s nonstatutory
motion was the equivalent of a petition for writ of error coram nobis and, because the alleged grounds were ineffective
assistance of counsel, the motion failed pursuant to People v. Kim (2009) 45 Cal.4th 1078 (Kim). The People also argued
that the record, specifically the plea forms and transcripts in each case,
contradicted defendant’s declaration regarding what he was told and what he
knew. They additionally maintained that
defendant failed to establish prejudice because he failed to show that, had his
attorneys advised him differently, he would have gone to jury trial and the
ultimate result would have been different.
The matter was heard in the trial court on June 10, 2011. After receiving evidence and argument, the
trial court found defendant was advised on three occasions of the deportation
consequences, and found the advice to be the “[r]ight advice.â€
DISCUSSION
On appeal, defendant contends his
trial counsel were ineffective for not exploring “alternative immigration-safe
resolutions.†Specifically, defendant
claims, “had the consequences that [he] was certain to encounter been brought
to his attention before he entered
his no contest pleas, [he] would have either obtained immigration-safe
resolutions through his attorney or gone to a jury trial in each case.†Defendant concedes that he was advised, in each
case, as required by Penal Code section 1016.5,
acknowledges that his nonstatutory motion to vacate his convictions based on
ineffective assistance of counsel is precluded by the California Supreme
Court’s ruling in Kim. He argues, though, that the trial court “has
inherent authority to consider motions to vindicate the violation of
constitutional rights and the statutory authority to alter existing procedures
and fashion new procedures when the interests of justice requires it.â€
Defendant asserts that, in light of Padilla,
this court should modify the ruling in Kim
to permit such motions.
The People argue that defendant’s nonstatutory motion asserting
ineffective assistance of counsel is “the legal equivalent of a petition for a
writ of error coram nobis.†Relying on
ineffective assistance of counsel “‘cannot be vindicated on coram nobis,’†the
trial court properly denied defendant’s motion.
Additionally, the People argue defendant’s attorneys were not ineffective
as demonstrated by the trial court’s determination that the three plea forms
established defendant’s attorneys advised him of the immigration consequences
of his pleas.
Remedies are available to defendants
who have received ineffective assistance of counsel. Such a violation can be raised in a motion to
withdraw plea (Pen. Code, § 1018), a prejudgment motion for new trial (
Code, § 1182), on appeal (Pen. Code, § 1237), or in a petition for a writ of
habeas corpus (People v. Pope
(1979) 23 Cal.3d 412, 426). A
nonstatutory motion to vacate, however, is not one of the available
remedies. Such a motion “has long been
held to be the legal equivalent of a petition for a writ of error
supra, 45 Cal.4th at p. 1096.)
A claim of ineffective assistance of counsel is not an appropriate
ground for relief on coram nobis. (Id.
at p. 1104; People v. Mbaabu (2013)
213 Cal.App.4th 1139, 1144, 1147; People
v. Shokur (2012) 205 Cal.App.4th 1398, 1403-1404; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.)
In Kim, the defendant entered the United States legally with his
parents when he was a young child. As a
result of multiple criminal convictions, the federal government initiated
removal proceedings. (
(CORAM NOBIS)’â€
and a “‘NON-STATUTORY
MOTION AND MOTION
TO VACATE
JUDGMENT’†in the trial court seeking to vacate those
convictions. (Id. at p. 1089.) The
second motion alleged his constitutional rights were violated “because his
trial counsel ‘rendered ineffective assistance of counsel for his failure
adequately to investigate the immigration consequences of the conviction’ and
also ‘for his failure to defend Mr. Kim against a plea that would result in
mandatory deportation or to make any effort to get an equivalent nondeportable
conviction.’†(Ibid.) The trial court
granted both motions. (
California Supreme Court granted review.
(Id. at p. 1091.)
The Supreme Court found several procedural bars to relief (
1096-1101), but it also found the defendant’s assertion that his trial attorney
was constitutionally ineffective for “failing to investigate the immigration
consequences†of his plea and for “failing to negotiate an alternative plea to
a nondeportable offense†did not “state[] a case for relief on
pp. 1102, 1104.)
Contrary to defendant’s assertion, Padilla
does not assist him. First, in
rejected the concept that immigration consequences of criminal convictions are
collateral and so counsel need not advise clients about them. (Padilla,
supra, 130 S.Ct. at p. 1478.) It
held that the Sixth Amendment guarantee of the effective assistance of counsel
requires an attorney for a criminal defendant to provide advice about the risk
of deportation arising from a guilty plea.
