Appeal from an order of the Superior Court of Orange County, Craig E. Robinson, Judge. Affirmed. (Super. Ct. No. 05HF0231)
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
Pursuant to his guilty plea, defendant Yossuf Shokur was convicted in 2005 of possessing marijuana for sale (Health & Saf. Code, § 11359). The change of plea form he initialed, signed, and declared he read advised defendant of the immigration consequences of conviction pursuant to Penal Code section 1016.5. The court also advised defendant of the immigration consequences of a guilty plea, a fact defendant does not contest. Seven years later, after defendant successfully completed probation; after he successfully had his guilty plea withdrawn, a not guilty plea entered, and the case dismissed pursuant to Penal Code section 1203.4; and after he subsequently pled guilty to two counts of robbery (Pen. Code, § 211) in another Orange County case, defendant brought a what he styled a non-statutory motion to set aside his conviction in this matter based on counsel's alleged ineffectiveness for not explaining the immigration consequences of his guilty plea.
Defendant recognizes he does not qualify for relief under habeas corpus or error coram nobis. He maintains a non-statutory motion is required by the United States Supreme Court's opinion in Padilla v. Kentucky (2010) 559 U.S. [130 S.Ct. 1473], a position he contends is supported by California cases. We hold neither Padilla v. Kentucky, nor the cited California cases require a non-statutory motion safety net to provide a remedy when other remedies through which relief might have been obtained are no longer available.
Defendant and his family came to the United States from Afghanistan when defendant was about 10 years old. He was eventually granted refugee status. His father worked in the Ministry of Agriculture in the Najibullah government and his mother was an elementary school teacher in Afghanistan.
In early 2005, defendant was charged in a felony complaint with possession of marijuana for sale (Health & Saf. Code, § 11359), possession of a billy club (Pen. Code, § 12020, subd. (a)(1)), and driving on a suspended license (Veh. Code, § 14601.1, subd. (a), a misdemeanor). On February 22, 2005, defendant appeared in court with counsel, a deputy public defender. Pursuant to a plea bargain, he entered guilty pleas to possession of marijuana for sale and driving on a suspended license. The felony weapon charge was then dismissed. Defendant was placed on three years of formal probation and ordered to spent 30 days in county jail in addition to other terms and conditions of probation.
The change of plea form contained the following advisement concerning the immigration consequences of a conviction in that case: "I understand that if I am not a citizen of the United States the conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Defendant initialed the advisement and under penalty of perjury signed a declaration stating he understood the advisement and discussed it with his attorney.*fn1 During the change of plea colloquy, the court specifically asked defendant if he understood conviction "will have the consequence of deportation, exclusion from admission, and denial of naturalization pursuant to the laws of the United States." Defendant said he understood.
On December 18, 2008, after defendant successfully completed probation, the superior court granted his Penal Code section 1203.4 petition, set aside his guilty pleas, entered not guilty pleas, and dismissed the charges. In March 2010, defendant pled guilty to two counts of robbery (Pen. Code, § 211) and was ordered to serve one year in the county jail as a condition of probation.
In March 2011, defendant was placed in immigration removal proceedings. (See gen., 8 U.S.C. §§ 1227, 1228, 1229a.) On July 12, 2011, defendant filed what he titled a non-statutory motion to vacate his conviction for possession of marijuana for sale. He alleged his deputy public defender did not ask about his immigration status and did not advise him the conviction "results in absolute removal." The district attorney filed an opposition to defendant's motion. The prosecution argued defendant did not establish he was misadvised, failed to establish either prong of an ineffective assistance of counsel claim (Strickland v. Washington (1984) 466 U.S. 668), and did not make the showing required for coram nobis relief. The prosecutor also pointed out that a claim of ineffective assistance of counsel cannot serve as the basis for coram nobis relief. (People v. Kim (2009) 45 Cal.4th 1078, 1104.) The prosecutor attached to the opposition as an exhibit a copy of defendant's change of plea form in the matter, something defendant had omitted from his motion.
The superior court denied defendant's motion in a written decision. Relying on People v. Kim, supra, 45 Cal.4th 1078, the court held a non-statutory motion is not a proper vehicle to raise a postjudgment claim of ineffective assistance of counsel and concluded the court lacked jurisdiction to entertain defendant's claim. The court found jurisdiction to consider defendant's issue would exist under this state's habeas corpus jurisprudence or under Penal Code section 1018, but requirements of each were missing: defendant was no longer in actual or constructive custody, given the fact that his probationary term ...