P. v. Valdes 6/25/02 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G027216

Case Date: 09/26/2002

Preview:Filed 6/25/02

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. RAFAEL ANGUIANO VALDES, Defendant and Appellant. G027216 (Super. Ct. No. 95SF0531) OPINION

Appeal from a postjudgment order of the Superior Court of Orange County, Kazuharu Makino, Judge. Dismissed. Law Offices of James C. Angleton and James C. Angleton for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Rafael Anguiano Valdes, a Mexican-born permanent resident of the United States, appeals from an order denying his petition for writ of

error coram nobis and motion to vacate judgment. This proceeding arose from defendant's 1995 felony guilty plea. Defendant contends the nature and temporal proximity of his crimes, combined with his failure to timely rehabilitate and the punishment ultimately imposed on him, renders the prospect of adverse immigration consequences a certainty for him. Thus, he argues the "pro forma warning" of "possible" consequences required by Penal Code section 1016.5 was inadequate and entitles him to vacate his plea and conviction. The Attorney General seeks dismissal of the appeal, arguing defendant could have raised this issue in earlier direct appeals. We agree and dismiss the appeal.

FACTS

In August 1995, defendant pleaded guilty in superior court to spousal battery, vandalism, assault, and battery, and admitted suffering a prior conviction for spousal battery. Before entering the plea, he initialed and signed a guilty plea form which contained a paragraph stating: "I understand that if I am not a citizen of the United States the conviction for the offense[s] charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." Defendant represented to the court that he "listened to [a Spanish language] interpreter going over th[e] guilty plea form with [him]." The court placed defendant on five years probation. Nineteen months later, after defendant admitted violating the terms of probation, the court revoked it and imposed a twoyear prison sentence. The United States Immigration and Naturalization Service served defendant with a notice that it was seeking his removal from the country based on his spousal battery conviction. Defendant asserts an immigration judge dismissed 2

this charge. Subsequently, the INS amended the notice to allege defendant was deportable because his spousal battery conviction and the resulting sentence constituted an aggravated felony which rendered him deportable. In November 1998, defendant filed motions pursuant to Penal Code section 1385 alternatively seeking to dismiss the charges or have the crimes declared misdemeanors. The court denied the requests. In 1999, defendant filed two unsuccessful petitions for habeas corpus. He also filed a petition for writ of error coram nobis, but the matter was taken off calendar before the court ruled upon it. Each of these requests expressly recognized the potential adverse immigration consequences to defendant resulting from his 1995 conviction. Defendant filed a second petition for a writ of error coram nobis and a motion to vacate the conviction under Penal Code section 1016.5 in March 2000. The superior court denied relief on the merits.

DISCUSSION

The Attorney General contends the present appeal should be dismissed. Respondent cites the general rule that no appeal lies from an order denying a motion to vacate a judgment of conviction (see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal,

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