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                                                  15 of 17 DOCUMENTS

            THE PEOPLE, Plaintiff and Respondent, v. JESUS ARELLANO--LANDA, Petitioner and
                                               Appellant.

                                                         H028991

                    COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT


                                           2006 Cal. App. Unpub. LEXIS 6138

                                                    July 17, 2006, Filed

NOTICE:    [*1]    NOT TO BE PUBLISHED                           will not lie because his complaint is, at its core, about
IN OFFICIAL REPORTS. CALIFORNIA RULES                            ineffective assistance of counsel, which is not reviewable
OF COURT, RULE 977(a), PROHIBIT COURTS                           on coram nobis. Moreover, even if we were to construe
AND PARTIES FROM CITING OR RELYING ON                            petitioner's application for relief as a petition for writ of
OPINIONS NOT CERTIFIED FOR PUBLICATION OR                        habeas corpus, he would not be entitled to relief: a writ
ORDERED PUBLISHED, EXCEPT AS SPECIFIED                           of habeas corpus will not lie because, even though he is
BY RULE 977(B). THIS OPINION HAS NOT BEEN                        in custody, he is not in state custody on his 1996 plea. (In
CERTIFIED FOR PUBLICATION OR ORDERED                             re Azurin (2001) 87 Cal.App.4th 20.)
PUBLISHED FOR THE PURPOSES OF RULE 977.
                                                                     Reluctant to endorse so harsh a result on these facts,
                                                                 we requested supplemental briefing on the immigration
PRIOR HISTORY: Santa Clara County Super. Ct. No.
                                                                 consequences of petitioner's plea, the availability of other
189718.
                                                                 avenues of relief, and policy reasons for and against ju-
                                                                 dicial expansion of the coram nobis remedy. We now
JUDGES: McAdams, J.; Bamattre--Manoukian, Acting
                                                                 conclude that footnote 7 of In re Azurin, supra, 87
P.J., Duffy, J. concurred.
                                                                 Cal.App.4th at page 27 [*3] is too slim a read on which
                                                                 to hang a wholesale revision of coram nobis jurispru-
OPINIONBY: McAdams
                                                                 dence and that the policy reasons favoring the creation of
                                                                 a remedy are best addressed by the Legislature. We also
OPINION:
                                                                 hold that the denial of petitioner's recusal motion is not
    Jesus Arellano--Landa appeals from the trial court's         an appealable order. Therefore, we affirm.
May 23, 2005 denial of his petition for writ of error coram
                                                                     HISTORICAL AND PROCEDURAL FACTS n1
nobis and his motion to recuse the Santa Clara County
Superior Court bench. He is a citizen of Mexico and a
                                                                           n1 This summary is drawn primarily from the
legal resident alien of the United States. His wife and two
                                                                       allegation of petitioner's writ petition and is sup-
children are American citizens. He is in the custody of
                                                                       plemented by references to the minute orders and
the Department of Homeland Security, Immigration and
                                                                       probation report filed at the time of the 1995--1996
Customs Enforcement Unit (ICE), housed at the Yuba
                                                                       proceedings.
County Jail, awaiting a hearing on removal proceedings
aimed at deporting him to Mexico. In essence, he claims
he and his family would not now be in this predicament
                                                                 Charges, Conviction and Sentence
if his attorney had properly researched and advised him
of the immigration consequences of his July 11, 1996 ne-             On May 9, 1995, police were notified by a social
gotiated plea [*2] to unlawful sexual intercourse with a         worker that a 12--year--old girl, eight to 10 weeks preg-
minor (his wife of 10 years), or if the judge who took his       nant, had been seen at a Kaiser hospital. The girl identified
plea and sentenced him had known that he had not been            her boyfriend as 15- -year--old Jesus Arrellano--Landa. She
properly advised and was therefore entering an unknow-           had met him at her aunt's house. She said they had engaged
ing, unintelligent and involuntary plea.                         in sexual activity two or three times.
    The Attorney General responds that even if peti-                The girl's parents were contacted. The mother con-
tioner's allegations are all true, a writ of coram nobis         firmed that her daughter had been seeing petitioner for
                                                                                                                    Page 2
                                          2006 Cal. App. Unpub. LEXIS 6138, *4


