Filed 11/20/15 P. v. Ramirez-Montenegro CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E062058

v. (Super.Ct.No. FWV700383)

EDGAR RAMIREZ-MONTENEGRO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash,

Judge. Affirmed.

Loleena Ansari, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Marilyn L.

George, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant and defendant Edgar Ramirez-Montenegro appeals from the trial court’s

order denying his motion to set aside his guilty plea admitting second degree robbery

1 (Pen. Code,1 § 211) and the allegation that he personally used a firearm in the course of

the offense (former § 12022.5 subd. (a)(1)).

The trial court sentenced defendant to a total term of four years: a three-year

midterm on the robbery count, plus a one-year enhancement for the firearm allegation.

Defendant, a noncitizen, argues the trial court should have ruled on his motion to

set aside the plea and vacate the judgment pursuant to section 1016.5. We disagree.

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2007, defendant was arrested and later charged with the armed

robbery of a Montclair liquor store that had occurred earlier in the week.

On March 19, 2007, with a certified Spanish interpreter present, defendant pled

guilty to the robbery and the firearm allegation. As part of his plea, defendant initialed,

signed, and dated a declaration (§ 859a; In re Tahl (1969) 1 Cal.3d 122) containing, in

relevant part, the following language: “I understand that if I am not a citizen of the

United States, deportation, exclusion from admission to the United States, or denial of

naturalization will result from a conviction of the offense(s) to which I plead guilty/nolo

contendere (no contest).” The interpreter certified that she translated into Spanish all of

the contents of the form. The trial court asked defendant on the record whether he had

interpreted for him from English into Spanish “all the handwritten and printed material”;

whether he understood “all [the] items”; whether his attorney “explained all [the] items”

to him; and whether he understood “the nature of the charges” and the “consequences of

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

2 [his] plea.” Defendant replied, “Yes.” When asked whether he was entering the plea

under compulsion or duress, defendant replied that he was not.

On May 25, 2007, defendant moved to have the guilty plea withdrawn pursuant to

section 1018 on the grounds that he was told his sentence would be three years rather

than four; that if he did not plead guilty, his family would be killed; and that he did not

know what he was signing. At a hearing on May 31, the trial court denied the motion,

finding that defendant had behaved and replied to the contrary when he entered the plea.

In 2014, defendant twice attempted to file in the trial court a motion to set aside

his plea and vacate the judgment pursuant to section 1016.5, which permits noncitizen

defendants to move a trial court to vacate a plea for its failure to provide the required

advisement of potential collateral immigration consequences under subdivision (a) of the

same section. In that motion, defendant noted that he was in federal custody for illegal

reentry after conviction of a felony (8 U.S.C. § 1326), and he claimed he was not

properly advised, either through his interpreter or through his attorney, of the collateral

immigration consequences of his plea. Both times, the trial court declined to hold a

hearing and returned the motion to defendant, noting the first time that it did not have

“jurisdiction, [because the] plea was entered in 2007,” and noting the second time that

defendant’s “remedy” was “appellate only.”

On October 2, 2014, defendant filed a notice of appeal from the trial court’s order

returning his motion. Defendant also filed the motion itself in this court; we treated it as

3 a petition for writ of habeas corpus and summarily denied on October 20, 2014. (Case

No. E062021.)

DISCUSSION

A threshold question confronts us here: how should we construe the trial court’s

return of defendant’s section 1016.5 motion based on “lack of jurisdiction” and his

subsequent appeal? Defendant contends we should treat the matter as a direct appeal

pursuant to section 1237. The People contend we should treat the matter a petition for

writ of error coram nobis. As discussed post, we will take an approach that differs from

both.

The recent case of People v. Aguilar (2014) 227 Cal.App.4th 60 (Aguilar)

confronted this same procedural issue under similar facts. Broadly speaking, the

approach Aguilar took was to evaluate what remedies were available to the defendant,

and then determine whether the defendant’s claims fit within any of those remedies.

