P. v. Martinez

Filed 7/3/07 P. v. Martinez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Horan, Judge. Affirmed.

________

Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________

On July 7, 1999, before a preliminary hearing and as part of a plea bargain that he would not receive more than a 6-year low term sentence, Ismael Martinez pleaded guilty to continuous sexual abuse of his daughter over a three-year period, the only crime charged against him.^[1] (Pen. Code, 288.5, subd. (a); all further section references are to the Pen. Code.) On August 19, 1999, pursuant to a favorable probation report and over the prosecutors objection, the court suspended imposition of sentence and placed Martinez on probation for five years on condition, among others, that he serve one year in jail; register as a sex offender; report to his probation officer upon his release from custody; after any departure from the country, provide documentation to his probation officer proving that he had re-entered the country legally; pay several fines; and not reside in the same household as his minor children.

On May 15, 2000, Martinez, represented by different counsel, filed a motion to vacate his plea pursuant to section 1016.5.^[2] Martinez alleged that his trial counsel was inadequate because (1) counsel did not discuss with him the immigration consequences of his plea; (2) he was about to be deported as a result of his guilty plea; and (3) he would not have pleaded guilty had he known that doing so would result in his deportation. At the June 14, 2000 hearing on the motion to vacate, Martinez counsel argued that competent counsel, knowing that a plea to section 288.5 would result in deportation, would have negotiated a plea to a lesser charge, perhaps involving more custody time, to avoid the adverse immigration consequences. The prosecutor, who had filed the case and negotiated the original plea bargain, responded that she would not have considered such a bargain, and had argued for a prison rather than a probationary sentence. The court denied the motion. Martinez did not appeal or otherwise seek review of the order denying his motion to vacate his plea. On July 20, 2000, pursuant to a probation report filed the same day, the court revoked Martinez probation and issued a warrant for his arrest because he had failed to pay any of his fines before being deported.

Nearly six years later, on May 9, 2006, Martinez appeared in custody having been arrested on the outstanding warrant. A June 2, 2006 probation report disclosed that Martinez re-entered the country illegally in February 2005, resumed working and living with his family, and neither registered as a sex offender, reported to his probation officer, nor paid his fines because he thought he would be arrested and deported if he did so. The probation officer recommended that the court find Martinez in violation of the terms of his probation and impose a prison sentence.

On June 19, 2006, Martinez, represented by a third attorney, filed a petition for writ of error coram nobis. Like his 2000 motion to vacate his guilty plea, Martinez petition, supported by his declaration, alleged inadequacy of his original trial counsel in failing to advise him of the immigration consequences of his plea, specifically that his guilty plea to violating section 288.5 mandated deportation and precluded legal readmission or eventual naturalization, and that he would not have pleaded guilty had he known of the immigration consequences. Martinez third attorney declared that he had spoken to trial counsel who stated he had no memory of Martinez case.

On August 14, 2006, the court denied Martinez petition for three reasons: (1) the petition was untimely because it raised the same grounds as the 2000 motion to vacate, the denial of which Martinez failed to appeal; (2) if construed as a habeas corpus petition, the petition was untimely for the same reason; and (3) to the extent the petition alleged inadequacy of trial counsel, that issue cannot be raised in a coram nobis writ petition. Thereafter, consistent with the original sentence bargain, the court and prosecution agreed that if Martinez admitted violating the terms of his probation, the maximum sentence the court would impose would be the 6-year low term. Martinez then admitted violating the terms of his probation. The court considered statements by the victim and one of her sisters that the family regularly had visited Martinez in Mexico after his deportation and before his return to the country, and testimony and a report by a psychologist that Martinez was at low risk to re-offend. The court then denied Martinez request to be reinstated on probation and imposed the 6-year low term because of his earlier failure to comply with any of his probationary terms. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)^[3]

Martinez timely appealed and we appointed counsel to represent him on this appeal.^[4] After reviewing the record, counsel filed a brief raising no issues and asking us independently to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On April 6, 2007, we advised Martinez that he had 30 days within which to submit any issues he wished us to consider. To date we have received no response.

We have examined the entire record and are satisfied that Martinez attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.^*

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^[1] The probation report disclosed that Martinez fondled his daughters breasts while she slept approximately 50 times from 1995-1998 when she was 12-15 years old. The daughter eventually told her mother, and Martinez admitted the acts when his wife confronted him. Although his daughter reported no other inappropriate conduct, Martinez, during a Spring 1999 police interview, admitted that on approximately 10 of these occasions he also digitally penetrated his daughters vagina.

The probation report also disclosed that Martinez was a legal resident alien who had lived in the United States since his arrival at the age of 14. During the plea, Martinez acknowledged that he understood the courts advisement that, [i]f you are not a citizen of this country, your conviction today could have the effect of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

^[2] As relevant, section 1016.5, subdivisions (a) and (b), state: (a) Prior to acceptance of a plea of guilty . . . to any offense punishable as a crime under state law, . . . the court shall administer the following advisement on the record to the defendant: [] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. [] (b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. . . . If the warning is not given, the court shall permit the defendant to withdraw his plea if the defendant shows that conviction of the particular crime may have immigration consequences. The record must show that the advisement was given; if it does not, a reviewing court presumes that it was not. ( 1016.5, subd. (b).)

Martinez neither disputed that he received and acknowledged a proper section 1016.5 advisement, nor claimed that the court denied a request for time to consider it. Receipt of a proper advisement, however, does not per se defeat a claim that a defendants attorney provided inadequate representation regarding the immigration consequences of his plea, which must be examined based on the particular facts of each case. (In re Resendiz (2001) 25 Cal.4th 230, 235, 240-248.) Martinez did not allege that trial counsel affirmatively misadvised him about the immigration consequences of his plea; he alleged only that counsel failed to discuss those consequences. (Ibid.; People v. Bautista (2004) 115 Cal.App.4th 229, 237-242; People v. Soriano (1987) 194 Cal.App.3d 1470, 1478-1482; U.S. v. Fry (9th Cir. 2003) 322 F.3d 1198, 1200-1201.)

^[3] While this appeal was pending, Martinez petitioned the trial court for an additional day of actual presentence custody credit. The trial court granted the request and prepared an amended order and abstract of judgment so stating.

^[4] If a defendant does not appeal from the original judgment, and later seeks to overturn the judgment based on an alleged factual mistake, he may file a petition for writ of error coram nobis in the trial court, and properly may appeal from its denial. ( 1265, subd. (a); People v. Allenthorp (1966) 64 Cal.2d 679, 683; In re Wessley W. (1981) 125 Cal.App.3d 240, 248.) Martinez offered no explanation why he failed either to appeal the denial of his 2000 motion to vacate or to file his petition during the six years between the denial of his motion to vacate and the filing of his petition. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.)

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)