Filed 2/26/16 P. v. Padilla CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B265160

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. VA033618)
         v.

JOSE RAMON PADILLA,

         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Los Angeles County. Olivia
Rosales, Judge. Reversed.


         Jackie Lacey, Los Angeles County District Attorney, Steven I. Katz and Felicia N.
Shu, Deputy District Attorneys, for Plaintiff and Appellant.


         Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and
Respondent.


                                                       *********
       In 1996, defendant Jose Ramon Padilla pled guilty to one count of receiving stolen
property. (Pen. Code, § 496, subd. (a).) In 2014, defendant filed a motion to vacate his
plea and petition for writ of error coram nobis. His pleadings sought to set aside his 1996
plea on the grounds the trial court’s “conditional language” in its advisement of the
immigration consequences of the plea did not conform with the requirements of section
1016.5, subdivision (a), and that defense counsel rendered ineffective assistance by
failing to advise defendant of the immigration consequences of his plea. Defendant later
filed an amended motion, arguing additional constitutional grounds to withdraw his plea.
The trial court granted the motion, and the People have appealed.
       Because the advisement given to defendant complied with section Penal Code
1016.5, subdivision (a), and because defendant failed to introduce any evidence that he
would not have entered the plea if he had been “properly advised,” we find the trial court
abused its discretion in vacating the judgment and allowing defendant to withdraw his
plea. The other grounds for defendant’s motion provided no legal or factual basis for the
relief granted by the trial court. We therefore reverse the order below.
                                          FACTS
       On February 14, 1996, defendant pled guilty to receiving stolen property in
violation of Penal Code section 496, subdivision (a). According to the probation report,
defendant had been paid $35,000 to warehouse merchandise which had been carjacked
from various Southern California cargo trucks. At the time defendant entered his plea, he
was a legal resident of the United States. He had come to the United States at the age of
14 from Honduras.
       At the plea hearing, defendant was represented by privately retained counsel.
Before he entered his plea, the prosecutor confirmed on the record that defendant had
signed and initialed the “Guilty Plea in Superior Court” form that was in common use at
that time. Defendant wrote his initials next to the portions of the form that provided:
“I understand that if I am not a citizen of the United States, the conviction for the offense
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.” In

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addition to confirming that defendant had initialed and signed the form, the prosecutor
also repeated to defendant on the record “if you’re not a citizen of the United States, this
guilty plea may have the effect of deportation or the denial of the right to enter the United
States.” The prosecutor asked defendant if he understood, and defendant responded,
“Yes, I do.”
        Defendant also initialed the portion of plea form which provided: “I have
personally initialed each of the above boxes and discussed them with my attorney. I
understand each and every one of my rights outlined above and I hereby waive and give
up each of them in order to enter my plea to the above charges.” Defendant, his attorney,
and the prosecutor each signed the form. The paragraph preceding defense counsel’s
signature provided: “I am attorney of record and I have explained each of the above
rights to the defendant . . . . I further stipulate this document may be received by the
court as evidence of defendant’s intelligent waiver of these rights . . . . ”
        When the prosecutor asked defendant if he was entering a guilty plea freely and
voluntarily, defendant responded, “Yes, I guess so, ” and then said his “options [were]
very limited.” The trial court noted that defendant appeared to have some reservations,
and suggested that defendant further discuss the matter with his attorney. Defendant and
his attorney “confer[red] sotto voce” and then defendant stated on the record that he had
“no reservations.”
        Defendant then entered a guilty plea on the record, and his counsel joined in the
waivers and the plea, and stipulated to the factual basis of the plea, all on the record. The
court found that defendant freely and voluntarily entered his plea, and that he
“knowingly, willingly, and intelligently” waived his rights as reflected in the plea form.
The court stated for the record that both defendant and his attorney had signed the plea
form.
        Defendant was sentenced on April 15, 1996, in conformance with the terms of the
plea agreement. He was placed on probation for three years, and was given 180 days in
jail. Defendant surrendered to serve his jail sentence on April 29, 1996.



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       On February 25, 1997, defendant was found to be in violation of his probation
after he was again convicted of receiving stolen property in a new case, No. KA034925.
He was sentenced to 16 months in state prison in this case, to be served concurrent with
the sentence in his new case.
       More than 17 years later, on October 3, 2014, defendant filed a “Motion of Error
Coram Nobis.” The motion sought an order vacating defendant’s 1996 guilty plea under
Penal Code section 1016.5 on the basis that the “court’s conditional language failed to
properly advise [defendant] of the immigration consequences of entering a plea of guilty”
and that defense counsel “did not advise him as to any possible immigration
consequences.” The motion referred to a declaration of defendant, but no such
declaration was attached to the motion. A transcript of the plea hearing was attached as
an exhibit to the motion.
       Despite the extensive record of admonitions of the immigration consequences of
the plea described above, the motion inaccurately asserted that the transcript of the plea
hearing “contains no mention of immigration matters or consequences.” The motion also
inaccurately asserted that defendant’s plea was not “voluntary and intelligent” because
defendant’s “former attorney failed to adequately advise [defendant] that the conviction
would impact his eligibility for immigration relief.” The motion stated that defendant
had been detained “and is currently facing removal proceedings as a result of [his]
conviction.” The motion also argued (without evidentiary support) that defendant would
not have “agreed to be deported from the only home he has ever known in exchange for a
slightly shorter sentence.” The motion argued that the failure to properly advise
defendant of the immigration consequences constituted ineffective assistance of counsel
under Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla).1 The motion argued that
defendant’s conviction in this case was for a deportable offense, without citing to any
authority.



