Filed 4/16/14 P. v. Cisneros CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
CARLOS ARQUIMEDE CISNEROS,
Defendant and Appellant. B250671
(Los Angeles County Super. Ct. No. VA088049)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Marcelita V. Haynes, Judge. Affirmed. Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.

___________________ _________________2 On April 13, 2005, the Los Angeles C ounty District Attorney’s Office charged appellant with corporal injury to a spouse (Pen. Code, § 273.5; count 1) and criminal threats (Pen. Code, § 422; count 2). On April 13, 2005, appellant pled guilty to count 1. The official tran script of the plea hearing reflected that appellant was advised by the trial court as follows: “‘If you’re not a citizen, you have a right to consult with the consulate of the country you are a citizen of before entering your plea -- [I]f you’re not a citi zen, your plea will have the consequences of deportation, exclusion from admission, de nial of naturalization, amnesty, or reentry pursuant to the laws of the Unite d States.’” Appellant was asked if he understood those rights, and he responded, “‘ Yes.’” The trial c ourt further advised appellant and his trial counsel that appella nt had an immigration hold and that he was going to be deported. The court aske d appellant if he understood he was going to be deported, and he answered, “‘Yes.’” The minute order likewise reflected that appellant was advised of the immigr ation consequences of his plea. At the sentencing hearing the same da y, the trial court suspended imposition of sentence and placed appellant on five years probation on the condition that he serve 365 days in county jail. Accord ing to appellant, he was deported and subsequently reentered the United St ates in March 2012, whereupon he was detained by the United States Immigrati on and Customs Enforcement (ICE), part of the United States Department of Ho meland Security (DHS). On March 28, 2012, appellant admitted he was in violation of probation for failing to report to the probation department and for not a ttending domestic violence counseling

programs. On June 27, 2013, appellant filed a mo tion to vacate his plea and/or reduce
his conviction to a misdemeanor. He contended he was ne ver advised that pleading to the corporal injury charge w ould have immigration consequences. He
also contended that he received in effective assistance of counsel under Padilla v.3 Kentucky (2010) 559 U.S. 356 ( Padilla ), as he never was informed of other available options that lacked immigrati on consequences. The following day, the trial court denied the motion, finding th at appellant had been informed of the immigration consequences of his plea. On July 15, 2013, appellant prepared a writ of habeas corpus, seeking to vacate his plea. In his writ, he allege d he was being detained by DHS at the
Adelanto Detention Center. No thing indicates that this writ was filed in any court. On August 1, 2013, appellant filed anot her motion to vacate his plea and/or
reduce his conviction to a misdemeanor. Th e next day, the trial court found the motion duplicative of the prior motion, an d again denied relief. The court’s August 2 order also noted that appellant’s sentence was final in 2005, and that the United States Supreme Court had held in Chaidez v. United States (2013) __ U.S. __ [133 S.Ct. 1103] ( Chaidez ), that Padilla was inapplicable to any case already final prior to the March 31, 2010 Padilla ruling. On August 1, 2013, appellant noticed an appeal from an order or judgment entered “March 25, 2005.” In an attached declaration, he alleged that he was currently detained at Adelanto De tention Center, “ undergoing deportation proceedings by the Department of Homeland Security.” After examining the record, appointed ap pellate counsel file d a brief raising no issues, but asking this court to independently review the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v.
Robbins (2000) 528 U.S. 259, 264.) On January 7, 2014, we advised appellant he had 30 days within which to submit by brie f or letter any contentions or argument
he wished this court to consider. On February 10, 2014, appellant filed a supplemental brief, consisting of a writ of error coram nobis (or coram vobis ) to vacate his conviction and amend his plea. In his writ, appellant sought relief on the ground that he received ineffective assi stance of counsel, as defense counsel4 purportedly had failed to properly a dvise him of the actual immigration consequences of his plea. In an attached declaration, appellant stated that he is currently detained by ICE and housed in Adelanto, California. As an initial matter, appellant ’s notice of appeal is de fective, as it notices an appeal from a nonexistent order. To th e extent appellant is appealing his conviction and sentence in 2005, it is untim ely. However, we will exercise our
discretion and construe the no tice of appeal as being from the denial of appellant’s
June 2013 motion to vacate his conviction a nd amend his plea. After review, we
find no error. Appellant was advised in open c ourt of the possible immigration consequences of his plea. He was further advised th at he was subject to an immigration hold, and that he would be deported following his sentencing. After being advised, he pled guilty. On these facts, even if defe nse counsel failed to properly advise him, a ppellant was informed of the possible and actual immigration consequences of his plea. Moreover, in Chaidez , the United States Supreme Court held that for defendants w hose convictions became final prior to March 31, 2010 (the date of the Padilla ruling), a lawyer’s failure to advise noncitizen clients of immigration conseque nces of a criminal conviction does not
constitute ineffective assistance of c ounsel under the Sixth Amendment of the federal Constitution. ( Chaidez
, supra , 113 S.Ct. at p. 1113.) As appellant’s conviction was final in 2005, he cannot assert a claim fo r ineffective assistance of counsel for counsel’s purported failure to inform him of the immigration consequences of his plea. In short, th e trial court properly denied appellant’s motion, as he failed to show a legal ba sis to vacate his plea and/or reduce his
conviction to a misdemeanor. As to appellant’s writ of error coram nobis , appellant has not shown he is
entitled to relief on coram nobis . As appellant was advi sed of the possible and5 actual immigration consequences of his pl ea, he cannot show any new facts that would bring him within the writ. In People v. Kim (2009) 45 Cal.4th 1078, the California Supreme Court specifically re jected the argument that ineffective assistance of counsel in failing to inves tigate the immigration consequences of a plea, or failing to negotiate a differ ent plea, constituted grounds for relief on coram nobis . ( Id . at p. 1104.) Accordingly, we deny appellant’s petition fo r writ of error
coram nobis

. Likewise, we conclude that appellant is not entitled to relief by way of a writ of habeas corpus. Appellant alleges that he is in federal custody. The California Supreme Court has held that a defendant in federal custody may not seek to vacate his state conviction by way of a state writ of habeas corpus. ( People v. Villa (2009) 45 Cal.4th 1063, 1075-1076.) Thus, appellant is not entitled to vacate his plea by way of a state writ of habeas corpus.
This court has examined the en tire record in accordance with People v.
Wende
, supra , 25 Cal.3d at pages 441-442, and is satisfied appellant’s attorney has fully complied with the responsibilities of c ounsel, and no arguable issues exist. Accordingly, we affirm the judgment of conviction.6 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

EPSTEIN, P. J.

EDMON, J.*

_____________________________________________________________________________________________ * Judge of the Los Angeles Superior Cour t, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.