(Padilla, supra, 130 S.Ct. at
p. 1482.) The high court then analyzed
whether Padilla’s counsel’s representation fell below an objective standard of
reasonableness, the test set out in Strickland
v. Washington (1984) 466 U.S. 668. (
1482-1483.) The high court did not discuss
or rule on the permissible procedural vehicles for raising the issue. As the appellate court stated in
at page 1405, “Padilla does not
require states to provide an avenue for noncitizens to challenge their convictions
based on an erroneous immigration advisement when no other remedy is presently
available. That issue was not presented
to the high court as Kentucky permits a motion to vacate a conviction by ‘[a]
prisoner in custody under sentence or a defendant on probation, parole or
conditional discharge.’ [Citations
omitted.]â€
In People v. Shokur, supra,
205 Cal.App.4th 1398, Shokur raised the same procedural issue urged by
defendant in this case. Shokur was
convicted and sentenced. Seven years
later, after he had “successfully completed probation; after he successfully
had his guilty plea withdrawn, a not guilty plea entered, and the case
dismissed pursuant to Penal Code section 1203.4; and after he subsequently pled
guilty to two counts of robbery (Pen. Code, § 211) in another Orange County
case, [he] brought what he styled as a nonstatutory motion to set aside his
conviction … based on counsel’s alleged ineffectiveness for not explaining the
immigration consequences of his guilty plea.â€
(Id. at p. 1401.) Shokur recognized that he did not qualify for
relief under habeas corpus or error coram
nobis. (Ibid.) He asserted, however,
that a nonstatutory motion was required by Padilla,
supra, 130 S.Ct. 1473, People v.
Fosselman, supra, 33 Cal.3d 572, and Murgia
v. Municipal Court (1975) 15 Cal.3d 286.
The appellate court disagreed.
“The cases relied upon do not … compel the conclusion that the trial
court retains jurisdiction to vacate its long-since final judgment when the
state provides the means for challenging the judgment and the time limits in
which the various remedies must be exercised have expired. In other words, a nonstatutory motion is not
an all-encompassing safety net that renders all other remedies redundant and
their respective time restrictions meaningless.†(People
v. Shokur, supra, 205 Cal.App.4th at p. 1404.)
Second, the ruling in Padilla
does not apply retroactively. A person
whose conviction became final before
Padilla was decided does not benefit
from it. (Chaidez v. United States (2013) __ U.S. __ [133 S.Ct. 1103,
1105].) “State convictions are final
‘for purposes of retroactivity analysis when the availability of direct appeal
to the state courts has been exhausted and the time for filing a petition for a
writ of certiorari has elapsed or a timely filed petition has been finally
denied.’ [Citations.]†(Beard
v. Banks (2004) 542 U.S. 406, 411.)
Penal Code section 1237 identifies an order granting probation as a
final judgment for purposes of taking an appeal. (People
v. Amons (2005) 125 Cal.App.4th 855, 868.)
When the time for appeal lapses during a probationary period, the
sentence becomes “‘final and nonappealable.’â€
(Id. at p. 869.) Defendant’s convictions were final years
before the high court issued its decision in Padilla. Defendant cannot
now “benefit from its holding.†(
S.Ct. at p. 1113.)
Just as the California Supreme Court
declined the invitation to expand the historic boundaries of the writ of error
common law
postconviction,
postcustody remedy†(Kim, supra, 45
Cal.4th at p. 1107), so do we.
Defendant’s nonstatutory motion, filed five years after his sentencing
in 2006 and asserting ineffective assistance of counsel, was properly denied by
the trial court.
Even if defendant’s claim that the
trial court abused its discretion when it denied his motion to vacate his pleas
was properly before us, we would reject it because defendant did not meet his
burden of showing he was denied the effective assistance of counsel when he
entered any of the three pleas at issue.
falling below an objective standard of reasonableness under prevailing
professional norms; and (2) the deficient performance resulted in
prejudice. [Citations.]†(People v. Montoya (2007) 149
Cal.App.4th 1139, 1146-1147.)
In each
case, defendant was advised, as evidenced by the change of plea form, that his
plea would result in his deportation, exclusion from reentry, and denial of
naturalization. In each case,
defendant’s counsel signed an acknowledgement on the change of plea form that
he had gone over the case with defendant and explained to him the consequences
of his plea. Further, defendant provided
a declaration from only one of the attorneys who represented him in the three
cases, and that attorney stated only that his notes did not reflect whether he
had advised defendant of the immigration consequences of his plea. Moreover, defendant did not provide any
corroboration for his assertion that
none of the attorneys who represented him in the three cases
at issue explained to him the immigration consequences “[he] was certain to
encounter.†In fact, the plea forms
demonstrate the opposite. The trial
court could reasonably have found from these circumstances that defendant did
not meet his burden of showing the performance of his defense counsel in each
case was deficient. Therefore, since
defendant failed to meet his burden of proving he was denied the effective
assistance of counsel in entering any of the pleas at issue, the trial court
did not abuse its discretion when it denied his motion.
DISPOSITION
The order of the superior court denying defendant’s motion is
affirmed.
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
CORNELL, Acting P.J.
_____________________
KANE, J.
name="_ftn1" title="">[1] The
facts underlying defendant’s criminal offenses are not pertinent to this
appeal; hence, we omit them.
name="_ftn2" title="">[2] Although
defendant did not list, in the caption of his motion, case MF36733, he referred
to it in the body of the motion.
