People v. Figueroa, F052920 (Cal. App. 4/29/2008)
| Decision Date | 29 April 2008 |
| Docket Number | F052920 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. VERONICA AGUILAR FIGUEROA, Defendant and Appellant |
Appeal from a judgment of the Superior Court of Tulare County, No. VCF045296, Darryl B. Ferguson, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
In August 1999, appellant Veronica Aguilar Figueroa pled no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)),1 a felony, and misdemeanor battery (§ 242). In September 1999, the court placed appellant on three years' probation.
In November 2002, the probation officer filed a report stating that appellant had satisfactorily completed the terms of her probation. In January 2003, the court, pursuant to section 1203.4, ordered appellant's pleas withdrawn and dismissed the offenses.
In February 2007, appellant filed a "NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT ...." She sought relief on the grounds that she was denied her right to effective assistance of counsel prior to her plea. In March 2007, following a hearing, the court denied the motion. The instant appeal followed.
On appeal, appellant contends the court abused its discretion in denying appellant's motion to vacate the judgment (motion to vacate). We will affirm.
On June 13, 1999, appellant was in a Wal-Mart store when a store employee observed appellant place a small purse and 11 items of jewelry in her own purse and "attempt[] to leave ... the store without paying for the items." The employee "made contact" with appellant, who "began to run ...." Eventually several store employees were able to "restrain" appellant, handcuff her and take her to an office inside the store.
Appellant told investigating police officers that "she entered [the store] with the intent to steal a purse."
Appellant entered her plea in the instant case on August 6, 1999. Prior to appellant entering her plea, the court advised appellant, pursuant to section 1016.5, as follows: "If you're not a citizen of the United States your plea of guilty or no contest could result in your being deported from the United States, denied readmission, naturalization and permanent residency."3
Appellant filed her motion to vacate on February 20, 2007. In a declaration filed in support of that motion, appellant's counsel, Rudy Banuelos, averred as follows: appellant's 1999 burglary conviction "makes [her] deportable under the federal immigration laws"; appellant "will be deported"; "[t]hese consequences are not theoretical; they are real"; appellant "is presently undergoing removal (deportation) proceedings"; and a "master calendar hearing" in those proceedings was scheduled for March 1, 2007. Attached to this declaration, as an exhibit, was a copy of an Immigration and Naturalization Service "Notice to Appear," dated November 22, 2006, stating that appellant was "deportable" for the following reasons: she was not a citizen or national of the United States; she was a native and a citizen of Mexico; she was admitted to the United States as a lawful permanent resident on July 24, 1996; and she was convicted of burglary on or about June 13, 1999. The notice further states that appellant is "subject to removal from the United States" under federal law because she had been convicted of a crime involving "moral turpitude" for which a sentence of more than one year could be imposed, and she had suffered this conviction "within five years after admission [to the United States]."
In her own declaration filed in support of the motion to vacate, appellant averred as follows: at the time of her plea she was "not informed of the immigration consequences of [her] plea"; she "was never advised that [she] would in fact be deported if [she] admitted the [1999 burglary] charge"; she "recall[ed] the judge stating something about immigration, but [her] attorney never did"; at the time of her conviction she had been a "legal resident" for three years; her entire family, i.e., her parents, brothers and sisters, were either United States citizens or "Legal Permanent Residents"; she had no family in Mexico; she had grown up in the United States and "[knew] no other place as home"; at the time of her plea she "did not know that [she] could have plea-bargained for some other disposition"; she "would have gladly paid a higher fine, or done more time in custody"; and "[i]f [she] had been aware of the consequences [she] would not have [pled] to a crime involving moral turpitude rendering [her] deportable."
As indicated above, in her memorandum of points and authorities in support of her motion to vacate, appellant argued that under federal law, her burglary conviction made her "absolutely deportable"; her attorney did not inform her of this "drastic immigration consequence[]" prior to her plea; she would not have pled no contest had she known of this consequence; and therefore she was denied her right to the effective assistance of counsel, regardless of "whether or not the court faithfully delivers Section 1016.5's mandated advisements."
At the hearing on the motion to vacate the court stated:
At that point, attorney Banuelos indicated he wished to "make a comment," and the following colloquy took place:
Appellant contends the court abused its discretion in denying her motion to vacate because (1) the court based its ruling entirely on its compliance with section 1016.5 and specifically declined to consider appellant's claim of ineffective assistance of counsel, and thereby applied an incorrect legal standard; (2) appellant's no contest plea was neither voluntary nor intelligent because she did not know that as a result of her plea she would in fact be deported; (3) the court affirmatively misadvised appellant of an important consequence of her plea by implying that deportation was only a possible consequence of her plea, and not a certainty; and (4) she was denied her constitutional right to the effective assistance of counsel because her counsel failed to do the following: "correct the court's misrepresentation" that deportation was a mere possibility and not a certainty, "investigate and research" the immigration consequences of appellant's plea and negotiate a plea to an offense that would not result in automatic deportation.
Each of points (1), (2), (3) and (4) above is premised on 8 U.S.C. section 1227, subdivision (a)(2)(A)(i), which provides, in relevant part, that "[a]ny alien" who, within five years "after the date of admission," is convicted of a crime is "deportable" if the crime "involv[es] moral turpitude" and is one "for which a sentence of one year or longer may be imposed." Appellant is "deportable" under this statute, she asserts, because (1) she was lawfully admitted to the United States in 1996 and thus her 1999 burglary conviction occurred within five years of her "admission," and (2) burglary is a crime of moral turpitude "because it was committed by entering with intent to commit theft (see, e.g., Cuevas-Gaspar v. Gonzales (9th Cir. 2005) 430 F.3d 1013, 1019-1020) ...." Relying on a number of federal authorities, appellant further argues that deportation for a person made "deportable" under the statute discussed above is "essentially certain" and "automatic" (United States v. Couto (2d Cir. 2002) 311 F.3d 179, 190); the court, in advising appellant that she "could" be deported implied deportation was merely a possibility; "[t]here is a clear difference ... between facing possible deportation and facing certain deportation" (INS v. St. Cyr (2001) 533 U.S. 289, 325); and therefore the court's advisement regarding the immigration consequences of appellant's plea was misleading. However, as we explain below, we need not address the merits of this claim because appellant has not met one of the fundamental requirements for the issuance of writ of error coram nobis.
We treat appellant's motion to vacate as a petition for writ of error coram nobis (coram nobis petition). (People v. Dubon (2001) 90 Cal.App.4th 944, 950 []; accord, People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.)
A coram nobis petition "`is generally used to bring factual errors or omissions...
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