Filed 9/16/14 P. v. Ordonez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B248483

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA006975)
         v.

LUIS ORDONEZ,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County.
Gregory A. Dohi, Judge. Affirmed.


         Law Office of Eduardo A. Paredes and Eduardo A. Paredes for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Luis Ordonez (Ordonez) appeals from the denial of his statutory and nonstatutory
motions to vacate his guilty plea to the charge of attempted second degree robbery (Pen.
Code, §§ 211, 664).1 We find no error and affirm.
                                          FACTS
       In 1991, Ordonez was charged with second degree robbery. After the prosecutor
amended the information to add a second count for attempted second degree robbery,
Ordonez pleaded guilty to that count. The trial court sentenced him to 132 days in jail
and three years probation.
       On February 4, 2013, Ordonez filed a motion to vacate his plea on the grounds
that he was not given the mandatory advisement under section 1016.5, subdivision (a)
that his plea might have adverse immigration consequences. He offered no evidence to
support his claim that he was not advised by the trial court. Rather, he claimed that
because he could not obtain a reporter’s transcript of the plea hearing, there was no
evidence to the contrary. To prove the unavailability of a reporter’s transcript, he
provided a letter from the superior court stating that the court reporter’s notes had been
destroyed. In the alternative, Ordonez made a nonstatutory motion to vacate his plea
based on ineffective assistance of counsel, citing Padilla v. Kentucky (2010) 559 U.S.
356 (Padilla). He claimed, at least impliedly, that his attorney failed to inform him that a
conviction of a crime of moral turpitude within five years of his admission to the United
States in 1987 would make him removable under the Immigration and Nationality Act.
       At the hearing on the motion, the trial court indicated that it had the transcript
from the June 25, 1991, hearing at which Ordonez entered his plea, and the transcript
showed that Ordonez received the proper advisements. The trial court showed the
transcript to defense counsel, who had no objection. Afterwards, the trial court stated,
“Since the proper advisements were given, a [section] 1016.5 motion doesn’t lie.”
Continuing on, the trial court rejected the nonstatutory motion based on Padilla on the
grounds that it was not permissible, adding, “The sad fact of the matter is there really is

1
       All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
no basis, no nonstatutory motion, no coram nobis writ, no habeas writ relief that I can
give.” The motion was denied.
       This timely appeal followed.
                               STANDARD OF REVIEW
       We review a trial court’s denial of a motion to withdraw a plea pursuant to section
1016.5 for an abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23
Cal.4th 183, 192.) Whether a particular withdraw plea remedy is available to a criminal
defendant is a question of law that is subject to our independent review. (People v.
Eubanks (2001) 53 Cal.4th 110, 133.)
                                       DISCUSSION
I. The Remedies Available to a Noncitizen Who Enters a Plea Without Being
Advised of the Immigration Consequences.
       If a noncitizen pleads guilty or no contest without being advised of the
immigration consequences, and judgment is then entered against the noncitizen, there are
“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, under theories approved in Strickland v. Washington
(1984) 466 U.S. 668, 687–688 . . . , and In re Resendiz (2001) 25 Cal.4th 230 . . . .
[Citation.] 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




                                              3
challenge a conviction or withdraw the plea.” (People v. Aguilar (2014) 227 Cal.App.4th
60, 68 (Aguilar).)2
       Relief pursuant to a writ of habeas corpus is available only when a defendant is in
actual or constructive California custody as a result of the conviction. (Aguilar, supra,
227 Cal.App.4th at p. 68.)
II. The Statutory Motion.
       Ordonez argues that his statutory motion should have been granted because he was
not given the section 1016.5, subdivision (a) advisement.
       This argument lacks merit.
       A defendant considering a guilty plea must be told the following: “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.”
(§ 1016.5, subd. (a).)
       “If . . . the court fails to advise the defendant . . . and the defendant shows that
conviction of the offense to which defendant pleaded guilty . . . may have the
consequences for the defendant of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the United States, the court, on
defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the
plea of guilty. . . . Absent a record that the court provided the advisement required by
this section, the defendant shall be presumed not to have received the required
advisement.” (§ 1016.5, subd. (b).)
       The trial court found that Ordonez was given the section 1016.5, subdivision (a)
advisement. Ordonez does not expressly dispute this finding. Assuming he impliedly

2
        Section 1018 provides in part: “On application of the defendant at any time before
judgment or within six months after an order granting probation is made if entry of
judgment is suspended, the court may, and in case of a defendant who appeared without
counsel at the time of the plea the court must, for a good cause shown, permit the plea of
guilty to be withdrawn and a plea of not guilty substituted.” This remedy does not apply
after judgment is imposed.