[*4] several months. The father reported that he had spo-       looks back on his conduct as an enormous mistake but
ken to petitioner and marriage arrangements were under-         knows he must take responsibility for his behavior and
way. Neither parent wanted petitioner to be prosecuted.         thus married [his wife] as soon as he could. He states it is
The aunt was contacted and identified the boyfriend as           not uncommon for very young girls to marry in Mexico
petitioner, who was in fact 26.                                 and the petitioner does not view his relationship with [his
                                                                wife] as particularly unusual. The [petitioner] admits his
    Petitioner was interviewed on May 10, 1995. He re-
                                                                life is difficult but has no regrets over having a child and
ported that he believed the girl was 15 years old and did
                                                                is hoping his relationship with [his wife] will continue
not know her real age. He was remorseful and stated that
                                                                to grow. He would like to see [her] return to school and
he was prepared to marry the girl and assume all financial
                                                                hopefully they can participate in both counseling and par-
responsibility for her and their baby.
                                                                enting classes together."
    On June 2, 1995, petitioner was charged with a viola-
                                                                    The probation report noted that petitioner "is a resi-
tion of Penal Code n2 section 288, subdivision (a), lewd
                                                                dent alien having arrived in the United States from Mexico
act with a child under 14.
                                                                eleven years ago" when he was 16 years old. The proba-
                                                                tion officer concluded [*7] that "in the opinion of all the
         n2 All further statutory references are to the
                                                                parties involved, an adequate solution has been achieved.
      California Penal Code unless otherwise indicated.
                                                                The undersigned officer concurs there is little to be gained
                                                                by incarcerating the petitioner at this point."
    On July 18, 1995, petitioner and the girl were married
                                                                    On September 9, 1996, petitioner admitted paternity
in Mexico. Their son was born on December 23, 1995.
                                                                of his wife's child in open court. Count 1 was dismissed
    On July 11, 1996, the information was amended to            and petitioner was placed on probation as promised with
add a second count of unlawful sexual intercourse with a        total credit for time served of seven days. The court ad-
minor, in violation of section 261.5, subdivision (d). n3       vised petitioner of the immigration consequences of his
Pursuant [*5] to a negotiated disposition, on that day (July    plea. n4 On September 19, 1996, petitioner executed a
11, 1996) petitioner entered a no contest plea to count 2.      declaration regarding paternity in which he averred that he
Count 1 was to be dismissed. Petitioner was informed that       and his wife were currently married and residing together,
he would be placed on three years felony probation on the       and that he acknowledged full paternity and responsibility
conditions, inter alia, that he attend parenting classes and    for his son.
report to family support regarding paternity and child sup-
port, and that there would be no reduction of the charge                  n4 In his supplemental brief, petitioner states
to a misdemeanor during the probationary term.                        that he was properly admonished by the court.

          n3 Section 261.5, subdivision (d) provides:
                                                                    On August 17, 2000, the court granted petitioner's mo-
      "Any person 21 years of age or older who engages
                                                                tion to expunge his conviction pursuant to section 1203.4.
      in an act of unlawful sexual intercourse with a mi-
      nor who is under 16 years of age is guilty of either
                                                                Immigration Consequences
      a misdemeanor or a felony, and shall be punished
      by imprisonment in a county jail not exceeding one            In a verified petition for writ of error coram nobis [*8]
      year, or by imprisonment in the state prison for two,     filed in the superior court on May 13, 2005, petitioner
      three, or four years."                                    made the following averments. On September 5, 2004, he
                                                                was detained by the Department of Homeland Security at
                                                                Oakland International Airport when he returned from a
    Prior to petitioner's sentencing date of September 9,
                                                                brief trip to Mexico. His detention was triggered by the
1996, petitioner's wife was interviewed by the probation
                                                                reference to his July 1996 conviction in the government
officer via telephone at her home in Hollister, California,
                                                                database. Initially permitted to remain free on immigra-
where she lived with petitioner, her [*6] eight-     -month--
                                                                tion "parole," his parole was revoked on November 4,
old son, and her sister--in--law. She said "she is very happy
                                                                2004. The charging document accompanying the revoca-
and would not change any of what has occurred. She in-
                                                                tion alleged that petitioner was a Mexican citizen who,
dicates the petitioner is a good husband and father and
                                                                on December 1, 1990, was granted lawful permanent res-
provides for them adequately. . . . [P] [She] wishes the
                                                                idence in the United States, and who, on September 9,
Court would 'forget about everything' as she feels there is
                                                                1996, was convicted of the felony offense of unlawful
no need for anyone to be involved in their lives."
                                                                sexual intercourse in violation of section 261.5. "On the
    Petitioner was also interviewed. He "indicates he           basis of the foregoing," the document "charged" that peti-
                                                                                                                    Page 3
                                            2006 Cal. App. Unpub. LEXIS 6138, *8


