In re: Azurin

• Decision Date: 18 January 2001
• Citation: 104 Cal.Rptr.2d 284
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 4 Dist. 2001) In re GREG AZURIN on Habeas Corpus. D034571 Filed

104 Cal.Rptr.2d 284 (Cal.App. 4 Dist. 2001)

In re GREG AZURIN on Habeas Corpus.

D034571

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Filed 1/18/01; pub order 2/14/01

APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Reversed.

(Super. Ct. No. CR107721)

ORDER MODIFYING OPINION AND DENYING REHEARING, CERTIFYING OPINION FOR PUBLICATION [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on January 18, 2001, be modified as follows: 1.At the end of the last sentence in the opinion on page 9, after the sentence ending "order is reversed," add as footnote 7 the following footnote: 7 This disposition is without prejudice to Azurin's filing a petition for error coram nobis in the superior court. (People v. Wiedersperg (1975) 44 Cal.App.3d 550.)

There is no change in the judgment. Respondent's petition for rehearing is denied. The opinion filed January 18, 2001, is ordered certified for publication.

The attorneys of record are: Paul J. Pfingst, District Attorney; Thomas F. McArdle and Stephen E. Carr, Deputy District Attorneys, for Plaintiff and Appellant. Richard P. Siref for Defendant and Respondent.

KREMER, P. J.

Copies to: All parties

KREMER, P. J.

The People appeal from the order of the superior court granting Greg Azurin's petition for a writ of habeas corpus permitting Azurin to withdraw his plea of guilty to discharging a firearm at an occupied motor vehicle. (Pen. Code, 246.)¹ The People contend the superior court lacked habeas jurisdiction because Azurin was assertedly not in state custody, either actual or constructive, at the time he filed his petition. We reverse the order.

I INTRODUCTION

Philippine citizen Azurin was a lawful permanent resident of the United States. In March 1990, without being advised by counsel that deportation proceedings would likely be initiated against him as a result of a guilty plea in this case, Azurin pleaded guilty (the "1990 conviction"). Azurin served a term at the California Youth Authority, successfully completed parole and was released from actual state custody.

In November 1998, several years after Azurin completed parole, the United States Immigration and Naturalization Service (INS) instituted deportation proceedings against Azurin based upon his 1990 conviction in this case for an aggravated felony.

In February 1999 Azurin petitioned the superior court for habeas corpus. In October 1999, after an evidentiary hearing, the court concluded defense counsel had rendered ineffective assistance at plea negotiations in this case in 1990 by not advising Azurin of the immigration consequences of his guilty plea.² (People v. Soriano (1987) 194 Cal.App.3d 1470, 1482; cf. People v. Barocio (1989) 216 Cal.App.3d 99.) Based upon that conclusion, the court granted Azurin's habeas petition and permitted Azurin to withdraw his guilty plea.

II DISCUSSION

The People contend the superior court lacked habeas jurisdiction since Azurin had completed parole and was thus no longer in constructive state custody under his 1990 conviction at the time he filed his petition. The People's contention tracks a similar allegation in their return to Azurin's petition. (In re Petersen (1958) 51 Cal.2d 177, 181; In re Wessley W. (1981) 125 Cal.App.3d 240, 246-247.) The court implicitly rejected the People's allegation in granting Azurin's habeas petition. However, because the court lacked habeas jurisdiction, the order must be reversed.

A The Law

"The writ of habeas corpus was developed under the common law of England '"as a legal process designed and employed to give summary relief against illegal restraint of personal liberty."' [Citations.] It continues to serve this purpose today under our law." (People v. Romero (1994) 8 Cal.4th 728, 736-737.) "Through a habeas corpus proceeding, a court may grant relief from various forms of constructive custody, as well as from physical restraints." (Id. at p. 737, fn. 3.) In that vein, in discussing section 1473, subdivision (a),³ an appellate court stated: "Although the normal function of the writ of habeas corpus as stated in section 1473 is to provide for those persons physically imprisoned, the decisional law of recent years has expanded the writ's application to persons who are determined to be in constructive custody. Today, the writ is available to one on parole, probation, bail, or a sentenced prisoner released on his own recognizance pending hearing on the merits of his petition. The thrust of these cases is that a person is in custody constructively if he may later lose his liberty and be eventually incarcerated." (In re Wessley W., supra, 125 Cal.App.3d at p. 246, citations omitted.)⁴

