Filed 10/27/14 P. v. Ahmed CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065237

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD227073)

MOHAMED A. AHMED,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

         Buckley & Buckley and Christian C. Buckley, under appointment by the Court of

Appeal, for Defendant and Appellant.

         No appearance by Plaintiff and Respondent.

         Mohamed A. Ahmed appeals from an order denying his motion to vacate

judgment pursuant to Penal Code1 section 1016.5 and the denial of his related petition for

writ of error coram nobis.



1        All further statutory references are to the Penal Code unless otherwise specified.
       Appellate counsel has filed a brief pursuant to People v. Wende (1979)

25 Cal.3d 436 (Wende), indicating he has been unable to discover any reasonably

arguable issues for reversal on appeal. Pursuant to Wende, counsel asks this court to

review the record for possible error. Ahmed has filed a supplemental brief on his own

behalf arguing this court should reverse the trial court's decision. We will discuss the

issue raised by Ahmed later in this opinion.

                            PROCEDURAL BACKGROUND

       The facts of the underlying offense are not relevant to the issues raised in this

appeal. Accordingly we will focus on the procedural events in this case to provide

background for our discussion which follows.

       In October 2010, Ahmed entered a guilty plea to one count of felony

transportation of a controlled substance (khat) in violation of Health and Safety Code

section 11379, subdivision (a) and one count of misdemeanor possession of a controlled

substance in violation of Health and Safety Code section 11377, subdivision (a). Ahmed

was granted probation subject to a term of 90 days in custody pursuant to the plea

agreement.

       In April 2012, Ahmed filed a motion pursuant to the plea agreement to vacate the

judgment or to withdraw the guilty plea. The court granted the motion to withdraw the

guilty plea and dismissed the transportation count.

       On October 29, 2013, Ahmed filed another motion to vacate the judgment and for

relief under section 1016.5. He also requested the court to issue a writ of error coram

nobis. The court denied the motion and the petition.

                                               2
       Ahmed filed a timely notice of appeal.

                                       DISCUSSION

                                                I

                                   THE WENDE BRIEF

       As we have noted, appellate counsel has filed a brief pursuant to Wende, supra,

25 Cal.3d 436, and has requested this court to review the record for error. Pursuant to

Anders v. California (1967) 386 U.S. 738 (Anders), counsel has listed a possible, but not

arguable issue for the court's consideration:

       Whether the motion to vacate judgment pursuant to section 1016.5 based on

Ahmed's claim he was not properly advised of the immigration consequences of his plea

was properly denied?

       In our review of the record we note that the change of plea form which Ahmed

signed, after it was translated by a certified interpreter, included the paragraph: "I

understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my

removal/deportation, exclusion from admission to the U.S. and denial of naturalization.

Additionally, if this plea is to an 'Aggravated Felony' listed on the back of this form, then

I will be deported, excluded from admission to the U.S., and denied naturalization."

(Emphasis in original.) A list of aggravated felonies, including "transportation of any

controlled substance" was attached to the change of plea form.

       When the change of plea was taken in open court the court told Ahmed the

following: "Then if you are not a U.S. citizen, the plea could result in your removal,

deportation, exclusion from admission to the United States, and denial of naturalization.

                                                3
Additionally, if it's an aggravated felony, you would be deported, excluded from

admission to the United States, or denied naturalization."

       Ahmed was represented by counsel during all plea and sentencing proceedings and

was assisted by a certified interpreter.

       In its written order denying Ahmed's motion to vacate and for writ relief, the court

found Ahmed was properly advised of the immigration consequences of his plea and that

Ahmed's claims of confusion were "unconvincing."

                                             II

                           AHMED'S SUPPLEMENTAL BRIEF

       Upon receiving appellate counsel's Wende brief, this court offered Ahmed the

opportunity to file his own brief on appeal, and he has done so. In his brief, Ahmed

contends that the day before his decision to accept the prosecution's plea bargain, the trial

court gave him advice on immigration that was contrary to what the court said at the

change of plea hearing. Therefore he contends the trial court was without jurisdiction to

accept his plea and that in any event he is entitled to have the judgment "vacated"

pursuant to section 1016.5.

