IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
May 23, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSE CASTRELLON, DEFENDANT AND APPELLANT.
(Super. Ct. No. TF035608A)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Castrellon
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On July 1, 2009, defendant left his vehicle and placed four baggies containing a total of 8.4 grams of methamphetamine in a garbage can.
Defendant pled no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378).*fn1 Pursuant to the plea agreement, the court suspended imposition of sentence, placed defendant on five years' formal probation, and ordered him to serve 180 days in jail.
Four months after being placed on probation, defendant moved to withdraw the plea in case No. TF035608A, and petitioned for a writ of error coram nobis, alleging he was not properly advised of the immigration consequences of his plea. The trial court found defendant's motion was timely under Penal Code section 1018*fn2 as it was made within six months of his being placed on probation. It then denied the motion as defendant had not established good cause to withdraw his plea. The court concluded coram nobis was an inappropriate mechanism to raise defendant's claim of ineffective assistance of counsel, deemed the writ of error coram nobis to be a petition for habeas corpus, issued an order to show cause, and ordered defendant to file a petition for writ of habeas corpus.
Defendant subsequently filed two memorandums in support of his motion to withdraw the plea and his habeas petition. Following an evidentiary hearing, the court denied the motion to withdraw the plea and the habeas petition.
Defendant, who has obtained a certificate of probable cause, appeals the denial of his motion to withdraw the plea and petition for habeas corpus. He contends his plea should be vacated or habeas should have been granted because counsel was ineffective by failing to advise him of the immigration consequences of his plea. We shall affirm.
Defendant is a Mexican citizen who has been a legal permanent resident of the United States since 1989. He is the father of two United States citizens, his mother is a United States citizen, and his father is a legal permanent resident.
During the plea colloquy, the court told defendant: "If you're not a citizen of the United States, this plea will result in your deportation, denial of naturalization, or denial of re-entry into the United States. [¶] Do you understand that?" Defendant answered, "Yes, I do."
As a result of defendant's convictions, the Department of Homeland Security (DHS) initiated proceedings seeking his deportation from the United States. DHS alleged defendant was subject to deportation because his conviction for possession of methamphetamine for sale was an aggravated felony pursuant to section 101(a)(43)(B) of the Immigration and Nationality Act (Act) (8 U.S.C. § 1101(a)(43)(B), and the corporal injury to a spouse or cohabitant conviction was a domestic violence offense pursuant to section 237(a)(2)(E)(i) of the Act (8 U.S.C. § 1227(a)(2)(E)(i)).
Defendant asserts his plea should be vacated as he did not know that pleading no contest to possession of methamphetamine effectively guaranteed his deportation. We disagree.
In his initial motion to vacate the plea, defendant declared that his trial counsel, Anna Teruel, never asked him about his immigration status and they never discussed the immigration consequences of his plea. He did not fully understand the court's admonishment that the plea could result in his deportation. Teruel did not want him to accept the People's plea offer because she wanted to explore the sufficiency of evidence to convict him. Defendant claimed Teruel never discussed alternative plea options which would not lead to his deportation. Had he known he would have lost residency as a result of the plea, defendant would not have entered the plea.
Teruel testified at the evidentiary hearing. She advised defendant not to take the plea because she thought he had a good case, and wanted to test the People's case at the preliminary hearing. Teruel addressed the possible immigration consequences of the plea with defendant. She was aware that defendant's offense, possession of methamphetamine for sale, was on the list of crimes which call for mandatory deportation. While she would have asked defendant if he was an immigrant, Teruel did not remember his response. Teruel advised defendant "he can be deported" if he accepted the plea. Her notes reflected that she gave defendant her standard immigration advisement.
Brenda Chambliss represented defendant in his immigration case. She spoke with Teruel, who never indicated having advised defendant he would be deported. Teruel did not mention undertaking any further inquiry into the matter other than checking to see if defendant was subject to an immigration hold. She did not recall the specific date of the conversation, the exact words Teruel used, or whether she had asked Teruel if she told defendant he would be deported.
Teruel testified on rebuttal that she took notes of her conversation with Chambliss. She specifically told Chambliss about the advisements she gives, and that her notes indicated she told defendant about the immigration consequences of his plea.
At the initial hearing on the motion to vacate the plea, the court found defendant's declaration was self-serving, and he had not established clear and convincing evidence of good cause to withdraw his plea. Later, in a written order denying the habeas petition, the court found that Teruel's representation was not ineffective as she correctly advised defendant regarding the immigration consequences of his plea. In addition, the court noted it had advised defendant that his plea would result in his deportation.