1      Defendant was the petitioner before the United States Supreme Court in the
Padilla case, following his guilty plea to drug distribution charges in Kentucky.

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       The People opposed the motion on the basis that defendant had signed the plea
form and was advised on the record of the immigration consequences of his plea,
attaching the plea form and transcript of the hearing as exhibits. The People also argued
that defendant failed to support his claim of ineffective assistance of counsel because
there was no evidence that his counsel failed to advise him of the immigration
consequences of his plea, and that defendant was not entitled to coram nobis relief.
       On January 12, 2015, defendant filed a “First Amended . . . Motion to Vacate
Conviction (Nonstatutory Constitutional Grounds).” The motion newly argued that the
immigration advisement under Penal Code section 1016.5 was deficient because the
prosecutor had not mentioned naturalization in his immigration advisement. Defendant
also argued that “the equities in this case weigh[] heavily in [defendant’s] favor,”
specifically, that defendant had lived in the United States for over 40 years, was a “twice-
decorated combat veteran of the Vietnam War,” and that his wife and disabled adult
children lived in the United States. Again, there were no declarations or other evidence
in support of the amended motion.
       On February 2, 2015, defendant’s immigration attorney filed an unsworn
declaration in support of defendant’s motions. The declaration stated that removal
proceedings were initiated against defendant in November 2004 based on his conviction
for receiving stolen property and his confinement in prison. Defendant applied for a
removal waiver, but his request for relief was denied in December 2010 based on his
conviction for an aggravated felony. Defendant’s appeal of this decision was dismissed
in March 2013. Defendant was taken into custody in September 2014 to effect his
removal. On October 22, 2014, defendant was granted a one-year stay of his removal so
that he could pursue having his criminal convictions vacated.
       The hearing on defendant’s motion was held on April 30, 2015. Defendant was
present at the hearing, as was his immigration counsel who had submitted the declaration
in support of defendant’s motions. Neither defendant nor his immigration attorney
testified at the hearing; instead, defendant submitted on his filings after presenting brief
argument.

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       On May 18, 2015, the court entered its order granting defendant’s motion, finding
“defendant was not properly advised of his immigration consequences . . . [¶] . . . [¶]
. . . [b]ased on all the arguments presented.” This timely appeal followed.
                                        DISCUSSION
       Defendant’s motion to vacate the judgment and withdraw his plea was based on
several legal grounds. The motion was styled as a statutory motion for relief under Penal
Code section 1016.5, a petition for error coram nobis, and as a motion on “nonstatutory
constitutional grounds.” Notwithstanding the various legal bases of the motion, the
gravamen of defendant’s motion was that the advisement he received from the court was
deficient, and that he received ineffective assistance of counsel because his attorney did
not explain the immigration consequences of his plea. On appeal, the People argue there
is no legal or factual basis for the trial court’s ruling under any of these theories.
Defendant impliedly concedes that his claims for ineffective assistance of counsel,
request for coram nobis relief, and the “nonstatutory constitutional grounds” for his
motion are baseless, as he said nothing about these issues in his brief on appeal. Instead,
defendant simply argues that the “conditional” language of the section 1016.5 advisement
he received was inadequate. Finding no legal or factual basis for the trial court’s ruling,
under any theory, we reverse the order below.
I.     Sufficiency of the Immigration Advisement
       Penal Code section 1016.5, subdivision (a) requires the trial court, before
accepting a plea a guilty or no contest plea, to administer the following advisement on the
record: “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.” The purpose of the section 1016.5 advisement is to ensure that a
defendant is informed of the immigration consequences of a plea. It does not matter who
gives the advisement, and there is no requirement that the advisement be given orally. “It
is sufficient if . . . the advice is recited in a plea form and the defendant and his counsel



