P. v. Dang

Filed 1/29/07 P. v. Dang CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Tai Anh Dang, a lawful permanent resident of the United States, appeals from an August 24, 2005 order denying his motion to vacate his December 1996 plea of no contest to committing a lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (a)).[1] Defendant contends, as he did below, that he received ineffective assistance of counsel because his attorney misadvised him of the immigration consequences of his plea and failed to attempt to obtain an alternative plea agreement that would have avoided the actual consequences. Defendant also contends that he may appeal from the denial of his post-judgment motion to vacate his plea which raised his ineffective-assistance-of-counsel claim. We disagree with this latter claim, and therefore dismiss the appeal.

BACKGROUND

On February 23, 1996, a nine-year-old girl told San Jose police officers that defendant approached her and her friend in the parking area of their apartment complex. Defendant was carrying a clipboard and asked for help. He pointed to a piece of paper he was holding, he did not appear to speak English very well, and he appeared to be looking for an apartment in the complex. The victim and her friend led defendant to another building in the complex. As they were walking upstairs, defendant reached over and rubbed the victims upper back. She pulled away and told him to stop. However, he did it again. She again pulled away and told him to stop. Defendant then rubbed the victim on her chest. The victim said, Please dont touch me, and then ran away with her friend. The victims friend reported the incident to her mother, who contacted the police. Witnesses were able to describe defendant, the car he left the complex in, and the cars license plate number.

Defendant was charged by felony complaint filed May 28, 1996, with lewd conduct on a child under 14. ( 288, subd. (a).) On December 6, 1996, defendant appeared with counsel and a Vietnamese interpreter, waived preliminary hearing, and entered a negotiated plea of no contest to the charge on condition that he be sentenced to no more than three years in state prison. Before accepting defendants plea the trial court advised defendant, Sir, if youre not a United States citizen, I must tell you that a conviction of this charge could well result in your being deported, excluded from the United States and denied naturalization. Do you understand that? Defendant responded, Yes. When accepting defendants plea the court stated in part: I will accept your no contest plea. I will find that you are guilty based on that plea. . . . I further find that you fully understand the consequences of your plea. Defendants counsel told the court that he concurred with defendants pleas and waivers.

The first page of the probation officers report stated that defendant was born in May 1965 in Saigon, Viet Nam. The report also stated that defendant completed high school in Viet Nam in 1983, that he has been a resident of the United States since 1990, and that he had no prior convictions. Defendant admitted to the probation officer that he touched the victim on the chest while she was assisting him in locating an apartment so that he could deliver a telephone book, but he was unable to explain how it occurred and maintained that he was not sexually stimulated. The probation officer recommended that defendant be evaluated by a psychologist pursuant to section 288.1.

The psychologists report stated that in December 1990, defendant was sponsored by a brother and a sister to come to the United States. Defendant had difficulty conversing in English with the psychologist, so he communicated with the psychologist through an interpreter. The psychologist concluded that defendant was amenable to treatment and did not have a predisposition to commit further sexual offenses.

At defendants sentencing on March 3, 19 97, the court placed defendant on three years formal probation with various terms and conditions, including that he serve six months in county jail. Defendant subsequently completed his county jail term and his probation.

Immigration authorities commenced deportation proceedings against defendant on or about December 2, 2003. He was placed, at least temporarily, at a federal detention center in Arizona. On June 29, 2004, defendant filed a petition for writ of habeas corpus in the trial court, contending that he had received inadequate advisement of the immigration consequences of his plea by counsel. Defendant stated in his supporting declaration that [w]ith respect to any possible immigration consequences of a no contest plea, [counsel] advised me that, since I had been living in the United States for more than five years and because I was not Hispanic, I would not be deported to Vietnam. I accepted his advice and entered a no contest plea. I do not recall being advised by the judge of any immigration consequences. If I had known at the time I entered a no contest plea in this case that I could be deported, I would not have pleaded no contest.