"A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. [Citation.] 'Good cause' means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is 'within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.' [Citation.]" (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) "[A] reviewing court must adopt the trial court's factual findings [on a motion to withdraw a plea] if substantial evidence supports them. [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Defendant's appeal from the denial of his habeas petition is not cognizable. The denial of a habeas petition is not an appealable order, and we will not review the court's denial of defendant's habeas petition. (In re Hochberg (1970) 2 Cal.3d 870, 876.)
We can address the denial of defendant's motion to withdraw his no contest plea. "An order before judgment denying a motion to withdraw a guilty plea is not appealable, but can be reviewed on an appeal from the judgment." (People v. Ribero (1971) 4 Cal.3d 55, 62.) A trial court shall allow defendant to withdraw his plea if good cause is shown "at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended[.]" (§ 1018.) Since defendant's motion was made within six months of his being placed on probation, we shall address his contentions.
Ineffective assistance of counsel is good cause to set aside a plea. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) "Before deciding whether to plead guilty, a defendant is entitled to 'the effective assistance of competent counsel.' [Citations.]" (Padilla v. Kentucky (2010) 559 U.S. ____,
[176 L.Ed.2d 284, 293] (Padilla).) In order to prevail, defendant must show: (1) counsel's performance was deficient, in that it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced defendant, i.e., there was a reasonable probability the result would have been better for defendant absent the defect. (Strickland v. Washington (1984) 466 U.S. 668, 690, 694 [80 L.Ed.2d 674, 695, 698].)
In Padilla, the Supreme Court found that where the deportation consequence of a guilty plea is truly clear, defense counsel has a duty to correctly advise the defendant of those consequences. (Padilla, supra, 559 U.S. at p. ____ [176 L.Ed.2d at p. 296].) Possession of methamphetamine for sale is subject to almost mandatory deportation. (See 8 U.S.C. § 1227(a)(2)(B)(i) ["Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable"]; Padilla, supra, 559 U.S. at p. ____ [176 L.Ed.2d at p. 292] [if a noncitizen is convicted of removable offense "his removal is practically inevitable"].)
We defer to the trial court's finding that defendant's declarations regarding his understanding of the immigration consequences of his plea were self serving. (People v. Boyer (2006) 38 Cal.4th 412, 444.) The trial court also found trial counsel correctly advised defendant on the immigration consequences of his plea, as Teruel understood defendant's offense would lead to his deportation, she routinely advised her clients of the immigration consequences of his plea, and advised defendant that his plea can result in his deportation. Defendant disputes this finding.
Defendant claims Teruel's advice was too equivocal, as it did not inform defendant deportation was the inevitable result of his plea. Even if Teruel's advice understated the threat of deportation, defendant has failed to establish prejudice. The trial court's admonishment was explicit and accurate--defendant "would" be deported as a result of his plea. Since defendant was given accurate advice of the immigration consequences of his plea, he was not prejudiced by trial counsel's advice.
The trial court's admonishment and trial counsel's actions distinguish the cases cited by defendant. (See Padilla, supra, 559 U.S. at p. ____ [176 L.Ed.2d at p. 290 [trial counsel told defendant not to worry about his immigration status since he had been in the country so long]; In re Resendiz (2001) 25 Cal.4th 230, 251 [counsel told defendant "if he pled guilty, he would have 'no problems with immigration' except that he would not be able to become a United States citizen"], disapproved on other grounds in Padilla; People v. Barocio (1989) 216 Cal.App.3d 99, 102 [counsel failed to advise defendant of his right to request a recommendation against deportation from the sentencing court]; People v. Soriano (1987) 194 Cal.App.3d 1470, 1480-1481 [defendant sentenced to a year in jail, counsel was unaware that imposition of sentence suspended and imposition of a sentence of one day less than a year would deport him from the class of deportable convicts and would have negotiated the case differently had she known].)
The remaining cases cited by defendant are not binding, as they are from other jurisdictions. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3; People v. Mays (2009) 174 Cal.App.4th 156, 167.) They are also inapposite. In United States v. Kwan (9th Cir. 2005) 407 F.3d 1005, trial counsel told defendant "there was no serious possibility that his conviction would cause him to be deported." (Id. at p. 1008.) In State v. Paredez (N.M. 2004) 136 N.M. 533, 535 [101 P.3d 799, 801] the trial court and defense counsel told the defendant his plea "could" affect his immigration status. Gonzales v. State (Or. App. 2004) 191 Or.App.587 [83 P.3d 921], was reversed by the Oregon Supreme Court. (Gonzalez v. State (Or. 2006) 340 Ore. 452, 454 [134 P.3d 955].)
Defendant has not established good cause to withdraw his plea. He was told that he would be deported as a result of his plea and chose to enter the plea against counsel's recommendation. He is bound by his choice.
The judgment is affirmed.
We concur: HULL , J. ROBIE , J.