P. v. Garcia
Filed 9/28/10 P. v. Garcia CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
JUAN CARLOS GARCIA,
Defendant
and Appellant.
_____________________________________
JUAN CARLOS GARCIA,
Petitioner,
v.
SUPERIOR COURT OF
LOS ANGELES
COUNTY,
Respondent;
THE PEOPLE,
Real
Party in Interest.
_____________________________________
In re
JUAN
CARLOS GARCIA,
on
Habeas
Corpus.
B219284
(Los
Angeles County
Super. Ct.
No. NA021915)
B219548
B220182
APPEAL from an order of the Superior
Court of Los Angeles
County, Arthur Jean, Judge. Affirmed.
PETITION for Writ of Mandate. Writ dismissed.
PETITION for Writ of Habeas
Corpus. Writ denied.
Wendy Chase Arenson and Reyna M.
Tanner, under appointment by the Court of Appeal, for Defendant, Appellant and
Petitioner
Edmund G. Brown, Jr., Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Victoria B. Wilson and Yun K. Lee, Deputy
Attorneys General, for Plaintiff, Respondent and Real Party in Interest.
In
1994, Juan Carlos Garcia pleaded no
contest to one count of second degree burglary of an automobile. (Pen. Code, § 459.) In 2009, Garcia filed a motion to
vacate the no contest plea, a petition for writ of error coram nobis and a
petition for writ of habeas corpus.
These pleadings sought to set aside the no contest plea entered
in 1994 on the grounds the trial court failed to advise Garcia of the
immigration consequences of his plea as required by Penal
Code section 1016.5, subdivision (a), and defense
counsel rendered ineffective
assistance.[1] The trial court denied the motion.
We
conclude the advisement given to Garcia at the time he entered the no contest
plea substantially complied with section 1016.5, subdivision (a). We further
conclude Garcia's claim of ineffective assistance of
counsel cannot be raised in the context of a statutory motion under section
1016.5 or in a petition for writ of error coram nobis and habeas corpus relief
is unavailable to Garcia as he is not presently in custody as a result of the
burglary conviction.
On
October 18, 1994, Garcia
pleaded no contest to second degree burglary of an automobile in violation of
section 459. The reporter's transcript
of the change of plea reflects the trial court advised Garcia as follows: â€
| Description | In 1994, Juan Carlos Garcia pleaded no contest to one count of second degree burglary of an automobile. (Pen. Code, § 459.) In 2009, Garcia filed a motion to vacate the no contest plea, a petition for writ of error coram nobis and a petition for writ of habeas corpus. These pleadings sought to set aside the no contest plea entered in 1994 on the grounds the trial court failed to advise Garcia of the immigration consequences of his plea as required by Penal Code section 1016.5, subdivision (a), and defense counsel rendered ineffective assistance.[1] The trial court denied the motion. We conclude the advisement given to Garcia at the time he entered the no contest plea substantially complied with section 1016.5, subdivision (a). We further conclude Garcia's claim of ineffective assistance of counsel cannot be raised in the context of a statutory motion under section 1016.5 or in a petition for writ of error coram nobis and habeas corpus relief is unavailable to Garcia as he is not presently in custody as a result of the burglary conviction. |
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