The trial court filed its order denying defendants petition on July 13, 2004. The order states in part: [H]abeas corpus relief is not available to Petitioner because it appears that all custody/probation/parole time has been served. In the case of In re Azurin (2001) 87 Cal.App.4th 20, the defendant sought to withdraw his guilty plea several years after he had served his sentence and completed parole. The Court of Appeal held there was no habeas corpus jurisdiction because there was no state custody. Even though Azurin was in the custody of the INS, (as petitioner in this case is also,) such federal custody or the threat of federal custody, is not state custody for the habeas corpus proceedings. [] Although Petitioner argues that this Court has jurisdiction he has presented no such authority. It is only in those situations when the petitioner/defendant is in actual or constructive custody that a court has jurisdiction to entertain claims such as is currently presented.

On July 27, 2005, defendant filed a motion to vacate (coram nobis petition) in the trial court, contending that, at the time of his plea and sentencing, neither the parties nor the court knew of the mandatory deportation consequences of defendants plea. Defendant argued that no one contemplated that a plea for this offense would have the disastrous consequences that have now become apparent. The defendant was unaware of these consequences. The court and defense counsel were unaware of these consequences. It is assumed that the sentencing court did not intend that this conviction would force the permanent banishment of the defendant away from his home, family, and life here in the United States. Defendant also contended that a plea to a felony violation of section 243.4, subdivision (a), for sexual battery, with the same six-month sentence he received, would not have been a deportable offense.

In opposition to defendants motion, the People contended that defendant was advised by the court of the immigration consequences of his plea, that the motion was a duplication of issues raised in defendants petition for writ of habeas corpus alleging ineffective assistance of counsel, and that coram nobis will not issue to vacate a plea solely on the ground that it was induced by misstatements of counsel. The People requested that defendants motion to vacate judgment be denied.

On August 24, 2005, the trial court filed its order denying defendants motion. Although stating a prima facie case of ineffective assistance of counsel, . . . Petitioners presentation of his claims by way of coram nobis is inappropriate. Attempts by petitioners to argue their personal ignorance of the collateral but applicable laws, although caused by their counsels derelictions, [to] make coram nobis applicable, have been rejected. Prior to the time of the 1016.5 immigration advisement it was quite possible, . . . that it did not occur to anybody to consider that potential immigration consequences might flow from a particular conviction. However, now that defendants are given the three PC 1016.5 advisements, they (and their attorneys) are on notice that drastic immigration consequences could follow a plea. If they are unaware of the specifics then it is either their own fault for not asking or a result of ineffective assistance of counsel for not knowing. In either case, the first and third necessary element of Coram Nobis, (that there is no fault or negligence by the defense and that the information could not have been discovered with due diligence) can no longer be shown. [] Habeas corpus is the only appropriate vehicle by which to present Petitioners claims. . . . However as explained in this Courts previous order, pursuant to In re Azurin [, supra,] 87 Cal.App.4th 20 this Court no longer has habeas corpus jurisdiction in this case. [] For the above reasons the petition is hereby denied on procedural grounds. This court does not believe it has the discretion or ability to reach the merits of the claim by any procedural vehicle.

Defendants notice of appeal, filed October 19, 2005, states that the appeal was taken from the order dated August 22, 2005, denying his petition for writ of error coram nobis, pursuant to Penal Code 1237(b).

DISCUSSION

The proper procedure for withdrawal of a plea after judgment is a motion to set aside the judgment and to permit a withdrawal of the plea. Such a motion is in the nature of, and is subject to the rules governing, an application for a writ of coram nobis. [Citation.] (People v. Thomas (1955) 45 Cal.2d 433, 439 (Thomas).) The writ of coram nobis is, however, of narrow scope. (People v. Adamson (1949) 34 Cal.2d 320, 326.) The writ lies only to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court. [Citations.] (Id. at pp. 326-327; Thomas, supra, 45 Cal.2d at p. 439; People v.Gallardo (2000) 77 Cal.App.4th 971, 987.) Thus, the writ will lie to vacate a guilty plea where the defendants legal sanity at the time of the commission of the crimes was never adjudicated (People v. Welch (1964) 61 Cal.2d 786), or where the defendant was induced to plead in reliance on unkept promises of probation by public officials. (People v. Wadkins (1965) 63 Cal.2d 110.)