Because we find Aguilar persuasive and instructive as to how we should resolve the

present case, we discuss Aguilar here at some length to explore its reasoning.

In Aguilar, the noncitizen defendant filed a motion to vacate his conviction and

withdraw his plea to illegal possession of a firearm. (Aguilar, supra, 227 Cal.App.4th at

pp. 64-65.) Similar to the present case, the trial court took the motion “off calendar, for

lack of jurisdiction,” and so declined to reach the merits of the defendant’s claims. (Id. at

p. 66.) As a result, the court noted that it (like us) was confronted with two procedural

choices on appeal: “either dismiss the appeal as premature in the absence of a ruling on

4 the merits of the motion, or review the trial court’s ruling [that it lacked jurisdiction to

reach the merits].” (Id. at p. 67.) The court refused to follow either choice: “[This is

not] the entire story[.] . . . We decline to do either, . . . because either would be

futile. . . . [E]ven with jurisdiction to hear the merits of Aguilar’s motion, the trial court

would lack discretion to grant the requested relief.” (Ibid.)

The court then examined all of the possible remedies an individual in defendant’s

position—that is, “[a] noncitizen who has been convicted of a felony based on a plea of

guilty or nolo contendere, but who claims that he was not advised on the immigration

consequences of [his] plea”—could seek: (1) a direct appeal from the judgment under

section 1237, “if the record reflects the facts on which the claim is based”; (2) filing a

motion pursuant to section 1016.5; (3) a petition for a writ of habeas corpus founded on

ineffective assistance of counsel. (Aguilar, supra, 227 Cal.App.4th at p. 68, fn. omitted.)

Although the court noted that coram nobis relief premised on ineffective assistance of

counsel “for failure to advise the defendant of the immigration consequences” of the plea

“cannot be used to challenge a conviction or withdraw the plea,” the court nevertheless

treated that remedy as “potentially available” to the defendant by evaluating it in the

opinion. (Ibid.)

As to treating the appeal as a direct appeal under section 1237, the court declined

to do so on the grounds, described post, that no remedy was available to the defendant.

(Aguilar, supra, 227 Cal.App.4th at p. 67.) (Villa) and determined that Aguilar was “ ‘ineligible as a matter of law’ ” because he had

fully served his sentence for his conviction and so was neither in “ ‘actual nor

constructive state custody.’ ” (Aguilar, supra, 227 Cal.App.4th at p. 68, citing and

quoting Villa.)

As to coram nobis relief, the court applied People v. Kim (2009) 45 Cal.4th 1078

(Kim) and determined that it too was unavailable to defendant: Coram nobis is extremely

limited; it is intended to correct vital errors of fact, rather than of law. The defendant’s

claims that his counsel had failed to adequately advise him of immigration consequences

involve only the legal effect of his guilty plea and may “ ‘have encouraged or convinced

him . . . to make different strategic choices or seek a different disposition’; they therefore

‘are not facts that would have prevented rendition of the judgment’ and are not grounds

for coram nobis relief.” (Aguilar, supra, 227 Cal.App.4th at pp. 69-70, citing and

quoting Kim.)

As to relief under section 1016.5, the court applied People v. Chien (2008) 159

Cal.App.4th 1283 and determined the trial court would have lacked discretion in any

event to provide that form of statutory relief: “To obtain that relief, a defendant must

demonstrate that . . . the court failed to advise the defendant of the immigration

consequences as provided by section 1016.5. . . . [¶] It is very likely that Aguilar’s

motion claimed primarily that his own counsel failed to advise him of the immigration

consequences of his plea, rather than that the trial court failed to do so, because the record

6 affirmatively indicates that the court gave the advice required by section 1016.5. . . . [¶]

Section 1016.5 addresses only the duty of trial courts to advise the defendant of the

immigration consequences of the plea. . . . [It] 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.” (Aguilar, supra, 227 Cal.App.4th at pp. 70-71, citing and quoting

Chien.)

Finally, in light of the United States Supreme Court’s opinion in Padilla v.

