P. v. Arellano-Landa

Filed 7/17/06 P. v. Arellano-Landa CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Jesus Arellano-Landa appeals from the trial court's May 23, 2005 denial of his petition for writ of error coram nobis and his motion to recuse the Santa Clara County Superior Court bench. He is a citizen of Mexico and a legal resident alien of the United States. His wife and two children are American citizens. He is in the custody of the Department of Homeland Security, Immigration and Customs Enforcement Unit (ICE), housed at the Yuba County Jail, awaiting a hearing on removal proceedings aimed at deporting him to Mexico. In essence, he claims he and his family would not now be in this predicament if his attorney had properly researched and advised him of the immigration consequences of his July 11, 1996 negotiated plea to unlawful sexual intercourse with a minor (his wife of 10 years), or if the judge who took his plea and sentenced him had known that he had not been properly advised and was therefore entering an unknowing, unintelligent and involuntary plea.

The Attorney General responds that even if petitioner's allegations are all true, a writ of coram nobis will not lie because his complaint is, at its core, about ineffective assistance of counsel, which is not reviewable on coram nobis. Moreover, even if we were to construe petitioner's application for relief as a petition for writ of habeas corpus, he would not be entitled to relief: a writ of habeas corpus will not lie because, even though he is in custody, he is not in state custody on his 1996 plea. (In re Azurin (2001) 87 Cal.App.4th 20.)

Reluctant to endorse so harsh a result on these facts, we requested supplemental briefing on the immigration consequences of petitioner's plea, the availability of other avenues of relief, and policy reasons for and against judicial expansion of the coram nobis remedy. We now conclude that footnote 7 of In re Azurin, supra, 87 Cal.App.4th at page 27 is too slim a read on which to hang a wholesale revision of coram nobis jurisprudence and that the policy reasons favoring the creation of a remedy are best addressed by the Legislature. We also hold that the denial of petitioner's recusal motion is not an appealable order. Therefore, we affirm.

HISTORICAL AND PROCEDURAL FACTS[1]

Charges, Conviction and Sentence

On May 9, 1995, police were notified by a social worker that a 12-year-old girl, eight to 10 weeks pregnant, had been seen at a Kaiser hospital. The girl identified her boyfriend as 15-year-old Jesus Arrellano-Landa. She had met him at her aunt's house. She said they had engaged in sexual activity two or three times.

The girl's parents were contacted. The mother confirmed that her daughter had been seeing petitioner for several months. The father reported that he had spoken to petitioner and marriage arrangements were underway. Neither parent wanted petitioner to be prosecuted. The aunt was contacted and identified the boyfriend as petitioner, who was in fact 26.

Petitioner was interviewed on May 10, 1995. He reported that he believed the girl was 15 years old and did not know her real age. He was remorseful and stated that he was prepared to marry the girl and assume all financial responsibility for her and their baby.

On June 2, 1995, petitioner was charged with a violation of Penal Code[2] section 288, subdivision (a), lewd act with a child under 14.

On July 18, 1995, petitioner and the girl were married in Mexico. Their son was born on December 23, 1995.

On July 11, 1996, the information was amended to add a second count of unlawful sexual intercourse with a minor, in violation of section 261.5, subdivision (d).[3] Pursuant to a negotiated disposition, on that day (July 11, 1996) petitioner entered a no contest plea to count 2. Count 1 was to be dismissed. Petitioner was informed that he would be placed on three years felony probation on the conditions, inter alia, that he attend parenting classes and report to family support regarding paternity and child support, and that there would be no reduction of the charge to a misdemeanor during the probationary term.

Prior to petitioner's sentencing date of September 9, 1996, petitioner's wife was interviewed by the probation officer via telephone at her home in Hollister, California, where she lived with petitioner, her eight-month-old son, and her sister-in-law. She said â€