P. v. Galarza
Filed 6/19/13 P. v. Galarza CA2/4
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
ELIZABETH GALARZA et al.,
Defendants
and Appellants.
B242992
(Los Angeles County
Super. Ct. No. SA024597)
APPEALS
from orders of the Superior Court of
County, Cynthia Rayvis, Judge.
Affirmed.
Michael
S. Cabrera and Kristen M. Hart for Defendants and Appellants.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
>
Defendants
Elizabeth Galarza and Janet Loaiza appeal from the trial court’s denial of
their motions to withdraw their 1996
guilty pleas pursuant to Penal Code section 1016.5
and their petitions for a writ of error
On September 18, 1996, defendants pled
guilty to one count of transporting
marijuana. (Health & Saf. Code,
§ 11360, subd. (a).) They were granted
probation, subject to various terms and conditions, including the service of a
180-day county jail term.
On
January 6, 2012, each
defendant filed a petition for a writ of error coram nobis and a motion to vacate her plea pursuant to section
1016.5 (petition). Each petition
contained identical allegations. First,
defendants claimed the prosecutor failed to advise them of the immigration
consequences of their guilty pleas in accordance with section 1016.5. Second, they contended that their attorneys
rendered ineffective assistance by failing to adequately advise them of the
potential impact of their pleas on their ability to remain in this country.
On
February 17, 2012, the Los
Angeles District Attorney’s Office filed opposition to the petitions. It cited the transcript of defendants’ guilty
pleas and argued they had been adequately advised pursuant to section
1016.5.
On
July 6, 2012, the trial
court, after considering the petitions and the opposition, found no basis for
allowing defendants to withdraw their guilty pleas. It concluded that the prosecutor who had
taken the pleas substantially complied with the requirements of section
1016.5. Regarding counsel’s alleged
failure to advise defendants of the immigration consequences of their pleas,
the court found that defendants had failed to establish prejudice. It determined that defendants could not show
that but for counsel’s error, they would have rejected the plea offer and
proceeded to trial, noting that defendants admitted ownership of the suitcases
in which the marijuana was found. The
court declined to hear defendants’ testimony which was offered to establish
that they were coerced to enter their pleas, concluding that the relevant issue
was whether defendants had been properly advised of the immigration
consequences pursuant to the statute.
The court denied the petitions.
This appeal
followed.
On
appeal, defendants have abandoned their argument that the prosecutor failed to
adequately advise them of the immigration consequences of their pleas pursuant
to section 1016.5. Neither defendant
points to any infirmity with the prosecutor’s section 1016.5 advisement. Instead, in identical briefs, each defendant
argues, “[t]he Defendant does not contest that the Court attempted to advise
her of the immigration consequences of the plea agreement, but the Defendant
argues that Counsel failed to effectively represent the Defendant according to
the holdings of Strickland v. Washington,
466 U.S. 668 (1984), and People v.
Soriano, (1987) 194 Cal.App.3d 1470, and Padilla v. Kentucky (2010), [559] U.S. [356], 130 S.Ct. 1473.†Consequently, defendants implicitly concede
the trial court did not err in denying their statutory
1016.5.
We
turn to defendants’ ineffective assistance claim. Initially, we note they have not set forth
the procedural vehicle by which they are entitled to relief. In the trial court, defendants contended
their attorneys’ failure to properly advise them of the immigration
consequences of their pleas justified the issuance of a writ of error
met the requirements for the issuance of such a writ or how the trial court
erred by denying their petitions. As a
result, we could conclude defendants have forfeited their contention. (See Regents
of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn.
1 [court may deem contention forfeited where party fails to provide legal and
factual support for its claim of error].)
In
any event, defendants’ argument fails on the merits. First, a claim of ineffective assistance of
counsel does not state a case for relief on coram
nobis. (People v. Kim (2009) 45 Cal.4th 1078, 1101.) Second, the legal authority upon which
defendants exclusively rely does not assist them. They cite the United States Supreme Court
decision in Padilla v. Kentucky,
determined that counsel rendered ineffective assistance by failing to advise
the defendant that his plea made him subject to automatic deportation. However, as the Attorney General points out,
earlier this year, the high court determined that Padilla does not apply retroactively. Thus, the case has no effect on a conviction
that was final when the decision was rendered.
(Chaidez v. United States (2013)
___ U.S. ___ [133 S.Ct. 1103, 1105-1107].)
As defendants’ convictions were final in 1996, Padilla does not assist them.
Finally,
defendants urge the trial court abused its discretion by not allowing them to
testify in order to demonstrate that they were coerced into entering their
guilty pleas. In their petitions,
defendants asserted they were entitled to relief on two grounds. They alleged a statutory ground, the
prosecutor’s failure to advise pursuant to section 1016.5, and a nonstatutory
ground, entitlement to a writ of error coram
nobis. They do not explain to this
court why their testimony was relevant to either prong of their petitions. Again, we may deem the contention forfeited
because defendants do not support it by citation to legal authority.
On
the merits, we discern no error in the trial court’s ruling. We conclude that defendants’ testimony would
not have been relevant to their statutory claim pursuant to section 1016.5. The alleged coercion that occurred prior to
the entry of their pleas had no bearing on the question of whether they were
adequately advised of potential immigration consequences, as required by the
statute. With respect to their petitions
for a writ of error coram nobis,
defendants cannot establish they were prejudiced by the court’s evidentiary
ruling, as they fail to demonstrate they were entitled to such relief. Procedurally, their entitlement to a writ was
barred by their failure to exercise due diligence in seeking such relief. Each defendant filed a declaration stating
that after she entered her plea she learned she was subject to deportation as a
result and was, in fact, deported to Mexico after serving a county jail
sentence. There is no doubt that each
defendant was aware that her guilty plea had an adverse effect on her ability
to remain in this country. Nonetheless,
neither attempted to justify waiting to file the petition for 15 years. This alone is fatal to defendants’
claim. (People v. Kim, supra, 45
Cal.4th at pp. 1096-1097.) In addition,
a petitioner must show that any new fact that would have prevented the
rendition of the judgment was not known by him or her. (Id. at
p. 1093.) This, defendants cannot
do. In their declarations, defendants
claimed they were coerced to enter their pleas by the individuals who ordered
them to transport the marijuana that was found.
Clearly, they had the facts that allegedly would have prevented the
rendition of the judgment in hand when they entered their pleas.
For
the first time on appeal, defendants argue their
they had a right to withdraw their plea pursuant to section 1018. As they failed to specifically raise that
ground for admissibility of the evidence below, they are precluded from
complaining on appeal. (
854.) In any event, relief under section
1018 was not available “because that statute only authorizes a trial court to
allow a defendant to withdraw a guilty plea before judgment is entered.†(People
v. Gari (2011) 199 Cal.App.4th 510, 521.)
Although
defendants argue they were entitled to some other unspecified form of
nonstatutory relief, they have “not cited any authority that there is such a
thing as a nonstatutory motion to vacate a judgment to withdraw a plea that is
distinguishable in its requirements or effect from a petition for a writ of
error coram nobis.†(People
v. Gari, supra, 199 Cal.App.4th
at p. 522.) Having already determined
that defendants were not entitled to a writ of error coram nobis and that the failure to receive defendants’ testimony
was not prejudicial to their request for that relief, we need go no further.
DISPOSITION
orders denying defendants’ petitions to vacate their guilty pleas are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
WILLHITE,
Acting P. J.
MANELLA, J.
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