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are questioned concerning that form to ensure that defendant actually reads and
understands it.” (People v. Quesada (1991) 230 Cal.App.3d 525, 536.)
       A defendant may have his judgment of conviction vacated, and plea set aside, if he
did not receive the required statutory advisement. (Pen. Code, § 1016.5, subd. (b).) To
prevail on a motion brought pursuant to section 1016.5, subdivision (b), a defendant must
establish all of the following: (1) at the time of the plea, the trial court failed to advise
the defendant of the immigration consequences of the plea as provided in the statute;
(2) there exists, at the time of the motion, more than a remote possibility that the
conviction will have adverse immigration consequences; and (3) if properly advised, the
defendant would not have entered the plea. (People v. Totari (2002) 28 Cal.4th 876, 884;
People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) A defendant must
establish grounds for withdrawing a guilty plea by clear and convincing evidence.
(People v. Suon (1999) 76 Cal.App.4th 1, 4.)
       A motion to vacate the judgment and to set aside a plea “is directed to the trial
court’s sound discretion, and the reviewing court may not disturb the trial court’s order in
the absence of abuse of discretion. [Citations.]” (People v. Suon, supra, 76 Cal.App.4th
at p. 4; see also People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518; People v.
Chien (2008) 159 Cal.App.4th 1283, 1287.) There has been an abuse of discretion “if the
court acted ‘in an arbitrary, capricious or patently absurd manner resulting in a manifest
miscarriage of justice.’ [Citations.]” (People v. Suon, at p. 4.) Moreover, the trial
court’s discretion has been abused if there is no evidence to support the court’s decision.
(In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
       The trial court abused its discretion by granting the motion, because there is
absolutely no factual support for the trial court’s conclusion that defendant was not
properly advised under Penal Code section 1016.5. To the contrary, defendant signed
and initialed the plea form that contains the exact language required by section 1016.5.
Moreover, the prosecutor repeated the admonitions on the record in open court, and
defendant confirmed that he had signed and initialed the form, and understood its
contents. When defendant expressed vague reservations about the plea, the court directed

                                               7
him to further consult with his privately retained counsel. The court did not accept the
plea until after defendant conferred further with counsel and confirmed to the court that
he had no reservations about the guilty plea. We cannot imagine what more the court
could possibly have done to assure that defendant understood the immigration
consequences of the plea, and that defendant’s guilty plea was knowing and intelligent.
       There is no merit whatever to defendant’s contention that the conditional “if” and
“may” language of the statutory immigration advisement renders the advisement
ineffective. Defendant has not cited to any authority holding the legislatively approved
statutory advisement to be deficient. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v.
Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal argument with
citation of authorities on the points made. If none is furnished on a particular point, the
court may treat it as waived, and pass it without consideration. [Citations.]’ ”].)
       Moreover, defendant presented absolutely no admissible evidence that he would
not have entered the plea if he had been given a different explanation of the immigration
consequences of the plea. (People v. Totari, supra, 28 Cal.4th at p. 884; People v. Suon,
supra, 76 Cal.App.4th at p. 4.) The only evidence of adverse immigration consequences
that defendant presented was an unsworn declaration of defendant’s immigration counsel.
(See, e.g., Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 952-953 [letter not
signed under penalty of perjury lacked evidentiary value].)
II.    A Few Words on the Arguments Asserted in the Trial Court That Defendant
       Waived on Appeal
       A defendant’s right to the effective assistance of counsel includes an obligation on
the part of counsel to inform the defendant whether a plea carries a risk of deportation.
(See Padilla , supra, 559 U.S. at pp. 364-368.)
       Since there was no legal or factual basis for defendant’s motion, including no basis
for the claim that his counsel failed to advise him of the immigration consequences of his
plea, manifestly there is no basis for his claim of ineffective assistance. In any event, our
Supreme Court has held a defendant may not raise an ineffective assistance of counsel
claim as part of the statutory motion pursuant to section 1016.5. (People v. Kim (2009)

                                              8
45 Cal.4th 1078, 1108, fn. 20 [a claim for ineffective assistance of counsel “is not a
wrong encompassed by [section 1016.5].”].)
       A petition for writ of error coram nobis is not a proper vehicle by which to assert a
claim for ineffective assistance of counsel. (People v. Kim, supra, 45 Cal.4th at
pp. 1103-1104 [ineffective assistance of counsel claim is a mistake of law rather than a
mistake of fact, making it inappropriate for coram nobis relief].) Although ineffective
assistance of counsel may be raised by a petition for a writ of habeas corpus, defendant
was not in custody at the time of his motion and therefore was ineligible for habeas
corpus relief. (People v. Gallardo (2000) 77 Cal.App.4th 971, 987 [a claim of ineffective
assistance of counsel must be raised on appeal or in a petition for writ of habeas corpus];
see also People v. Villa (2009) 45 Cal.4th 1063, 1068-1072 [state court habeas corpus
relief unavailable when defendant is no longer in state custody; being in custody of
federal immigration authorities is not “custody” for purposes of habeas corpus relief].)
       Lastly, even if there was another constitutional basis for defendant’s motion under
the holding in Padilla, supra, Padilla does not apply retroactively to defendants whose
cases were already final on direct appeal. (Chaidez v. United States (2013) __ U.S. __
[133 S.Ct. 1103, 1105].)
                                     DISPOSITION
       The order is reversed.
                                                 GRIMES, J.


       WE CONCUR:

                     BIGELOW, P. J.



                     FLIER, J.




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