People v. Vasquez CA4/2 ( 2016 )

Filed 2/29/16 P. v. Vasquez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062068
v. (Super.Ct.No. FRE05168)
FELIPE DE JESUS VASQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
Karlin & Karlin and Marc A. Karlin for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan
Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Felipe De Jesus Vasquez appeals from the denial of his motion to
vacate his 2002 guilty plea to possession for sale of a controlled substance (Health & Saf.
Code, § 11378—count 2). Defendant contends he received ineffective assistance of
counsel when he entered that plea because his counsel failed to advise him of the
immigration consequences of his plea. We find no error, and we affirm.
FACTS AND PROCEDURAL BACKGROUND
The underlying facts are not relevant to the issue raised in this appeal, and the
parties have not provided any statement of those facts. We will likewise omit such a
statement.
On March 6, 2002, defendant was charged in a felony complaint with
transportation of a controlled substance, methamphetamine (Health & Saf. Code,
§ 11379, subd. (a)—count 1) and possession for sale of a controlled substance,
methamphetamine (Health & Saf. Code, § 11378—count 2). On March 15, 2002,
defendant entered into a plea bargain, pursuant to which he entered a plea of guilty to one
count of possession for sale of a controlled substance. (Health & Saf. Code, § 11378—
count 2). On the plea form, defendant initialed the following statement: “I understand
that if I am not a citizen of the United States, deportation, exclusion from admission to
the United States, or denial of naturalization may result from a conviction of the
offense(s) to which I plead guilty/nolo contendere (no contest).” At the plea hearing,
defendant confirmed that with the aid of his attorney, he had read and gone over the
statements in the plea agreement form where he had placed his initials, and he had signed
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the form. He confirmed that he understood the legal rights he would be giving up by his
plea. The court found that defendant understood the consequences of his plea and
“understandingly and intelligently waive[d] his constitutional rights.” On April 29, 2002,
defendant was sentenced to 90 days in the county jail followed by 36 months of
supervised probation.
On July 21, 2014, defendant moved to vacate his guilty plea on the ground he had
received ineffective assistance of counsel because his counsel had failed to advise him of
the immigration consequences of his plea. In his motion, defendant stated he is a citizen
of Mexico and is seeking to obtain legal immigration status in this country through his
three children, who are United States citizens, and his parents, who are legal permanent
residents of the United States. He asserts in his motion and in this appeal that his
conviction prevents him from obtaining legal immigration status.
Defendant stated that before he entered his plea, his counsel did not ask him if he
was a United States citizen or what his immigration status was. He asserts that counsel
never advised him that his guilty plea would affect his immigration status or a future
application for legal immigration status. Defendant stated that the plea form was not
translated from English to Spanish before he signed it. He adds, that in court, he was
extremely nervous, and he did not remember the trial court explaining immigration
consequences of his plea.
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On September 30, 2014, at the hearing on defendant’s motion to vacate his plea,
defense counsel conceded that defendant’s plea form contained the required immigration
admonition, and that defendant had been assisted by a Spanish language interpreter at the
time of his plea. The trial court denied the motion on the grounds that (1) the motion was
a collateral attack akin to a petition for writ of habeas corpus; (2) defendant had no
standing to pursue such relief because he was no longer in custody; and (3) the petition
was untimely.
DISCUSSION
Defendant contends he received ineffective assistance of counsel when he entered
that plea because his counsel failed to advise him of the immigration consequences of his
plea.
Defendant bases his motion on Padilla v. Kentucky (2010) 559 U.S. 356. In that
case, the United States Supreme Court held that immigration consequences are an
integral part of the penalty imposed on a noncitizen defendant who pleads guilty to
certain crimes, and defense counsel has an affirmative duty to accurately inform a
defendant of the risk of deportation created by such a plea. (Id. at pp. 371-372.)
Defendant argues that Padilla may be applied retroactively. However, the Supreme
Court has since clarified that the holding in Padilla does not apply retroactively.
(Chaidez v. U.S. (2013) ___ U.S. ___ [133 S. Ct. 1103, 1107-1113].)
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Defendant characterizes his motion as equivalent to a petition for writ of error
coram nobis. To prevail on such a petition, the petitioner must show that (1) “‘some fact
existed which, without any fault or negligence on his part, was not presented to the court
at the trial on the merits, and which if presented would have prevented the rendition of
the judgment’” (People v. Shipman (1965) 62 Cal. 2d 226, 230); (2) the “‘newly
discovered evidence . . . [does not go] to the merits of issues tried’” (ibid.); and (3) “‘that
the facts upon which he relies were not known to him and could not in the exercise of due
diligence have been discovered by him at any time substantially earlier than the time of
his [petition] for the writ’” (ibid.; see People v. Kim (2009) 45 Cal. 4th 1078, 1093). The
remedy applies to correct only errors of fact; “‘[t]he remedy does not lie to enable the
court to correct errors of law.’” (Kim, at p. 1093.) Moreover, the remedy is not available
to a defendant who had some other remedy at law, such as an appeal or motion for new
trial, but who failed to avail himself of such a remedy. (Ibid.)
California law does not provide any statutory or nonstatutory vehicle for a
defendant to raise a constitutional claim after the conviction is final and the defendant has
been released from custody. (People v. Shokur (2012) 205 Cal. App. 4th 1398, 1406-
1407.) Rather, if a defendant fails to timely seek legal remedies, he is barred from doing
so, even if the failure was not based on his own fault or negligence. (Id. at p. 1407.)
Defendant’s conviction took place in 2002. It is long since final. The trial court did not
err in denying his request to vacate his guilty plea.
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DISPOSITION
The order appealed from is affirmed.
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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