tioner was "subject to removal from the United States pur-            fective September 30, 1996 and partly effective
suant to . . . Section 212(a)(2)(A)(i)(I) of the Immigration          April 1, 1997), "[e]ven those convicted of aggra-
and Nationality Act, as amended, in that [petitioner is] an           vated felonies could apply for equitable relief, un-
alien who has been convicted of . . . acts which constitute           less they had served five years or more in prison.
the essential elements of a crime involving moral turpi-              . . . [P] The 1996 laws make the immigration con-
tude. . . ." He was ordered to appear before an immigration           sequences of a criminal conviction more certain
judge on a date to be [*9] set.                                       and more severe. . . . [They] dramatically expanded
                                                                      the definition of 'aggravated felony,' increased the
    Petitioner alleges that he was taken into custody with-
                                                                      number of persons 'convicted' by eliminating the
out bail by the immigration court on March 21, 2005. He
                                                                      requirement that jail time be actually served, and
remains incarcerated at the Yuba County Jail while he
                                                                      reduced the minimum sentence that must be im-
awaits a hearing on his removal case. He is still married
                                                                      posed to trigger removability. In effect, the INS may
to his wife, and they have a second child born in 2000.
                                                                      now remove noncitizens, including LPRs [legal
   He did not become aware of the dire immigration                    permanent residents] regardless of their ties to the
consequences of his plea until he was denied reentry on               United States, even if they committed the remov-
September 5, 2004.                                                    able offense years ago." (McDermid, Deportation
                                                                      is Different: Noncitizens and Ineffective Assistance
     Before entering his plea he asked his retained attor-
                                                                      of Counsel (2001) 89 Cal. L.Rev. 741, 743-     -744.)
ney about the potential immigration consequences of the
plea. This was "of paramount importance to him" as he                     Determining the actual effect of the AEDPA
was a lawful permanent resident of the United States, his             and the IIRIRA on petitioner here is a more dif-
wife was a United States citizen by birth, and "his en-               ficult task, and we invited the parties to brief this
tire family had legal status." His attorney told him "that            question. Petitioner maintains that because AEDPA
he did not have to worry about any adverse immigration                eliminated discretionary relief from deportation
consequences as a result of the plea. Counsel informed                that had formerly existed under section 212(c) of
petitioner that on occasion he referred matters to an im-             the INA before he entered his plea, and because
migration attorney for an opinion, but that in this case, it          retroactive provisions of the IIRIRA converted his
would not be necessary, as counsel knew that there could              crime into an aggravated felony, he is not eligible
not be any adverse immigration consequences." Thus as-                for the relief that was made available to some alien
sured, petitioner agreed to the negotiated disposition.               residents when the United States Supreme Court
                                                                      decided, in INS v. St. Cyr (2001) 533 U.S. 289,
    Later, after petitioner was sentenced, his attorney sent
                                                                      150 L. Ed. 2d 347 (St. Cyr), that the provisions of
him a letter [*10] confirming, in petitioner's mind, that
                                                                      the IIRIRA which entirely repealed section 212(c)
he need not fear adverse immigration consequences. The
                                                                      could not be applied retroactively to persons who
attorney wrote: "This then concludes your matter, and as
                                                                      entered their pleas of guilty prior to the AEDPA
long as you do everything asked of you by the Probation
                                                                      and the IIRIRA.
Department, you will have no further problems."
                                                                         The Attorney General, apparently under the
    Petitioner alleges that in fact, at the time he entered his
                                                                      misapprehension that petitioner entered his plea in
plea on July 11, 1996, "an alien convicted of an aggravated
                                                                      1995, prior to the effective date of the AEDPA, ar-
felony offense was subject to mandatory removal without
                                                                      gues that petitioner benefits from the holding in St.
any available relief." If his plea had been entered prior
                                                                      Cyr and therefore is eligible for discretionary relief
to April 24, 1996, petitioner would have been eligible
                                                                      under former section 212(c).
for relief under former section 212(c) of the Immigration
and Nationality Act (INA). However, on April 24, 1996,                    As we see it, the answer is less obvious, and
that section was repealed and replaced by a new form of               may depend on facts which are not part of the record
relief for which he was not eligible because he had been              on appeal. Prior to AEDPA, "Congress amended §
convicted of an aggravated felony, namely sexual abuse                212(c) to preclude from discretionary relief anyone
of a minor. n5                                                        convicted of an aggravated felony who had served
                                                                      a term of imprisonment of at least five years." (St.
          n5 As a general matter, prior to the passage                Cyr, supra, 533 U.S. at p. 297.) With AEDPA,
      of the Antiterrorism and Effective Death Penalty                Congress "barred review for individuals ordered
      Act of 1996 (AEDPA) (effective April 24, 1996)                  deported because of a conviction for an aggravated
      and the Illegal Immigration Reform and Immigrant                felony" and certain other convictions and law vio-
      Responsibility Act of 1996 (IIRAIRA) (partly ef-                lations. (Id. at p. 297, fn. 7.)
                                                                                                               Page 4
                                    2006 Cal. App. Unpub. LEXIS 6138, *10


