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The People v. Nyaga Kirimi Mbaabu

February 14, 2013

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
NYAGA KIRIMI MBAABU, DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. (Super.Ct.No. FVA900030)

The opinion of the court was delivered by: Ramirez P. J.

CERTIFIED FOR PUBLICATION

OPINION

Reversed.

Defendant and respondent Nyaga Kirimi Mbaabu pled guilty to one count charging criminal threats (Pen. Code,*fn1 § 422) as a misdemeanor pursuant to a plea agreement. He was not specifically admonished that the offense to which he pled guilty constituted an aggravated felony under immigration law when punished by a sentence of 365 days. More than a year after the plea and the United States Supreme Court decision in Padilla v. Kentucky (2010) 599 U.S. ___ [130 S.Ct. 1473, 176 L.Ed.2d 284] (Padilla), defendant made a motion to withdraw his guilty plea on the ground that his attorney's failure to admonish him of the mandatory immigration consequences of the plea constituted ineffective assistance of counsel. The first motion was denied, and defendant filed a new motion to vacate the judgment three months later on the same grounds. The trial court granted the second motion, reinstating the felony charges, and the People appealed.

On appeal, the People argue that (1) the trial court lacked authority to grant defendant's motion, whether deemed a petition for writ of error coram nobis, or a habeas corpus petition, and (2) trial counsel was not ineffective. We reverse.

BACKGROUND

By information filed on March 23, 2009, defendant was charged with two counts of criminal threats, pursuant to section 422. Prior to the preliminary hearing the court had declared a doubt as to defendant's competence (§ 1368), resulting in a suspension of criminal proceedings, and after defendant was arraigned on the information, the court again declared a doubt as to defendant's competence. During the second period of suspended proceedings, new counsel was retained to represent the defendant. Defendant remained committed pursuant to section 1368 until January 8, 2010, when defendant was found to have regained his competence and criminal proceedings were reinstated.

On March 5, 2010, defendant entered into a plea bargain, under which defendant pled guilty to one count of criminal threats as a misdemeanor, in return for dismissal of the remaining charge. The plea agreement also included a stipulated terminal disposition of 365 days in jail with credit for 365 days served. Retained counsel would have counter-offered for a 364-day sentence if he had known that a jail term of 365 days made the conviction an aggravated felony. Retained counsel never discussed the issue of aggravated felony versus non-aggravated felony for purposes of immigration consequences with the defendant.

On March 31, 2010, the United States Supreme Court issued its decision in Padilla, supra, 559 U.S. at page ___ [130 S. Ct. 1473; 176 L. Ed. 2d 284]. That case held that constitutionally competent counsel would have advised defendant that his drug distribution conviction made him subject to automatic deportation.

On November 8, 2011, a second newly retained defense attorney filed a motion to reduce defendant's sentence. The motion was based on the fact that the prior defense attorney failed to advise defendant that a term of 365 days in jail exposed him to deportation (removal).*fn2 Defendant relied on the authority of Padilla, supra, as well as In re Resendiz (2001) 25 Cal.4th 230, in making the motion. At the hearing on the motion on November 16, 2011, counsel amended the motion, making it a motion to withdraw the guilty plea. The trial court denied the motion to withdraw the plea. Defendant did not appeal that order.

On January 13, 2012, the same counsel who filed the prior motion to withdraw the plea filed a motion to vacate the judgment on defendant's behalf. Again, the motion was grounded on the 2010 United States Supreme Court holding of Padilla, supra, 559 U.S. ___ [130 S.Ct. 1473; 176 L.Ed.2d 284]. The motion was heard on February 7, 2012, and was granted, resulting in the reinstatement of the felony charges. The People appealed.

DISCUSSION

The People argue that the trial court erred in granting the non-statutory motion to vacate the judgment because the trial court lacked authority to grant a petition for writ of error coram nobis on the grounds that (a) immigration consequences are not a "fact" that, if known, would have prevented defendant from entering the plea bargain, and (b) ineffective assistance of counsel is not cognizable on coram nobis. In the alternative, the People argue that trial counsel who negotiated the plea bargain was not ineffective, that the holding of Padilla is not ...


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