Filed 4/16/14 P. v. Cisneros CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR



THE PEOPLE,                                                          B250671

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA088049)
         v.

CARLOS ARQUIMEDE CISNEROS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Marcelita V. Haynes, Judge. Affirmed.
         Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Respondent.




                               ____________________________________
      On April 13, 2005, the Los Angeles County District Attorney’s Office
charged appellant with corporal injury to a spouse (Pen. Code, § 273.5; count 1)
and criminal threats (Pen. Code, § 422; count 2). On April 13, 2005, appellant
pled guilty to count 1. The official transcript of the plea hearing reflected that
appellant was advised by the trial court as follows: “‘If you’re not a citizen, you
have a right to consult with the consulate of the country you are a citizen of before
entering your plea -- [I]f you’re not a citizen, your plea will have the consequences
of deportation, exclusion from admission, denial of naturalization, amnesty, or
reentry pursuant to the laws of the United States.’” Appellant was asked if he
understood those rights, and he responded, “‘Yes.’” The trial court further advised
appellant and his trial counsel that appellant had an immigration hold and that he
was going to be deported. The court asked appellant if he understood he was going
to be deported, and he answered, “‘Yes.’” The minute order likewise reflected that
appellant was advised of the immigration consequences of his plea.
      At the sentencing hearing the same day, the trial court suspended imposition
of sentence and placed appellant on five years probation on the condition that he
serve 365 days in county jail. According to appellant, he was deported and
subsequently reentered the United States in March 2012, whereupon he was
detained by the United States Immigration and Customs Enforcement (ICE), part
of the United States Department of Homeland Security (DHS). On March 28,
2012, appellant admitted he was in violation of probation for failing to report to the
probation department and for not attending domestic violence counseling
programs.
      On June 27, 2013, appellant filed a motion to vacate his plea and/or reduce
his conviction to a misdemeanor. He contended he was never advised that
pleading to the corporal injury charge would have immigration consequences. He
also contended that he received ineffective assistance of counsel under Padilla v.

                                           2
Kentucky (2010) 559 U.S. 356 (Padilla), as he never was informed of other
available options that lacked immigration consequences. The following day, the
trial court denied the motion, finding that appellant had been informed of the
immigration consequences of his plea.
      On July 15, 2013, appellant prepared a writ of habeas corpus, seeking to
vacate his plea. In his writ, he alleged he was being detained by DHS at the
Adelanto Detention Center. Nothing indicates that this writ was filed in any court.
      On August 1, 2013, appellant filed another motion to vacate his plea and/or
reduce his conviction to a misdemeanor. The next day, the trial court found the
motion duplicative of the prior motion, and again denied relief. The court’s
August 2 order also noted that appellant’s sentence was final in 2005, and that the
United States Supreme Court had held in Chaidez v. United States (2013) __ U.S.
__ [133 S.Ct. 1103] (Chaidez), that Padilla was inapplicable to any case already
final prior to the March 31, 2010 Padilla ruling.
      On August 1, 2013, appellant noticed an appeal from an order or judgment
entered “March 25, 2005.” In an attached declaration, he alleged that he was
currently detained at Adelanto Detention Center, “undergoing deportation
proceedings by the Department of Homeland Security.”
      After examining the record, appointed appellate counsel filed a brief raising
no issues, but asking this court to independently review the record on appeal
pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v.
Robbins (2000) 528 U.S. 259, 264.) On January 7, 2014, we advised appellant he
had 30 days within which to submit by brief or letter any contentions or argument
he wished this court to consider. On February 10, 2014, appellant filed a
supplemental brief, consisting of a writ of error coram nobis (or coram vobis) to
vacate his conviction and amend his plea. In his writ, appellant sought relief on the
ground that he received ineffective assistance of counsel, as defense counsel

                                          3
purportedly had failed to properly advise him of the actual immigration
consequences of his plea. In an attached declaration, appellant stated that he is
currently detained by ICE and housed in Adelanto, California.
      As an initial matter, appellant’s notice of appeal is defective, as it notices an
appeal from a nonexistent order. To the extent appellant is appealing his
conviction and sentence in 2005, it is untimely. However, we will exercise our
discretion and construe the notice of appeal as being from the denial of appellant’s
June 2013 motion to vacate his conviction and amend his plea. After review, we
find no error.
      Appellant was advised in open court of the possible immigration
consequences of his plea. He was further advised that he was subject to an
immigration hold, and that he would be deported following his sentencing. After
being advised, he pled guilty. On these facts, even if defense counsel failed to
properly advise him, appellant was informed of the possible and actual
immigration consequences of his plea. Moreover, in Chaidez, the United States
Supreme Court held that for defendants whose convictions became final prior to
March 31, 2010 (the date of the Padilla ruling), a lawyer’s failure to advise
noncitizen clients of immigration consequences of a criminal conviction does not
constitute ineffective assistance of counsel under the Sixth Amendment of the
federal Constitution. (Chaidez, supra, 113 S.Ct. at p. 1113.) As appellant’s
conviction was final in 2005, he cannot assert a claim for ineffective assistance of
counsel for counsel’s purported failure to inform him of the immigration
consequences of his plea. In short, the trial court properly denied appellant’s
motion, as he failed to show a legal basis to vacate his plea and/or reduce his
conviction to a misdemeanor.
      As to appellant’s writ of error coram nobis, appellant has not shown he is
entitled to relief on coram nobis. As appellant was advised of the possible and

                                           4
actual immigration consequences of his plea, he cannot show any new facts that
would bring him within the writ. In People v. Kim (2009) 45 Cal.4th 1078, the
California Supreme Court specifically rejected the argument that ineffective
assistance of counsel in failing to investigate the immigration consequences of a
plea, or failing to negotiate a different plea, constituted grounds for relief on coram
nobis. (Id. at p. 1104.) Accordingly, we deny appellant’s petition for writ of error
coram nobis.
      Likewise, we conclude that appellant is not entitled to relief by way of a writ
of habeas corpus. Appellant alleges that he is in federal custody. The California
Supreme Court has held that a defendant in federal custody may not seek to vacate
his state conviction by way of a state writ of habeas corpus. (People v. Villa
(2009) 45 Cal.4th 1063, 1075-1076.) Thus, appellant is not entitled to vacate his
plea by way of a state writ of habeas corpus.
      This court has examined the entire record in accordance with People v.
Wende, supra, 25 Cal.3d at pages 441-442, and is satisfied appellant’s attorney has
fully complied with the responsibilities of counsel, and no arguable issues exist.
Accordingly, we affirm the judgment of conviction.




                                           5
                                         DISPOSITION
       The judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                         MANELLA, J.


We concur:




EPSTEIN, P. J.




EDMON, J.*




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