    Even after AEDPA, unlawful sexual intercourse                 at p. 892.) We conclude that regardless of whether
was not classified as an "aggravated felony." It                   petitioner's offense made him deportable, he may
was, however, a crime involving "moral turpitude."                well receive the benefit of St. Cyr as a matter of
(Bendel v. Nagle (9th Cir. 1927) 17 F.2d 719.) A                  ICE policy (barring a change in that policy) or as a
single crime of moral turpitude rendered an alien                 matter of equal protection.
deportable, although still eligible for discretionary
relief, if (a) the crime was committed within five         [*11]
years after the person's lawful admission to the
                                                              In his own declaration supporting the petition, peti-
United States and a sentence of one year or more
                                                          tioner avers that "[t]here is no way I would have pleaded
could be imposed. (INA § 237(a)(2)(A)(i); 8 U.S.C.
                                                          guilty if I knew this was going to happen. [P] . . . [P] I
§ 1227(a)(2)(A)(i)(I)(II) [criteria for inadmissibil-
                                                          would have insisted that my lawyer raise all legal chal-
ity].)
                                                          lenges and said ['T]hen, fight this all the way.[']"
    The IIRIRA added "sexual abuse of a minor"
                                                              APPELLATE CONTENTIONS
to the list of "aggravated felonies." (8 U.S.C. §
1101(43)(A).) This part of the IIRIRA is retroac-              Relying principally on People v. Wiedersperg (1975)
tive. (St. Cyr, supra, 533 U.S. at pp. 319-     -320.)    44 Cal.App.3d 550, 118 Cal. Rptr. 755 and In re Azurin,
Thus, petitioner's crime retroactively became an          supra, 87 Cal.App.4th at pages 26 through 27 and footnote
"aggravated felony" which, under AEDPA, made              7, petitioner argues that the trial court's summary denial
petitioner ineligible for section 212(c) relief.          of his petition for writ of error coram nobis is an appeal-
                                                          able order, that the court abused its discretion in failing
    The IIRIRA also repealed section 212(c) in its
                                                          to hold an evidentiary hearing, and that on the merits he
entirety. However, St. Cyr held that the repeal of
                                                          is entitled to vacation of his plea. Relying primarily on
section 212(c) was not retroactive as to persons, like
                                                          People v. Gallardo (2000) 77 Cal.App.4th 971, 982--983,
St. Cyr, whose pre--AEDPA guilty plea rendered
                                                          (overruled on other grounds in People v. Totari (2002)
him subject to deportation but "eligible for a dis-
                                                          28 Cal.4th 876, 887), the Attorney General rejoins that
cretionary waiver of that deportation under the pre-
                                                          because petitioner's claim is fundamentally one of ineffec-
vailing interpretation of § 212(c)." (St. Cyr, supra,
                                                          tive assistance of counsel, and since coram nobis will not
533 U.S. at pp. 314--315.) This is because "IIRIRA's
                                                          lie to review a claim of ineffective assistance, petitioner's
elimination of any possibility of a § 212(c) relief
                                                          [*12] appeal should be dismissed as frivolous. Further,
for people who entered into plea agreements with
                                                          he argues that the trial court did not abuse its discretion
the expectation that they would be eligible for such
                                                          in denying the petition without a hearing because at best
relief clearly ' "attaches a new disability, in respect
                                                          petitioner can only show a mistaken belief about the im-
to transactions or considerations already past." ' "
                                                          migration consequences of his plea, and not a mistake
(Id. at p. 321.)
                                                          of fact that would have prevented the court from render-
    The Ninth Circuit Court of Appeal has held that       ing judgment. Finally, relying primarily on post--Azurin
St. Cyr does not apply to persons who pleaded guilty      cases of People v. Miranda (2004) 123 Cal.App.4th 1124
to deportable crimes that were later reclassified as       and People v. Gutierrez (2003) 106 Cal.App.4th 169, the
aggravated felonies after the AEDPA but before the        Attorney General maintains that Azurin does not autho-
IIRIRA, because those persons knew that if their          rize the use of coram nobis to reach ineffective assistance
crimes were ever reclassified as aggravated felonies       of counsel claims.
they would not be eligible for section 212(c) relief.
                                                              DISCUSSION
(United States v. Velasco--Medina (9th Cir. 2002)
305 F.3d 839; Alvarez--Barajas v. Gonzales (9th
                                                          Appealability
Cir. 2005) 418 F.3d 1050.) However, in Cordes v.
Gonzales (9th Cir. 2005) 421 F.3d 889, a divided              A trial court's denial of a coram nobis petition is an
panel held that a person who pleaded guilty to a          appealable order. (People v. Dubon (2001) 90 Cal.App.4th
non- -deportable offense after the AEDPA but before       944, 950; People v. Totari, supra, 28 Cal.4th at p. 887.) "In
the IIRIRA was entitled to relief under St. Cyr as        an appeal from a trial court's denial of an application for
a matter of equal protection, because the ICE (for-       the writ of error coram nobis, a reviewing court initially
merly the INS) had been giving the benefit of St.          determines whether [petitioner] has made a prima facie
Cyr to people who had pleaded guilty post--AEDPA          showing of merit; if not, the court may summarily dismiss
and pre--IIRIRA to deportable offenses that were          the appeal." (People v. Totari, supra, 28 Cal.4th at p. 885,
later reclassified as aggravated felonies. (421 F.3d       fn. 4.) [*13] On the merits, an appellate court reviews
                                                                                                                        Page 5
                                          2006 Cal. App. Unpub. LEXIS 6138, *13


