P. v. Ahmadzai



























Filed 4/11/13 P. v. Ahmadzai CA4/3















>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. HARES AJMAL AHMADZAI, Defendant and Appellant.

G046631 (Super. Ct. No. 93HF0739) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Richard F. Toohey, Judge. Dismissed.

Roger S. Hanson for
Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Hares Ajmal
Ahmadzai appeals the denial of his second motion to vacate judgment pursuant to
Penal Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 1016.5. We dismiss the appeal
because as defendant pled guilty and his motion to vacate the judgment
challenges the validity of his guilty plea, defendant was required to obtain a href="http://www.mcmillanlaw.com/">certificate of probable cause in order
to appeal the denial of his motion. (>People v. Placencia (2011) 194
Cal.App.4th 489, 491-492.)

I

FACTS

Defendant pled guilty to
selling marijuana (Health & Saf. Code, § 11360, subd. (a)) on November 23, 1994. As a result of his guilty plea, the court
placed him on three years of probation and imposed no jail time. On August
18, 1999, the court granted defendant’s section 1203.4 href="http://www.fearnotlaw.com/">motion to withdraw his guilty plea and
dismissed the action upon his successful completion of probation. On October
28, 2010, defendant filed his first motion to set aside his
conviction pursuant to section 1016.5.
The superior court denied that motion on December 10, 2010.
More than a year later, on January
18, 2012, defendant brought a second motion to set aside the
judgment pursuant to section 1016.5. The
superior court denied the motion again, this time in a written decision. Defendant filed a href="http://www.mcmillanlaw.com/">notice of appeal a month later, but he
apparently did not seek or obtain a certificate of probable cause.

II

DISCUSSION

Section 1016.5
requires a judge, prior to acceptance of a guilty plea or plea of nolo
contendere on a misdemeanor or a felony, to advise the defendant as
follows: “If you are not a citizen, you
are hereby advised that conviction of the offense for which you have been
charged may have the consequences of deportation, exclusion from admission to
the United States, or denial of naturalization pursuant to the laws of the
United States.” (§ 1016.5, subd.
(a)(1).) The minute order from the date
of defendant’s guilty plea states the court advised defendant of the possible
immigration consequences. Defendant also
signed a change of plea form and initialed the form next to the same
advisement. He was advised as required
by section 1016.5.

Defendant
argues that because the sale of marijuana requires
deportation as a matter of federal law, the advisement he was provided was
insufficient and violated the command of Padilla
v. Kentucky (2010) 559 U.S.
[130 S.Ct. 1473]. The issue in Padilla, however, was whether defense
counsel “had an obligation to advise [the defendant] that the offense to
which he was pleading guilty would result in his removal from this
country.” (>Id. at p.
[130 S.Ct at p. 1478].) Moreover, in >Chaidez v. >U.S.
(2013) U.S.
[133 S.Ct. 1103], the United States Supreme
Court found Padilla is not to be
given retroactive effect. (See >Teague v. Lane (1989) 489 U.S.
288.) In other words, a person whose
conviction became final prior to the issuance of the decision in >Padilla does not receive the benefit of
the Padilla decision. Defendant’s conviction in this matter was
final more than 15 years before Padilla
was decided.

In his 2012
motion, defendant argued the judgment should be set aside because counsel was
ineffective in failing to advise him of the immigration consequences of his
guilty plea. However, competence of
counsel is not a ground upon which a plea may be withdrawn pursuant to section
1016.5. That section places no
requirement on counsel; it requires the court to advise the defendant. If the basis for setting aside a judgment is
counsel’s failure to properly advise the defendant, the proper vehicle is a
petition for a writ of habeas corpus. (>People v. Shokur (2012) 205 Cal.App.4th
1398, 1404.)

Defendant
contends our Supreme Court’s decision in People
v. Totari (2002) 28 Cal.4th 876 authorizes his appeal in this matter. His reliance on Totari is misplaced. While >Totari held the denial of a motion to
vacate a conviction pursuant to section 1016.5 is an appealable order (>id. at p. 887), the defendant in that
case, unlike defendant here, obtained a certificate of probable cause. (Id.
at p. 880.) Defendant’s failure to
obtain a certificate of probable cause precludes this appeal.

Section 1237.5 requires
a defendant to obtain a certificate of probable cause from the trial court as a
condition of appealing a judgment of conviction obtained by way of a guilty
plea or plea of nolo contendere. “No
appeal shall be taken by the defendant from a judgment of conviction upon a
plea of guilty or nolo contendere, or a revocation of probation following an
admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the
trial court a written statement, executed under oath or penalty of perjury
showing reasonable constitutional, jurisdictional, or other grounds going to
the legality of the proceedings. [¶] (b)
The trial court has executed and filed a certificate of probable cause for such
appeal with the clerk of the court.” (§
1237.5.)

There are exceptions to
the certificate of probable cause requirement, but they do not apply here. For example, after having pled guilty, a
defendant may appeal based on the denial of a motion to suppress pursuant to
section 1538.5 (Cal. Rules of Court, rule 8.304(b)(4)(A)), or if the defendant
raises grounds for appeal that “arose after entry of the plea >and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B),
italics added.)

“‘In determining the
applicability of section 1237.5, the crucial issue is what the defendant is
challenging, not the time or manner in which the challenge is

made.
. . . If a defendant challenges the
validity of his plea by way of a motion to withdraw the plea, he cannot avoid
the requirements of section 1237.5 by labeling the denial of the motion as an
error in a proceeding subsequent to the plea.
[Fn omitted.]’ (>People v. Ribero (1971) 4 Cal.3d 55,
63-64.)” (People v. Arwood (1985) 165 Cal.App.3d 167, 172.)

Although defendant did
not appeal his conviction in 1994, his motion in 2012 to withdraw his guilty
plea pursuant to section 1016.5 challenged the validity of his guilty plea. A motion to vacate the judgment under section
1016.5, even if made years after the conviction, “constitutes an attack on the
validity of the plea, and an appeal from the denial of the motion requires the
defendant to obtain a certificate of probable cause from the trial court in
compliance with section 1237.5.” (>People v. Placencia, >supra, 194 Cal.App.4th at pp.
491-492.) Because defendant did not
obtain a certificate of probable cause, we dismiss the appeal.

III

DISPOSITION

The appeal is dismissed.







MOORE,
J.



WE CONCUR:







RYLAARSDAM,
ACTING P. J.







ARONSON, J.