       Even though the conviction for transportation of khat was dismissed after his plea

was withdrawn, Ahmed alleges that immigration authorities have still proceeded with

removal proceedings. Thus he argues we should somehow further vacate the original

judgment, in which his guilty plea has already been withdrawn and the case has already

been dismissed.



                                              4
       In order to place his contentions in context we must discuss the events leading up

to his guilty plea. At the time the case was ready for trial, apparently the prosecutor

offered Ahmed and his codefendant a plea agreement. It appears Ahmed was not

inclined to take the offer. The trial court believed it necessary to inform Ahmed on the

record of the plea offer and the consequences he might face if he was convicted after a

trial.2 The court said:

          "THE COURT: Do you understand then, Mr. Ahmed, what that
          means? The -- currently the case -- the case that you're charged with
          carries a potential punishment of imprisonment in the state prison in
          California for up to four years and eight months, and the offer to you
          is to plead with a grant of probation and with the possibility that the
          matter be reduced to a misdemeanor if you are successful in your
          probation for 18 months. [¶] Now, ancillary consequences: If you
          are found guilty of either of these two counts in front of the jury,
          those would be felonies and they would not be reduced to
          misdemeanors. That's -- that wouldn't be allowed under California
          law for the court to reduce those matters to misdemeanors at any
          time, and there could very well be immigration and naturalization
          consequences to a conviction for these types of felonies. [¶] I know
          [defendant's attorney] discussed those things with you, but I want to
          make sure that you understand what the exposure is for you here and
          what the offer is that's being made by the District Attorney's office."

       The court further stated:

          "THE COURT: Anyway, I guess my point with you, Mr. Ahmed, is
          that you understand that a trial that results in a conviction is a felony
          for all purposes, possibly state prison and possibly immigration
          consequences. Whether that state prison is for a maximum of four
          years or four years and eight months, there are additional
          consequences there. [¶] That's the -- I don't know if they have a
          saying where you grew up of 'a bird in the hand is worth two in the
          bush,' but that's an old saying at least in this part of the world that
          you would be able to plead to a count here -- or two counts here that


2      Apparently the court was relying on People v. Alvernaz (1992) 2 Cal.4th 924.
                                              5
           would eventually allow you to earn a misdemeanor, which does not
           -- a misdemeanor has a maximum of a year in jail as a consequence
           and doesn't involve state prison, and the immigration consequences,
           I think, are quite different with regard to a misdemeanor versus a
           felony for transportation or for possession for sale. [¶] So
           understanding that, is it still your -- is it your desire to move forward
           with this trial? Did you want to talk a little bit more with
           [defendant's attorney]?"

       Ahmed contends the advice given the day before the plea contradicted the advice

on immigration consequences. We disagree.

       The court's advice the day before the plea informed Ahmed of the consequences of

a conviction for the nonreducible felony. The court sought to convey the notion that the

plea offered a chance to have the plea set aside and the felony dismissed after probation,

which of course is exactly what occurred in this case. The court did not say the plea

would not result in immigration consequences. Rather it said that having the felony

replaced with a misdemeanor conviction after probation may be a better outcome for

purposes of immigration.

       In any event, Ahmed was represented by counsel and had a certified interpreter at

the time of the plea. Without question, he was fully advised of the potential immigration

consequences of the guilty plea, both in writing and orally. After hearing the motion to

"vacate" the judgment the trial court found Ahmed was properly advised of the

immigration consequences of his plea and that he did understand the court's advice.

       Even if there was some additional remedy that could be provided by some

additional act of vacating a judgment which has already been vacated, there is no basis

for such relief in this record.


                                               6
                                      DISPOSITION

       The order denying Ahmed's motion to vacate judgment pursuant to section 1016.5

and denying his petition for writ of error coram nobis is affirmed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:


                      HALLER, J.


                  McDONALD, J.




                                             7
