Filed 1/21/15 P. v. Martinez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B254314

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA053737)
         v.

FEDERICO MARTINEZ,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Gary J.
Ferrari, Judge. Affirmed.


         Karlin & Karlin and Marc A. Karlin for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for
Plaintiff and Respondent.


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       In 2002, appellant Frederico Martinez, a Mexican citizen, pled no contest to one
count of forgery (Pen. Code, § 470, subd. (d))1 and was sentenced to three years’ formal
probation, as well as 180 days in county jail. During his plea, the prosecutor informed
him at the court’s direction that if he was not a United States citizen, his no contest plea
“will result in your deportation, exclusion from admission to the United States or denial
of naturalization as a citizen.” Appellant stated he understood those immigration
consequences and stated he wanted to go forward with his plea. After his probation was
revoked and reinstated twice, his probation expired on December 11, 2006.
       Now seeking legal status in the United States, on October 29, 2013, appellant filed
a “nonstatutory” motion to vacate his plea based on ineffective assistance of counsel
pursuant to Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), in which the United States
Supreme Court held that a claim for ineffective assistance of counsel may be based upon
misadvising or failing to advise a defendant regarding possible immigration
consequences of a plea. (See People v. Aguilar (2014) 227 Cal.App.4th 60, 74
(Aguilar).) The trial court denied the motion “without prejudice,” allowing appellant to
bring the motion again if there was “some change in circumstances” or if appellant
wanted to renew it on “different grounds.” Although not entirely clear, the trial court
appeared to reason that Padilla did not apply to appellant’s plea entered in 2002.2
Appellant timely appealed. We affirm the order denying the motion, but for a different
reason: the relief appellant seeks is procedurally unavailable.3




1      All undesignated statutory citations are to the Penal Code unless otherwise noted.
2     The United States Supreme Court has held Padilla does not apply to defendants
whose convictions became final before Padilla was decided. (Chaidez v. United States
(2013) __ U.S. __, __ [133 S.Ct. 1103, 1113].)
3      We may affirm the trial court on any basis in the record. (People v. Mbaabu
(2013) 213 Cal.App.4th 1139, 1148, fn. 4.) Respondent briefed the procedural flaws of
appellant’s motion and appellant failed to file a reply brief. Because appellant had the
opportunity to brief the issues, we find it appropriate to address them.


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          On appeal, appellant acknowledges his motion is “nonstatutory,” and he equates it
with a petition for a writ of error coram nobis. He also cites the trial court’s “inherent
authority to find a remedy for a constitutional violation even if no statute provides one.”
The court in Aguilar addressed precisely the same factual scenario and found all potential
procedural avenues for relief foreclosed. We agree.
          The defendant in Aguilar pled nolo contendere in 2005, and, after he was no
longer in state custody and his probation had expired, he brought a petition to vacate his
conviction in 2013 based on his counsel’s ineffective assistance in failing to advise him
of immigration consequences flowing from his conviction. (Aguilar, supra, 227
Cal.App.4th at pp. 64-65.) As the court explained, “[a] noncitizen who has been
convicted of a felony based on a plea of guilty or nolo contendere, but who claims that he
was not advised on the immigration consequences of his or her plea, has three possible
remedies. (1) He or she can appeal from the judgment, pursuant to section 1237, if the
record reflects the facts on which the claim is based. (2) He or she can bring a statutory
motion to vacate the judgment, under section 1016.5, which requires the trial court to
advise the pleading noncitizen felony defendant of the potential immigration
consequences of his plea, and requires that the plea be set aside if it fails to do so. (3) He
or she may petition for a writ of habeas corpus raising the issue of ineffective assistance
of counsel . . . . These are the only potentially available remedies. A writ of error coram
nobis, based on a claim of ineffective assistance of counsel for failure to advise the
defendant of the immigration consequences of his or her plea, cannot be used to
challenge a conviction or withdraw the plea.” (Id. at p. 68, citations & fn. omitted.)
          Turning to the facts in the case, the court held none of these potential remedies
was available to the defendant. First, citing People v. Villa (2009) 45 Cal.4th 1063
(Villa), the court held a writ of habeas corpus was unavailable because the defendant was
in neither actual nor constructive state custody. (Aguilar, supra, 227 Cal.App.4th at
p. 68.)
          Second, citing Villa’s companion case of People v. Kim (2009) 45 Cal.4th 1078
(Kim), the court held a writ of error coram nobis was unavailable. In Kim, the defendant