Kentucky (2010) 559 U.S. 356, the Aguilar court further considered how it should view

the claims in the defendant’s motion asserting lack of assistance from his counsel in

helping him to understand the immigration effects of his guilty plea. The court applied

People v. Shokur (2012) 205 Cal.App.4th 1398 and reasoned: “The fact that Aguilar’s

motion does not entitle him to relief under section 1016.5 does not end the inquiry. The

duties that defense counsel owes to a noncitizen criminal defendant client may be shown

to involve providing his or her client with counsel’s own advice as to the consequences of

a plea, even when the court has provided the advice required by section 1016.5. . . . [¶]

But the fact that Aguilar may be entitled to use any available remedy to seek relief from

what he claims was ineffective assistance of counsel does not mean that any particular

remedy is available to him for that purpose. (Aguilar, supra, 227 Cal.App.4th at p. 72.)

“Contrary to [the defendants’] interpretation of [Padilla,] it does not require states to

provide an avenue for noncitizens to challenge their convictions for having received

7 erroneous immigration advice when all available remedies have lapsed and no other

remedy remains available.” (Aguilar, at p. 74.)

The court determined from the record before it that none of those remedies were

available to the defendant, and the court affirmed the trial court’s order denying the

“defendant’s motion for want of jurisdiction.” (Aguilar, supra, 227 Cal.App.4th at p. 75.)

The approach taken in Aguilar strikes us as methodical, analytically sound,

promoting judicial economy, and permitting a fair evaluation of a noncitizen defendant’s

case; the appellate court ensures, first, that the trial court is not hearing a case in which it

has no power to grant relief and, second, that a subsequent and altogether fruitless appeal

will not be taken. Therefore, in cases where a trial court denied a noncitizen defendant’s

motion seeking, on grounds relating to collateral immigration consequences, to withdraw

his or her guilty plea and vacate the conviction; and where that denial was ordered

without the trial court reaching the merits of the noncitizen defendant’s motion; and

where the noncitizen defendant appeals that denial; an appellate court should look to the

record to see if any of the three applicable remedies discussed and evaluated in Aguilar—

habeas corpus, coram nobis, or section 1016.5—are available to the noncitizen defendant.

If the record reveals that none of those remedies are available to the noncitizen

defendant, then the appellate court should affirm the trial court’s order. If the record

reveals that one or more of those remedies is available, the appellate court should permit

the trial court to evaluate the motion accordingly in the first instance.

8 For habeas corpus jurisdiction to lie, a defendant must be “ ‘ “in prison or on

probation or parole or otherwise in constructive custody” ’ ” of the State of California,

and “ ‘ “lingering noncustodial collateral consequences” ’ ” do not satisfy that

requirement; federal custody likewise does not satisfy that requirement. (Villa, supra, 45

Cal.4th at pp. 1070-1071; see Aguilar, supra, 227 Cal.App.4th at pp. 64, 68.) Coram

nobis relief generally is available where a defendant alleges “newly discovered facts

[establishing] a basic flaw that would have prevented rendition of the judgment. (Kim,

supra, 45 Cal.4th at p. 1103) The rule has long been that “a claim of ineffective

assistance of counsel, which relates more to a mistake of law than of fact, is an

inappropriate ground for relief on coram nobis.” (Id. p. 1104; see Aguilar, at pp. 64, 69-

70.) Statutory relief under section 1016.5 may be granted where a noncitizen defendant

demonstrates that the court failed in its statutory duty to advise the defendant of the

immigration consequences of his or her plea. (People v. Totari (2002) 28 Cal.4th 876,

884.) However, defense counsel’s failure in its duty to apprise the defendant of the

precise nature of those immigration consequences is not cognizable under section 1016.5.