                                               4
disputes this finding, the record is inadequate for review because it does not contain the
transcript relied upon by the trial court. (Mountain Lion Coalition v. Fish & Game Com.
(1989) 214 Cal.App.3d 1043, 1051, fn. 9.) As a consequence, there is no showing that
the trial court abused its discretion.
       To the degree that Ordonez suggests that the trial court should have granted the
statutory motion based on ineffective assistance of counsel, we reject it.
       As the Aguilar court explained: “Section 1016.5 addresses only the duty of trial
courts to advise the defendant of the immigration consequences of the plea, and it
empowers the court to vacate a conviction and set aside a plea only for the court’s failure
to fulfill that duty. It does not address any duty that defense counsel may have to provide
such advice, nor does it empower the court to vacate a conviction or set aside a plea for
counsel’s failure to fulfill his or her duty in that regard. For that reason, section 1016.5
does not provide the trial court with jurisdiction to address a claim that a defendant was
deprived of the effective assistance of counsel by counsel’s failure to fully advise him or
her of the immigration consequences of a guilty plea. [Citation.]” (Aguilar, supra, 227
Cal.App.4th at p. 71.)
       Beyond the foregoing, we note that Ordonez submitted a declaration in connection
with his statutory and nonstatutory motions, but he did not state that his attorney failed to
advise him of the immigration consequences of entering a plea. Thus, his ineffective
assistance of counsel claim lacked proof.
III. The Nonstatutory Motion.
       Based on Padilla, Ordonez contends that his nonstatutory motion to withdraw his
plea should have been granted. The Padilla court held that a defendant is entitled to
effective assistance of counsel before deciding whether to enter a guilty plea. (Padilla,
supra, 559 U.S. at p. 364.) In situations where the immigration consequences of a plea
are clear, counsel must give correct advice. If, however, “the law is not succinct and
straightforward . . . , a criminal defense attorney need do no more than advise a
noncitizen client that pending criminal charges may carry a risk of adverse immigration
consequences.” (Id. at p. 369.) Padilla is not retroactive to any case that was final prior

                                              5
to March 31, 2010, the date Padilla was decided. (Chaidez v. United States (2013) 2013
U.S. LEXIS 1613, ***5.)
       The trial court properly denied Ordonez’s nonstatutory motion for a variety of
reasons. First, “[a] motion to vacate the judgment is recognized as equivalent to a
petition for the common law remedy of a writ of error coram nobis. [Citations.]”
(People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1146.) “Because the writ of error
coram nobis applies where a fact unknown to the parties and the court existed at the time
of judgment that, if known, would have prevented rendition of the judgment, the remedy
does not lie to enable the court to correct errors of law. [Citation.] This includes
constitutional claims, such as a claim that counsel was ineffective in failing to admonish
a defendant of the immigration consequences of his conviction. [Citation.]” (Id. at
p. 1147.) Second, Ordonez was convicted in 1991, and the Padilla rule is not retroactive.
Third, People v. Soriano (1987) 194 Cal.App.3d 1470, 1477–1482 (Soriano), relied upon
by Ordonez to fill the nonretroactivity gap of Padilla, does not require an attorney to
provide immigration advice in the first instance. It merely requires an attorney to give
proper immigration advice if such advice is offered. (People v. Reed (1998) 62
Cal.App.4th 593, 602 [explaining that Soriano is not apposite in a case involving “a
defense counsel’s complete failure to tell the defendant about a particular plea effect”].)
Fourth, there is no evidence in Ordonez’s motion that his attorney failed to advise him of
the immigration consequences of his plea. Fifth, ineffective assistance of counsel claims
must be pursued in connection with a petition for writ of habeas corpus, which Ordonez
did not do. Even if we construed his motion as a petition for writ of habeas corpus, relief
was not available because he was no longer in California custody with respect to the 1991
conviction based on his plea.




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                                    DISPOSITION
       The order denying Ordonez’s statutory and nonstatutory motions to withdraw his
plea is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                __________________________, J.
                                                      ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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