the trial court's denial of a petition for writ of error coram   writ of mandate, holding that since no judgment had been
nobis for abuse of discretion. (People v. Superior Court         entered, Giron's motion was governed by section 1018,
(Zamudio) (2000) 23 Cal.4th 183, 192; People v. Ibanez           which provides for the withdrawal of a guilty plea be-
(1999) 76 Cal.App.4th 537, 544.) In this case, the trial         fore judgment on a showing of good cause. The court
court did not reach the merits of petitioner's claim, but        explained that "[t]he situation in the instant case is one
decided in essence that petitioner had not made a prima          in which the court was properly vested with discretion to
facie showing of merit. In our view, petitioner may appeal       grant or to deny the motion after considering all factors
the trial court's order to review whether the court's order      necessary to bring about a just result. We would not neces-
denying the petition is correct.                                 sarily conclude that a court abused its discretion if it either
                                                                 granted or denied a motion to set aside a plea of guilty
Coram Nobis v. Habeas                                            on evidence that an accused was or was not [*16] aware
                                                                 of the possibility of deportation . . . . When, as here, the
    A writ of error coram nobis is a type of motion to va-
                                                                 accused entered his plea of guilty without knowledge of
cate the judgment, and "[f]or better or worse, the terms . . .
                                                                 or reason to suspect severe collateral consequences, the
are often used interchangeably and the two procedures are
                                                                 court could properly conclude that justice required the
similar in scope and effect." (People v. Gallardo, supra,
                                                                 withdrawal of the plea on motion therefore." (People v.
77 Cal.App.4th 971, 982.) A writ of error coram nobis
                                                                 Superior Court (Giron), supra, 11 Cal.3d at p. 798.) The
is generally used to bring factual errors or omissions to
                                                                 court further noted that the trial court's reliance on People
the court's attention. "A writ of error coram nobis may be
                                                                 v. Savin (1940) 37 Cal.App.2d 105, an appeal from an
granted when three requirements are met: (1) petitioner
                                                                 order granting a petition for a writ of error coram nobis,
has shown that some fact existed which, without fault of
                                                                 was not misplaced. "It was held in Savin that where an
his own, was not presented to [*14] the court at the trial on
                                                                 extrinsic fact operated so as to cause an over-  -reaching of
the merits, and which if presented would have prevented
                                                                 the free will and judgment of the accused so as to deny
the rendition of judgment; (2) petitioner has shown that
                                                                 him a trial on the merits, on motion seasonably made and
the newly discovered evidence does not go to the merits
                                                                 properly supported, the court may, even after judgment,
of the issues tried; and (3) petitioner has shown that the
                                                                 permit him to withdraw the plea and stand trial." (People
facts upon which he relies were not known to him and
                                                                 v. Superior Court (Giron), supra, 11 Cal.3d at p. 797, fn.
could not in the exercise of due diligence have been dis-
                                                                 5.)
covered by him at any time substantially earlier than the
time of his motion for the writ." (People v. Wiedersperg,             Likewise, in People v. Wiedersperg, the petitioner was
supra, 44 Cal.App.3d at p. 554; People v. Ibanez, supra,         deported and brought a writ of error coram nobis to va-
76 Cal.App.4th at pp. 544--545; People v. Gallardo, supra,       cate his expunged conviction upon a "slow plea" for mar-
77 Cal.App.4th at p. 987.)                                       ijuana possession. His [*17] attorney declared that he
                                                                 was unaware that the petitioner was born in Austria and
    The writ (or equivalent motion to vacate) has a long
                                                                 had entered the United States illegally as a child, and if
history in California as a vehicle for vacating a plea
                                                                 he had known, he would have negotiated a different dis-
of guilty or no contest that has proved to have unfore-
                                                                 position that involved a guilty plea to a non-     -deportable
seen immigration consequences. For example, in People
                                                                 offense. He also declared that based on the court's lenient
v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.
                                                                 treatment of petitioner, he believed the court would not
Rptr. 596, the defendant, a lawfully admitted permanent
                                                                 have rendered the same judgment if the judge had known
resident alien, pleaded guilty to possession of marijuana
                                                                 the consequences to the petitioner. Finally, both petitioner
and was placed on probation for three years with imposi-
                                                                 and his attorney disclaimed knowledge of the possibility
tion of sentence suspended. Before his probationary [*15]
                                                                 of deportation until hearings were begun. On appeal from
term ended, the defendant moved to withdraw his guilty
                                                                 denial of the writ petition, the Court of Appeal reversed
plea on the grounds that the INS had served him with
                                                                 the trial court's order, holding that the Wiedersperg's pe-
an order to show cause why he should not be deported
                                                                 tition had stated facts which, if proved, could support
on the basis of his conviction, and that, at the time he
                                                                 the relief requested. Subsequent cases have distinguished
entered his plea of guilty and accepted probation, neither
                                                                 Wiedersperg, limiting its application to situations where
he, his attorney, the prosecutor nor the court were aware
                                                                 the fact of petitioner's illegal status, rather than the immi-
that his plea would subject him to deportation. The trial
                                                                 gration consequences of that status, are unknown to the
court permitted Giron to withdraw his plea and the People
                                                                 petitioner and his attorney. (See, e.g., People v. Ibanez,
sought a peremptory writ of mandate to compel the court
                                                                 supra, 76 Cal.App.4th at pp. 544--545.)
to reinstate the guilty plea.
                                                                     It is also true that historically California courts have
    Our Supreme Court found no error and denied the
                                                                 held that claims [*18] of ineffective assistance of counsel
                                                                                                                      Page 6
                                          2006 Cal. App. Unpub. LEXIS 6138, *18