Coram nobis does not lie to correct legal error. (People v. Ibanez (1999) 76 Cal.App.4th 537, 547 (Ibanez).) The only exception to this rule occurs where the error is jurisdictional, such as a complete failure of subject matter jurisdiction. (Ibid.; see also, Andrews v. Superior Court (1946) 29 Cal.2d 208, 213-214.)

Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel [citation] or where the claim is that the defendant did not receive effective assistance from counsel [citations]. Where coram nobis raises only such grounds, an appeal from the superior courts ruling may be dismissed as frivolous. [Citations.] (Gallardo, supra, 77 Cal.App.4th at pp. 982-983.)

A trial courts denial of a coram nobis petition is an appealable order. (People v. Dubon (2001) 90 Cal.App.4th 944, 950; People v. Totari (2002) 28 Cal.4th 876, 887 (Totari).) In an appeal from a trial courts denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal. [Citations.] (Totari, supra, 28 Cal.4th at p. 885, fn. 4.) In this case, the trial court did not reach the merits of petitioners claim, but denied the petition on procedural grounds, finding that defendants motion to vacate, while in some ways similar, was not an application for a writ of coram nobis. Defendant did not allege jurisdictional error. He did not allege that the trial court failed to give the statutory advisements.[2] Nor did he ask the trial court to evaluate newly discovered evidence which, while undermining the judgment, did not go to the merits of the issues of fact determined at trial. Instead, defendant claimed that his plea was induced by misstatements of counsel as to the immigration consequences of the plea, and that he did not receive effective assistance as counsel did not attempt to obtain an alternative plea agreement that would have avoided the actual immigration consequences.

A claim of ineffective assistance of counsel in pre-guilty plea advice is not an appropriate basis for relief by writ of coram nobis. [Citations.] The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by petition for writ of habeas corpus. (People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 (Soriano).) Had the court not given section 1016.5 advice, or had [defendant] raised a factual challenge to the evidence that he had received section 1016.5 advice, [defendant] might legitimately claim now that the proceedings below went beyond ineffective counsel claims and could be characterized as coram nobis. However, in the face of the section 1016.5 warning, receipt of which was unchallenged, the only arrow in [defendants] quiver below was ineffective counsel and his only remedy was habeas corpus. [Citation.] (People v.Gallardo, supra, 77 Cal.App.4th 988, fn. 9.) Defendant previously filed a petition for writ of habeas corpus in the trial court, but it was properly denied because defendant was no longer in the actual or constructive custody of the state. (In re Azurin, supra, 87 Cal.App.4th at pp. 24-26.)

Defendant contends that, when read together, section 1016.5 and People v. Fosselman (1983) 33 Cal.3d 572 (Fosselman) provide for the motion to vacate the judgment brought here. Section 1016.5, subdivision (b), states that the trial court shall grant a motion to vacate a judgment and permit a defendant to withdraw a guilty plea if the defendant shows that the trial court failed to give the statutory advisement.[3] The statute gives no deadline for such a motion. The court in Fosselman held that a trial court may consider and determine a claim of ineffective assistance of trial counsel presented in a motion for new trial. This was so, the court held, even though section 1181, which enumerates the grounds for ordering a new trial and expressly limits the grant of new trial to those enumerated grounds, did not include ineffective assistance of counsel as an enumerated ground. (Fosselman, supra, 33 Cal.3d at pp. 582-583.) However, a motion for new trial must be made and determined before judgment, [or] the making of an order granting probation. ( 1182.) As we stated above, once judgment is entered a defendant must raise a claim of ineffective assistance of counsel in a direct appeal or by petition for writ of habeas corpus. (Soriano, supra, 194 Cal.App.3d at p. 1477.) Even when read together, section 1016.5 and Fosselman do not support defendants claim that a trial court must consider a claim of ineffective assistance of trial counsel brought in a non-statutory post-judgment motion to vacate the judgment.

