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People v. Villa

March 16, 2009


Ct.App. 1/3 A111891. Super. Ct. No. 97879 County: Alameda Judge: Larry J. Goodman.

The opinion of the court was delivered by: Werdegar, J.

Filed 3/16/09 (this opinion should precede the companion case, S153183, also filed 3/16/09)

Avelino Ceja Villa, a lawful resident alien, pleaded guilty to a felony in this state in 1989 and served a three-year period of probation. Now, many years later, he is facing removal from this country by federal immigration authorities, allegedly because of his 1989 conviction. In a companion case, we address whether, and to what extent, persons in similar situations are entitled to have their guilty pleas vacated by a writ of error coram nobis. (People v. Kim (Mar. 16, 2009, S153183) __ Cal.4th ___.) In this case, we hold that because Villa is no longer in California custody as a result of his 1989 conviction, but is instead in federal custody in another state, he is ineligible for relief by way of a writ of habeas corpus. In suggesting otherwise, the Court of Appeal erred.


Villa resides in this country but is not a United States citizen; he is a citizen of Mexico. He applied for lawful permanent resident status in 1987, under a federal amnesty program. In 1989, while his residency application was pending, he pleaded guilty in Alameda County Superior Court to violating Health and Safety Code section 11351, possession of cocaine for sale. As a result, the court placed him on probation for three years. At that time, he was told the Immigration and Naturalization Service (INS)*fn1 had not placed a deportation hold on him, although the prosecutor noted that there "[s]hould be" one. The INS was apparently untroubled by his felony conviction, however, for in 1990 it granted him lawful permanent resident status.

In 2005, Villa applied to the INS to renew his permanent resident status. The INS instead arrested him and served him with a notice to appear for removal proceedings. The only basis for his detention and pending deportation was his 1989 conviction. Villa alleges he is currently in the custody of the INS in a contract detention facility in Alabama.*fn2

After being placed in federal detention, Villa filed a petition for a writ of error coram nobis in the Alameda County Superior Court,*fn3 making three allegations: (1) That when he entered his plea the trial court failed to advise him under Penal Code section 1016.5 of the possibility he could be deported as a result of his conviction; (2) his trial counsel was constitutionally ineffective for misadvising him he would not be deported as a result of his guilty plea; and (3) his rights under the Vienna Convention for Consular Relations and Optional Protocol on Disputes of April 24, 1963 (21 U.S.T. 77, T.I.A.S. No. 6820) (the Vienna Convention) were violated because he was not told of his right to contact the Mexican Consulate. The trial court denied the petition, first finding the court that had taken his plea in 1989 had in fact advised him of its immigration consequences. (The record of the plea proceeding confirms this conclusion.) The trial court also ruled Villa had failed to allege facts demonstrating ineffective assistance of counsel and that the proof of his crime was "extremely strong," presumably rendering any treaty violation harmless. Villa appealed, raising the issues of the alleged ineffectiveness of counsel and the treaty violation.

The Court of Appeal rejected both claims, finding that the alleged treaty violation should have been raised on direct appeal, citing Breard v. Greene (1998) 523 U.S. 371, 375-376. The appellate court further held that Villa's ineffectiveness of counsel claim was not cognizable on coram nobis. It then considered whether it could grant relief by considering Villa's coram nobis petition as a petition for a writ of habeas corpus. (See Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 511 ["The label given a petition, action or other pleading is not determinative; rather, the true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading"].) In a split decision, the appellate court concluded that although Villa was in federal custody in Alabama and not in California state custody, he could challenge the legality of that custody by filing a habeas corpus petition in California. But the appellate court ultimately denied relief because Villa did not allege his federal custody was due solely to his California conviction. The concurring justice agreed that relief on both coram nobis and habeas corpus should be denied, but disagreed that Villa's federal custody entitled him to challenge his long-final state conviction in a state habeas corpus petition.

Villa did not seek review in this court. Although the People prevailed in the appellate court, they petitioned for review, contending the Court of Appeal incorrectly held that a writ of habeas corpus was an available remedy for a litigant, like Villa, who has already served his state sentence and who is presently detained by a governmental entity other than the State of California.

Because the Court of Appeal's decision conflicted with In re Azurin (2001) 87 Cal.App.4th 20, we granted review.


The writ of habeas corpus enjoys an extremely important place in the history of this state and this nation. Often termed the "Great Writ," it "has been justifiably lauded as ' "the safe-guard and the palladium of our liberties" ' " (In re Saunders (1999) 21 Cal.4th 697, 704) and was considered by the founders of this country as the "highest safeguard of liberty"(Smith v. Bennett (1961) 365 U.S. 708, 712). As befits its elevated position in the universe of American law, the availability of the writ of habeas corpus to inquire into an allegedly improper detention is granted express protection in both the United States and California Constitutions. (U.S. Const., art. I, § 9, cl. 2; Cal. Const., art. I, § 11.) In this state, availability of the writ of habeas corpus is implemented by Penal Code section 1473, subdivision (a), which provides: "Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint." (Italics added.)

As the italicized text in Penal Code section 1473, subdivision (a) demonstrates, a necessary prerequisite for issuance of the writ is the custody or restraint of the petitioner by the government. "Thus, it is well settled that the writ of habeas corpus does not afford an all-inclusive remedy available at all times as a matter of right. It is generally regarded as a special proceeding. 'Where one restrained pursuant to legal proceedings seeks release upon habeas corpus, the function of the writ is merely to determine the legality of the detention by an inquiry into the question of jurisdiction and the validity of the process upon its face, and whether anything has transpired since the process was issued to render it invalid.' " (In re Fortenbury (1940) 38 Cal.App.2d 284, 289.)

The key prerequisite to gaining relief on habeas corpus is a petitioner's custody. Thus, an individual in custody for a crime (or alleged crime) may - within limits - challenge the legality of that detention on habeas corpus. A petitioner in custody can also challenge the conditions of confinement, a challenge related not to the petitioner's underlying conviction but instead to his or her actual confinement. (In re Allison (1967) 66 Cal.2d 282, 285 ["The writ of habeas corpus may ...

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