in pre--guilty plea advice is "not an appropriate basis for      who alleged that as a result of his guilty plea he was "un-
relief by writ of coram nobis. [Citations.] The appropriate      lawfully restrained of his liberty upon deportation pro-
means of raising a claim of ineffective assistance of coun-      ceedings" by the INS, but who was no longer in the in ac-
sel is either by direct appeal or by petition for a writ of      tual or constructive custody of the state, "did not meet the
habeas corpus." (People v. Soriano (1987) 194 Cal.App.3d         habeas corpus jurisdictional requirements of California
1470, 1477, 240 Cal. Rptr. 328; see also People v. Odlum         law." (Id. at p. 26.)
(1949) 91 Cal.App.2d 761; People v. Sharp (1958) 157
                                                                      The petitioner in Azurin, like petitioner here, was a
Cal.App.2d 205.)
                                                                 lawful permanent resident of the United States. In March
    In Soriano, the petitioner, a Philippine citizen and a       1990 Azurin pleaded guilty to discharging a firearm at
lawful permanent resident of the United States, pleaded          an occupied vehicle. At that time he was not "advised by
guilty to a felony and was placed on probation on the            counsel that deportation proceedings would likely be ini-
condition that he serve one year in the county jail. After       tiated against him as a result of [his] plea." (In re Azurin,
he served his year sentence, the INS placed an immigra-          supra, 87 Cal.App.4th at p. 22.) [*21] He served a term
tion hold on him. While he was in the custody of the INS         in the California Youth Authority, successfully completed
(and presumably while he was still on probation), depor-         parole and was released from actual state custody. In 1998,
tation proceedings were begun. He filed a petition for writ       the INS instituted deportation proceedings against Azurin,
of coram nobis in the superior court to vacate his guilty        based on his 1990 conviction. (Ibid.) He filed a petition
plea on the grounds that due to language comprehension           for writ of habeas corpus in the superior court, asserting
difficulties and inadequate advice from his attorney, "at         that he was in constructive state custody because he was
the time he entered his guilty plea he did not know that         in actual or constructive federal custody of the INS. (Id.
[*19] the plea would subject him to deportation, and if he       at p. 25.) An evidentiary hearing was held on petitioner's
had understood that consequence of the plea he would not         petition. The superior court granted relief and permitted
have made it." (People v. Soriano, supra, 194 Cal.App.3d         Azurin to withdraw his plea after finding that "defense
at p. 1474.)                                                     counsel had rendered ineffective assistance at plea nego-
                                                                 tiations in this case in 1990 by not advising Azurin of the
     The trial court denied his petition for coram nobis re-
                                                                 immigration consequences of his guilty plea." (Id. at p.
lief. Petitioner appealed from the denial and also filed a
                                                                 22.) The People appealed.
petition for writ of habeas corpus in the court of appeal.
The Court of Appeal affirmed the trial court's denial of the          The appellate court reversed, finding that "the writ
coram nobis petition, but granted the writ of habeas cor-        granted by the superior court was not directed to the INS
pus, holding that on the basis of trial counsel's testimony at   and, indeed, could not properly have been so directed."
the hearing on the coram nobis petition, petitioner was not      (In re Azurin,supra, 87 Cal.App.4th at p. 24.) Further,
adequately advised of the immigration consequences of            the court "decline[d] to expand the interpretation of the
his plea and had been prejudiced by the initiation of depor-     language of section 1472, subdivision (a) so as to reach
tation proceedings against him. (Accord, In re Resendiz          a [*22] conclusion that Azurin was in California's 'con-
(2001) 25 Cal.4th 230.)                                          structive custody' under the 1990 conviction simply be-
                                                                 cause such conviction formed the basis for federal depor-
    In recognizing that trial counsel had a duty to research
                                                                 tation proceedings including attendant federal custody."
and correctly advise the client about the immigration con-
                                                                 (Id. at p. 26.) Thus, the court held that Azurin was not
sequences of a guilty plea, California case law broke new
                                                                 entitled to relief on habeas corpus because he had "failed
ground, for counsel is not generally required to advise
                                                                 to satisfy the habeas corpus jurisdictional requirements
about the "collateral" consequences of a plea. (See gen-
                                                                 under California law." (Id. at p. 25.) However, the court
erally, McDermia Deportation is Different: Noncitizens
                                                                 did not leave petitioner remediless. In a final footnote,
and Ineffective Assistance [*20] of Counsel, supra, 89
                                                                 the court stated: "This disposition is without prejudice
Cal. L.Rev. 741.)
                                                                 to Azurin's filing a petition for error coram nobis in the
    Thus, if Soriano seemingly closed one avenue for             superior court," citing People v. Wiedersperg, supra, 44
the petitioner seeking relief from unforeseen immigration        Cal.App.3d 350. (In re Azurin, supra, 87 Cal.App.4th at
consequences of a plea, it opened another, at least where        p. 27, fn. 7.)
the petitioner is in actual or constructive custody of the
                                                                     Petitioner does not contend that Azurin is incorrect.
state. (In re Wessley W. (1981) 125 Cal.App.3d 240, 246--
                                                                 He does, however, argue that Azurin's footnote 7 applies
247, 181 Cal. Rptr. 401; § 1473.)
                                                                 to him, and that his petition for writ of error coram nobis
   In In re Azurin, supra, 87 Cal.App.4th at page 24,            should not have been summarily denied without a hearing.
however, the Court of Appeal determined that a person
                                                                     The Attorney General argues that Azurin's footnote 7
                                                                                                                   Page 7
                                         2006 Cal. App. Unpub. LEXIS 6138, *22