Defendant also contends that People v. Wiedersperg (1975) 44 Cal.App.3d 550 (Wiedersperg) supports his claim that the remedy of coram nobis is available when neither the trial court, counsel, nor defendant were aware of the dire immigration consequences of the plea when it was entered. In Wiedersperg, the petitioner was deported and brought a writ of error coram nobis to vacate his expunged conviction upon a slow plea for marijuana possession. His attorney declared that he did not know and had no reason to know that the petitioner was born in Austria and had entered the United States illegally as a child, and that if he had known, he would have negotiated a different disposition that involved a guilty plea to a non-deportable offense. The attorney also declared that based on the courts lenient treatment of the petitioner, he believed that the court would not have rendered the same judgment if the court had known the consequences to the petitioner. (Id. at pp. 552-553.) Lastly, both the petitioner and his attorney disclaimed knowledge of the possibility of subsequent deportation until deportation hearings were begun. (Id. at pp. 554-555.) On appeal from denial of the writ petition, the Court of Appeal reversed the trial courts order, holding that the petition had stated facts, which, if proved, could support the relief requested. (Ibid.)

Subsequent cases have distinguished Wiedersperg, limiting its application to situations where the fact of the petitioners illegal immigration status, rather than the immigration consequences of that status, are unknown to the petitioner and his attorney. (See, e.g., Ibanez, supra, 76 Cal.App.4th at pp. 547.) In this case, while defendant, the court, and his trial attorney might have been unaware of the actual immigration consequences of defendants plea, they were all aware of defendants immigrant status. The probation report stated that defendant was born in Viet Nam and that he came to this country as an adult, and defendants and his trial attorneys declarations indicate that they discussed defendants immigration status prior to entry of his plea. In addition, Wiedersperg was decided in 1975, prior to the enactment of section 1016.5, and the trial court in this case gave defendant the statutory admonitions regarding the immigration consequences of his plea required by section 1016.5. Wiedersperg does not support defendants claim.

A direct appeal by a defendant may be taken from any order made after judgment, affecting the substantial rights of the party. ( 1237, subd. (b).) A ruling denying a motion to vacate judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. [Citation.] In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limit[] . . . within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.] (People v.Gallardo, supra, 77 Cal.App.4th at pp. 980-981, fn. omitted.)

This is not a direct appeal from the judgment of conviction. Instead, the appeal was taken from the order denying defendants motion to vacate the judgment and/or petition for writ of error coram nobis. To allow defendant to appeal now would allow him to have two appeals from the same judgment. As defendant conceded, the trial court properly gave him the section 1016.5 admonition, and his request for relief is based on his claim that trial counsel misadvised him of the actual immigration consequences of his plea. Claims based on ineffective assistance of counsel cannot be reviewed by way of motion to vacate the judgment or petition for writ of error coram nobis. Therefore, the trial court did not err in denying defendants motion/petition on procedural grounds. As defendant has not made a prima facie showing of merit, we may summarily dismiss the appeal. (Totari, 28 Cal.4th at p. 885, fn. 4; People v.Gallardo, supra, 77 Cal.App.4th at p. 983.)

DISPOSITION

The appeal is dismissed. _______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MCADAMS, J.

_________________________

DUFFY, J.

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[1]All further statutory references are to the Penal Code.

[2]Section 1016.5, subd. (b), specifically providesthat, when a trial court fails to give the statutory advisement and the defendant shows that the conviction has actual immigration consequences, the court shall upon the defendants motion vacate the judgment and permit the defendant to withdraw the plea . . . . Defendant has admitted that the court gave the statutory advisements, however.

[3]Our Supreme Court has ruled that the advisements mandated by section 1016.5 are procedural safeguards and not essential element[s] of a fair trial or due process [citation] so as to insulate any error in providing them from analysis under [California Constitution,] article VI, section 13, as error as to any manner of procedure. (People v. Superior Court (Zamudio) 23 Cal.4th 183, 197.)