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The People v. Jose Castrellon

May 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE CASTRELLON, DEFENDANT AND APPELLANT.



(Super. Ct. No. TF035608A)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Castrellon

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DISCUSSION

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. ยง 1101(a)(43)(B), and the corporal injury to a spouse or cohabitant ...


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