NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FACTUAL AND PROCEDURAL HISTORY
On March 3, 2005, defendant and appellant Jorge A. Millan Rodriguez (defendant) pled guilty to unlawful intercourse by a person over 21 under Penal Code section 261.5, subdivision (d). Defendant, as a person over 21, admitted to having sex with a person under the age of 16. The trial court sentenced defendant to probation for 36 months, to be served on consecutive weekends in the Riverside County Sheriff's Department's Weekender Program.
On December 16, 2016, defendant filed a petition for dismissal under Penal Code section 1203.4, and a petition for a reduction of his felony conviction to a misdemeanor under Penal Code section 17, subdivision (b). As mitigation, defendant provided in his petition that he married the victim and had two children with her. Moreover, defendant noted that both violations of probation occurred because he was in the custody of Immigration and Customs Enforcement (ICE) and was deported so he was unable to meet his probation officer or check in for his weekend custody obligation.
The People opposed defendant's motions under Penal Code sections 1203.4 and 17, subdivision (b). First, the People stated that Penal Code section 261.5 does not qualify for relief under Penal Code section 1203.4, subdivision (b). Second, defendant suffered two violations of probation in November 2007, and September 2008. On December 27, 2016, in an ex parte hearing, the trial court denied both motions.
On January 30, 2017, defendant filed a timely notice of appeal.
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. On May 30, 2017, defendant filed an 11-page typewritten supplemental brief with 10 attached documents. In his brief, defendant argues that the People breached its plea agreement by pursuing "violations of probation arising from that breach," and his trial counsel rendered ineffective assistance of counsel (IAC) by failing to advise defendant that a guilty plea would result in his deportation.
As to his first contention, defendant argues that "the plea agreement required the People to acknowledge that [defendant] had completed his in-custody obligation through a concurrent sentence, and the People breached the plea agreement by instigating two VOP's [violations of probations]." Defendant claims that the only reasons he violated probation was because he was in the custody of Immigration and Customs Enforcement (ICE) because of this case. In essence, defendant is arguing that the two probation violations are invalid and the People allegedly breached the plea agreement by pursuing the probation violations. Defendant, however, should have made these challenges to the probation violations when they were filed — back in 2007 and 2008. Instead, defendant admitted that he violated the terms of his probation. Defendant's first argument, therefore, fails.
Second, defendant claims that his counsel rendered IAC by failing to advise him of his immigration consequences. In his declaration submitted in support of his personal brief, defendant stated that when he appeared to enter the plea agreement, his counsel "failed to advise me of the collateral immigration consequences following the plea agreement." Moreover, he was not "aware that entering the plea agreement would subject me to deportation from the United States away from my family who depend on me for union support." Additionally, he "would not have entered a plea agreement in this case had I known that there is collateral immigration consequences." Defendant's statements are supported by the record. In the felony plea form, defendant did not sign the following: "If I am not a citizen of the United Sates, I understand that this conviction may have the consequences of deportation, exclusion from admission to the United Sates, or denial of naturalization pursuant to the laws of the United Sates." Moreover, nothing regarding immigration consequences of his plea were discussed during defendant's change-of-plea hearing. However, in People v. Kim (2009) 45 Cal.4th 1078, the California Supreme Court held that, "Although an attorney has a constitutional duty at least not to affirmatively misadvise his or her client as to the immigration consequences of a plea [citations], any violation in this regard should be raised in a motion for a new trial or in a petition for a writ of habeas corpus." (Id. at p. 1104.)
In this case, the time for filing a motion for new trial or vacating a guilty plea has passed. Moreover, we cannot consider defendant's appeal as if it were a petition for habeas corpus. The key prerequisite to habeas corpus relief is a petitioner's custody. (People v. Villa (2009) 45 Cal.4th 1063, 1069.) Here, defendant is not in custody for his conviction at issue on appeal. "By contrast, collateral consequences of a criminal conviction — even those that can later form the basis of a new criminal conviction — do not of themselves constitute constructive custody." (Id. at p. 1070.) "[P]ersons like defendant, who have completely served their sentence and also completed their probation or parole period, may not challenge their underlying conviction in a petition for a writ of habeas corpus because they are in neither actual nor constructive custody for state habeas corpus purposes." (People v. Kim, supra, 45 Cal.4th 1078, 1108.)
Defendant, however, is not without a remedy. Recently, the Legislature enacted Penal Code section 1473.7.
We have now concluded our review of the record and find no other issues.
The trial court's order denying defendant's motions are affirmed, but without prejudice to defendant's right to file a motion for relief under newly-enacted Penal Code section 1473.7.