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sought to set aside his conviction by way of a writ of error coram nobis, arguing his
counsel was ineffective for failing to adequately investigate and advise him of the
immigration consequences of his plea. The Supreme Court explained a writ of error
coram nobis requires a showing that “some fact existed which, without any fault or
negligence on [the petitioner’s] part, was not presented to the court at the trial, and which
if presented would have prevented the rendition of the judgment.” (Aguilar, supra, 227
Cal.App.4th at p. 69.) The Supreme Court held the supposed “new facts” that the
defendant’s counsel failed to advise him of immigration consequences “involve only ‘the
legal effect of his guilty plea and thus are not grounds for relief on coram nobis.’” (Ibid.)
The court in Aguilar found the defendant’s claim “equally insufficient,” so a writ of error
coram nobis was foreclosed. (Id. at p. 70.)
       Third, the court found section 1016.5 did not apply. That provision “requires that
before a court accepts a plea of guilty or no contest, it must advise the defendant that if he
or she is not a citizen, the conviction ‘may have the consequences of deportation,
exclusion from admission to the United States, or denial of naturalization.’ (§ 1016.5,
subd. (a).) It further provides that if ‘the court fails to advise the defendant as required’
by that section and the defendant shows that the conviction may have adverse
immigration consequences, the court must grant a motion to vacate the judgment and
allow the defendant to withdraw the plea. (§ 1016.5, subd. (b).)” (Aguilar, supra, 227
Cal.App.4th at pp. 70-71.) Because the record in Aguilar reflected the trial court advised
the defendant of the possible immigration consequences of his plea, a section 1016.5
motion was foreclosed. (Aguilar, at p. 71.)
       Finally, the court rejected the defendant’s argument that he could bring a
“nonstatutory” motion to set aside his conviction apart from these procedural vehicles.
The court noted a “nonstatutory” motion is the legal equivalent of a petition for a writ of
error coram nobis, and that petition is unavailable pursuant to Kim. (Aguilar, supra, 227
Cal.App.4th at pp. 73-74.) The court also cited People v. Shokur (2012) 205 Cal.App.4th
1398 (Shokur), in which the court rejected the defendant’s argument that the trial court
has “inherent authority” to hear a nonstatutory motion to vacate a plea based on the

                                               4
failure to advise of immigration consequences when all other relief is foreclosed. (Id. at
p. 1404.) “The cases relied upon do not, however, compel the conclusion that the trial
court retains jurisdiction to vacate its long-since final judgment when the state provides
the means for challenging the judgment and the time limits in which the various remedies
must be exercised have expired. In other words, a nonstatutory motion is not an all-
encompassing safety net that renders all other remedies redundant and their respective
time restrictions meaningless.” (Ibid.; see Aguilar, supra, at p. 74.)
       Here, appellant is similarly without a remedy. The time to move to withdraw his
plea or appeal his conviction has long since expired. (§§ 1018, 1237; Cal. Rules of
Court, rule 8.308(a).) A writ of habeas corpus is unavailable because he is no longer in
actual or constructive state custody, given his probation expired in 2005. A writ of error
coram nobis is foreclosed because, as in Aguilar and Kim, his motion involves “only ‘the
legal effect of his guilty plea and thus [is] not grounds for relief on coram nobis.’”
(Aguilar, supra, 227 Cal.App.4th at p. 69.) He may not bring a section 1016.5 motion
because the record is clear the prosecutor advised him of the immigration consequences
of his plea at the direction of the trial court.
       Finally, like Aguilar and Shokur, we are unwilling to find the trial court has
“inherent authority” to entertain appellant’s motion because “a nonstatutory motion is not
an all-encompassing safety net that renders all other remedies redundant and their
respective time restrictions meaningless.” (Shokur, supra, 205 Cal.App.4th at p. 1404;
see Aguilar, supra, 227 Cal.App.4th at p. 74.) Appellant cites Murgia v. Municipal Court
(1975) 15 Cal.3d 286 and People v. Fosselman (1983) 33 Cal.3d 572 as authority for
such a motion, but as the court in Shokur explained, both cases addressed the trial court’s
jurisdiction to address issues arising in pending cases. Neither case “stand[s] for the
proposition that the trial court retains jurisdiction for all time to consider belated
constitutional challenges to a long since-final judgment.” (Shokur, supra, at p. 1406.)4



4      Appellant also cites In re Sheena K. (2007) 40 Cal.4th 875, but that case addressed
the application of the forfeiture rule to a constitutional challenge to a minor’s probation

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       We realize this may be a harsh result, but as our high court has noted, “‘The
maxim, “for every wrong there is a remedy” [citation] is not to be regarded as affording a
second remedy to a party who has lost the remedy provided by law through failing to
invoke it in time—even though such failure accrued without fault or negligence on his
part.’” (Kim, supra, 45 Cal.4th at p. 1099; see Aguilar, supra, 227 Cal.App.4th at p. 75
[quoting same]; Shokur, supra, 205 Cal.App.4th at pp. 1406-1407 [same].)
                                      DISPOSITION
       The trial court’s order denying appellant’s motion to set aside his conviction is
affirmed.




                                                   FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




condition, among other issues. It did not address, let alone endorse, the trial court’s
inherent authority to grant appellant’s request to set aside his conviction long after it
became final.


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