Federal habeas jurisprudence is similar. Thus, in Maleng v. Cook (1989) 490 U.S. 488, in discussing the federal habeas statute giving federal district courts jurisdiction to entertain petitions for habeas corpus "only from persons who are 'in custody in violation of the Constitution or laws or treaties of the United States,'" the Supreme Court observed it had "interpreted the statutory language as requiring that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed." (Id. at pp. 490-491.) The Supreme Court also observed that its "interpretation of the 'in custody' language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus. . . . [F]or example, we held that a prisoner who had been placed on parole was still 'in custody' under his expired sentence." (Id. at p. 491.) However, the Supreme Court further observed that it had never held that "a habeas petitioner may be 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." (Ibid.)

B Analysis

In exercising its original habeas jurisdiction granted by the state Constitution, the superior court '''must abide by the procedures set forth in Penal Code sections 1473 through 1508.'" (People v. Romero, supra, 8 Cal.4th at p. 737.) In that vein, section 1477 provides: "The writ must be directed to the person having custody of or restraining the person on whose behalf the application is made, and must command him to have the body of such person before the Court or Judge before whom the writ is returnable, at a time and place therein specified." Azurin's habeas petition alleged he was "unlawfully restrained of his liberty upon deportation proceedings" by the INS. Further, in his respondent's brief, Azurin asserts that after being arrested and placed in custody by the INS, he posted bond.⁵ However, the writ granted by the superior court was not directed to the INS and, indeed, could not properly have been so directed. (Gates v. Municipal Court (1992) 9 Cal.App.4th 45, 53 & fn. 3.) Instead, the writ was directed to the People of the State of California. As we shall explain, by not meeting his burden to show that when filing his habeas petition he was in actual or constructive state custody based upon his 1990 conviction, Azurin failed to satisfy the habeas jurisdictional requirements under California law. ( 1473, subd. (a); In re Wessley W., supra, 125 Cal.App.3d at pp. 246-247.)

Although his parole on the 1990 conviction has long since expired (cf. Allen v. State of Or. (9th Cir. 1998) 153 F.3d 1046, 1051 ["The State of Oregon has 'extracted its punishment and has no further interest in petitioner'"]), Azurin contends he nonetheless satisfied the jurisdictional requirements for habeas against the People under California statutory and case law. Specifically, Azurin effectively claims that at the time his habeas petition was filed, he was assertedly in constructive state custody under his 1990 conviction because he was in actual or constructive federal custody in INS deportation proceedings that were based solely upon the fact of such 1990 conviction. However, since the sentence imposed for Azurin's 1990 conviction had fully expired before he filed his habeas petition, we decline to expand the interpretation of the language of section 1473, subdivision (a) so as to reach a conclusion that Azurin was in California's "constructive custody" under the 1990 conviction simply because such conviction formed the basis for federal deportation proceedings including attendant federal custody.

Federal law is instructive on the meaning of "constructive custody." In Maleng v. Cook, supra, 490 U.S. 488, a case involving use of prior convictions to enhance sentences on subsequent convictions, the Supreme Court faced the question "whether a habeas petitioner remains 'in custody' under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted." (Id. at p. 492.) In giving a negative answer to that question, the Supreme Court stated, "While we have very liberally construed the 'in custody' requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction." (Ibid.) Further, in noting a different conclusion was not required even though in that case "the possibility of a sentence upon a subsequent conviction being enhanced because of the prior conviction actually materialized," the Supreme Court stated, "When the second sentence is imposed, it is pursuant to the second conviction that the petitioner is incarcerated and is therefore 'in custody.'" (Id. at pp. 492-493.)

Unlike the situation in Maleng v. Cook, supra, 490 U.S. 488, Azurin's case does not involve a second sentence. However, although any custody of Azurin under the deportation proceedings was apparently based solely on the "fact" of his 1990 conviction in California (Contreras v. Schiltgen (9th Cir. 1997) 122 F.3d 30, 32), during those...