Filed 5/22/15 P. v. Hernandes CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B257996
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA015764)
v.
MAXIMILIANO QUINTEROS
HERNANDES,
Defendant and Appellant.
APPEAL from an order of the Los Angeles Superior Court, Alan B. Honeycutt,
Judge. Affirmed.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Maximiliano Quinteros Hernandes, is a Guatemalan native. He has
been living and working in the United States since 1987. Defendant has a son who is a
United States citizen. In 1993, defendant was charged with cocaine base possession for
purposes of sale. (Former Health & Saf. Code, § 11351.5, Stats. 1987, ch. 1174, § 3.)
Defendant evaded the charges until September 4, 2002, when he was arrested on a
fugitive bench warrant. On October 11, 2002, defendant pled no contest to the charge.
His potential maximum exposure was five years in state prison. (Former Health & Saf.
Code, § 11351.5.) Under the plea agreement, he was placed on three years’ formal
probation, which he successfully completed. Eleven years later, in 2013, defendant filed
a motion to vacate the judgment and withdraw his plea. (Pen. Code, § 1016.5.1) He was
facing deportation as a result of his cocaine base possession for sale conviction. The trial
court denied the motion. Defendant appeals from that order. We affirm the order.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. After examining the
record, appointed appellate counsel filed an “Opening Brief” in which no issues were
raised. Instead, appointed appellate counsel requested this court independently review
the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See
Smith v. Robbins (2000) 528 U.S. 259, 277-284.) We have examined the entire record
and are satisfied appointed appellate counsel has fully complied with her responsibilities.
1 Further statutory references are to the Penal Code except where otherwise noted.
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A. The Immigration Consequences Advisement
As noted above, the trial court denied defendant’s motion to vacate the judgment
and withdraw his plea. Our review is for an abuse of discretion. (People v. Superior
Court (Zamudio) (2000) 23 Cal.4th 183, 192; People v. Akhile (2008) 167 Cal.App.4th
558, 562; People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244.) There was no
abuse of discretion. Defendant was advised as to the potential immigration consequences
of his plea. Defendant did not present any objective evidence corroborating his claim he
would not have pled guilty if properly advised. And the trial court was not required to
credit defendant’s assertion he would not have entered his plea had he been advised as to
its potential immigration consequences. (People v. Martinez (2013) 57 Cal.4th 555, 565;
see generally, People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3 [credibility of witness is
exclusive province of trier of fact to determine]; People v. Maury (2003) 30 Cal.4th 342,
403 [same].) The trial court could reasonably conclude defendant did not meet his
burden on his section 1016.5, subdivision (b) motion. (People v. Arriaga (2014) 58
Cal.4th 950, 957-958; People v. Martinez, supra, 57 Cal.4th at pp. 558-559; In re
Resendiz (2001) 25 Cal.4th 230, 253-254.) Further, defendant did not contend his
attorney inaccurately communicated the plea offer. And there was no evidence the
prosecutor would have been willing to accept a plea to a nondeportable offense.
Defendant’s choice, at the time he entered his plea, was not between pleading guilty and
being deported or going to trial and avoiding deportation. Rather, a conviction after trial
would have had the same potential immigration consequences. (People v. Martinez,
supra, 57 Cal.4th at p. 565; In re Resendiz, supra, 25 Cal.4th at p. 254.)
Additionally, when pleading nolo contendre, defendant was represented by Alex
Mendoza. Defendant asserts Mr. Mendoza rendered ineffective assistance of counsel.
Defendant argued he was misadvised as to the immigration consequences of his plea.
(See Padilla v. Kentucky (2010) 559 U.S. 356, 364 [affirmative misadvice or failure to
advise may constitute ineffective assistance of counsel]; In re Resendiz, supra, 25 Cal.4th
at p. 240 [same].) However, this is an inappropriate ground for relief under section
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1016.5. (People v. Kim (2009) 45 Cal.4th 1078, 1107, fn. 20; People v. Mbaabu (2013)
213 Cal.App.4th 1139, 1145; People v. Limon (2009) 179 Cal.App.4th 1514, 1519;
People v. Chien (2008) 159 Cal.App.4th 1283, 1287-1290). And it is not a proper ground
for a nonstatutory motion or its legal equivalent, a coram nobis petition. (People v. Kim,
supra, 45 Cal.4th at p. 1104; In re Nunez (1965) 62 Cal.2d 234, 236; People v. Aguilar
(2014) 227 Cal.App.4th 60, 68; People v. Mbaabu, supra, 213 Cal.App.4th at p. 1147).
The alleged violation of defendant’s constitutional right to effective assistance of counsel
should have been raised in a habeas corpus petition. (People v. Kim, supra, 45 Cal.4th at
p. 1104; People v. Shokur (2012) 205 Cal.App.4th 1398, 1404; People v. Soriano (1987)
194 Cal.App.3d 1470, 1477.) However, defendant completed his California probation
and is no longer in California custody. Thus, he can no longer challenge his conviction
by a habeas corpus writ petition. (People v. Villa (2009) 45 Cal.4th 1063, 1066, 1071-
1072; People v. Kim, supra, 45 Cal.4th at pp. 1084, 1108.)
B. Defendant’s Letter Brief
On March 3, 2015, we advised defendant he had 30 days within which to
personally submit any arguments he wished us to consider. Defendant filed a letter brief
on March 27, 2015, together with exhibits. Defendant asserted numerous facts, but none
under penalty of perjury. In connection with the post-judgment motion to vacate the
conviction, defendant was represented by Robert F. Jacobs. Defendant argues Mr. Jacobs
provided ineffective assistance. Even if we assume the truth of defendant’s factual
assertions, he has not shown it is reasonably probable the outcome would have been more
favorable to him absent his factually unsupported allegations. (Strickland v. Washington
(1984) 466 U.S. 668, 687-694; People v. Carrasco (2014) 59 Cal.4th 924, 982; In re
Champion (2014) 58 Cal.4th 965, 1007-1008.)
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IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
MOSK, J.
GOODMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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