"does not state or imply disagreement with the previous        a trial judge more leeway to act than does the statuto-
case law holding ineffective [*23] assistance of coun-         rily circumscribed writ of habeas corpus. (See People v.
sel claims improper on coram nobis. Instead, footnote 7        Superior Court (Giron), supra, 11 Cal.3d 793, 797, fn.
was a statement that Azurin may still attempt to present       5 [coram nobis gives the trial court, even after judgment
whatever claims might be cognizable via coram nobis."          " 'the opportunity to exercise a sound discretion so that
                                                               justice may be done' "].) It is not, however, authority
    People v. Gutierrez, supra, 106 Cal.App.4th 169 and
                                                               for the proposition that where the petitioner is in the cus-
People v. Miranda, supra, 123 Cal.App.4th 1124, on
                                                               tody of the ICE (formerly the INS) solely on account of
which the Attorney General relies as evidence that post--
                                                               a guilty plea, and there is a colorable claim that he would
Azurin cases continue to recite the general rule about
                                                               not have entered that plea but for his attorney's misad-
coram nobis and claims of ineffective assistance of coun-
                                                               visement about [*26] the immigration consequences of
sel, do not shed any light on the issues in this case.
                                                               the plea, he has stated a prima facie case for coram no-
Neither case cites or discusses Azurin. Indeed, neither
                                                               bis relief and is entitled to a hearing on the merits of his
case involved a non--statutory writ of error coram no-
                                                               petition.
bis. Gutierrez involved a statutory motion to set aside a
guilty plea pursuant to section 1016.5 on the grounds that          Upon consideration of the parties' additional briefing
the trial court's immigration advisement did not mirror        of the policy reasons for and against recognition of such
the statutory language. The Gutierrez court summarily          an exception to the general rule barring coram nobis re-
rejected the petitioner's suggestion that his attorney mis-    view of ineffective assistance of counsel claims, we are
advised him about the immigration consequences of his          convinced that sound policy requires us to adhere to long--
plea with the statement that petitioner's "disguised claim"    standing precedent. "The petition for writ of error coram
of ineffective assistance of counsel was not formally as-      nobis is opposed by a strong presumption that the judg-
serted in his brief nor cognizable on coram nobis. ( [*24]     ment of conviction was correct [citations], and the trial
People v. Gutierrez, at p. 176.)                               judge is required to weigh a [petitioner's] statements con-
                                                               tained in [the] petition against this presumption." (People
     Miranda involved a statutory motion to withdraw a
                                                               v. Crouch (1968) 267 Cal.App.2d 64, 67, 72 Cal. Rptr.
guilty plea prior to rendition of judgment, pursuant to
                                                               635.) While we agree with petitioner that "an immigrant
section 1018, and considered whether the six--month lim-
                                                               . . . who enter[s] a plea of guilty without having been
itation in section 1018 was mandatory or directory. While
                                                               properly advised of the immigration consequences [of the
the Miranda court recited the general rule that ineffec-
                                                               plea], should not be without post conviction relief where
tive assistance is not reviewable on coram nobis, it ex-
                                                               the claim is meritorious," we think that such relief should
pressly declined to state any views about the availabil-
                                                               come from the Legislature. n6 We find support for this
ity of relief under either coram nobis or habeas corpus,
                                                               view in Azurin. There, the Court [*27] of Appeal "de-
and remanded the case for further proceedings. (People
                                                               cline[d] to expand the interpretation of the language of
v. Miranda, supra, 123 Cal.App.4th at pp. 1132 & fn. 6,
                                                               section 1473, subdivision (a) so as to reach a conclusion
1134 & fn. 7.) Thus, Gutierrez and Miranda are unhelpful.
                                                               that Azurin was in California's 'constructive custody' "
    Footnote 7 of Azurin states: "This disposition is with-    for the purpose of granting him post conviction relief. (In
out prejudice to Azurin's filing a petition for error coram     re Azurin, supra, 87 Cal.App.4th at p. 25.) We likewise
nobis in the superior court." (87 Cal.App.4th at p. 27.)       decline to read Azurin's footnote 7 as an exception to the
This footnote did not state that the petitioner's ineffec-     rule that ineffective assistance of counsel claims are not
tive assistance claim was reviewable on coram nobis; at        properly raised by writ of error coram nobis.
best, its language suggests that if petitioner had claims
that were cognizable on coram nobis, the court did not in-               n6 We note that our Legislature has heeded
tend by its denial of his habeas petition to prejudice those         the call for relief when it has concluded that pol-
claims. We agree [*25] with the Attorney General that the            icy considerations favor relaxation of rules that
Azurin court did not intend by its footnote to sanction the          would otherwise bar relief on meritorious claims.
wholesale rejection of the long--standing rule that inef-            For example, enactment of section 1016.5 was
fective assistance of counsel claims are not reviewable by           the legislative response to Giron. (See Ostroff,
way of coram nobis petition. We view Azurin's footnote               Are Immigration Consequences of a Criminal
7 as a recognition that coram nobis is a judicially cre-             Conviction Still Collateral? How the California
ated extraordinary remedy (People v. Miller (1963) 219               Supreme Court's Decision In re Resendiz Leaves
Cal.App.2d 124, 126, 32 Cal. Rptr. 660, disapproved of               This Question Unanswered (2003) 32 Sw.U. L.Rev.
on other grounds in People v. Shipman (1965) 62 Cal.2d               359, 367--368.)
226, 232-  -233, 42 Cal. Rptr. 1),and as such may give
                                                                         Similarly, the Legislature enacted section
                                                                                                                   Page 8
                                          2006 Cal. App. Unpub. LEXIS 6138, *27