(Chien, supra, 159 Cal.App.4th 1283, 1288; see Aguilar, at p. 71.) A court may rely on a

validly initialed and executed Tahl form as a proper method of imparting section 1016.5’s

required admonishment. (E.g., People v. Gutierrez (2003) 106 Cal.App.4th 169, 174-

175; People v. Panizzon (1996) 13 Cal.4th 68, 83.) For claims addressing interpreter

competence, interpreter certification “ ‘is simply foundational to the interpreter’s

competence,’ ” and “ ‘[t]here is no right…to a certified interpreter. There is only a right

9 to a competent interpreter.” (People v. Superior Court (Almaraz) (2001) 89 Cal.App.4th

1353, 1359; People v. Estrada (1986) 176 Cal.App.3d 410, 415.)

Here, none of the three applicable remedies is available to defendant. As to state

habeas relief based on ineffective assistance of counsel, defendant is currently held in

federal custody. Defendant’s motion states that it is filed pursuant to section 1016.5 for

the trial court’s failure to give the required advisement, but its substance also argues that

his Spanish interpreter and his defense counsel in 2007 failed to properly apprise him of

any immigration consequences. To the extent his motion seeks statutory relief under

section 1016.5, the record reveals defendant initialed and signed the Tahl form, which

included the advisement that his conviction would certainly result in adverse immigration

consequences, including removal from the United States. The record further reveals that

the trial court verified orally whether defendant understood the contents of the Tahl form,

and that a certified Spanish interpreter declared that she translated the entire form from

English into Spanish. The record thus sufficiently reveals that the trial court fulfilled its

statutory duty under section 1016.5. As to defendant’s claims that his counsel and his

interpreter were ineffective, they go to his ability to understand the legal effects of his

plea—they do not go to the ability of the trial court to render judgment. For that reason,

his claims are unsuitable for coram nobis relief.

Defendant contends we should treat his appeal of the trial court’s return of his

motion as a direct appeal under section 1237 requiring de novo review. The trial court

did not give defendant a required hearing on his section 1016.5 motion, thus resulting in a

10 violation of his right to procedural due process. Relying on Chien, defendant further

contends the record reveals the trial court did not give the required advisement, because

the trial court only verified that defense counsel and the certified interpreter had

adequately explained to defendant the immigration consequences of his plea—the court

did not itself give the required advisement, and defendant stated that the interpreter “did

not translate any information regarding immigration consequences.”

As our discussion ante illustrates, a trial court may rely on a validly executed Tahl

form as a way of giving section 1016.5’s required advisement, and the Tahl form here

contained the required statutory language; all Chien held was that the record must show

the trial court failed to give the defendant the section 1016.5 advisement before relief

under that statute could be sought (Chien, supra, 159 Cal.App.4th at pp. 1287-1288),

which the record here, by virtue of the signed and initialed Tahl form, does not do. The

trial court in this case thus actually went above and beyond what is statutorily required of

it to any extent it orally verified that defendant understood any immigration consequences

of his plea. Taking at face value defendant’s contentions that the interpreter did not

translate any information regarding immigration consequences and that his counsel

similarly failed to discuss with him the nature of those consequences, the state of the

record belies those contentions: the Spanish interpreter was certified; the interpreter

declared she had fully translated the contents of the Tahl form to defendant, including the

immigration advisement; defendant offers no evidence—only his own contrary

assertion—that would call into question the interpreter’s competence or any presence of

11 bias; defendant indicated to the trial court that his attorney had discussed with him all of

the items on the Tahl form; and defendant further indicated he was not then under any

compulsion or pressure to make the plea. Finally, as our discussion ante illustrates, even

were we to determine under fully de novo review of a direct appeal that the trial court did

err in concluding it had no jurisdiction to hear defendant’s motion, that course of action

would emptily consume time and judicial resources, because there is no remedy within

the trial court’s power to grant.

In sum, following the approach described in Aguilar, the record reveals that no

remedy is available to defendant, because the trial court gave the advisement required

under section 1016.5 by way of the Tahl form; defendant’s claims do not fit the

framework for coram nobis by calling into question any facts that would have prevented

the trial court from rendering a judgment; and defendant cannot avail himself of a writ of

habeas corpus, as he is not in state custody.

DISPOSITION

The order of the trial court is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

KING

J.

MILLER

J.

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