        1473.6 "to address a problem illustrated by the so      fective assistance of counsel cannot be reviewed by way
        called Rampart scandal. . . . in which it was discov-   of writ of error coram nobis, and we decline to recog-
        ered that certain Los Angeles Police Department         nize an exception to that rule based on People v. Azurin,
        officers had engaged in misconduct. . . . Because the    supra, 87 Cal.App.4th at page 27, footnote 7. Therefore,
        misconduct was discovered many years after it oc-       the trial court did not err in refusing to hold a hearing
        curred, those who were no longer in custody at the      on petitioner's claim that he would not have entered a
        time of the discovery of the misconduct would not       plea of guilty to unlawful sexual intercourse ( § 261.5,
        be able to set aside their convictions." The statute    subd. (d)) if his attorney had properly advised him of the
        provides a habeas corpus--like remedy without the       immigration consequences of the plea.
        requirement of state custody. (People v. Germany
                                                                   The denial of the motion to recuse the entire Santa
        (2005) 133 Cal.App.4th 784, 791--792.)
                                                                Clara County bench is not an appealable order.
[*28]                                                              DISPOSITION
                                                                    The order denying the petition [*29] for writ of er-
Motion to Recuse
                                                                ror coram nobis is affirmed. (People v. Totari, supra, 28
    Petitioner argues that the denial of his motion to re-      Cal.4th at p. 887.) The appeal from the order denying
cuse the Santa Clara County bench is an appealable order,       petitioner's motion to recuse the judges of Santa Clara
but cites no authority for that proposition. We agree with      County is dismissed.
the Attorney General that the disqualification of a judge,
                                                                   McAdams, J.
or judges, is not an appealable order; the exclusive remedy
is by writ of mandate. (Code Civ. Proc., § 170.3; People           WE CONCUR:
v. Hull (1991) 1 Cal.4th 266, 269--275.)
                                                                   Bamattre--Manoukian, Acting P.J.
   CONCLUSION
                                                                   Duffy, J.
   It is a long--standing rule that claims based on inef-

				
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