People v. Wiedersperg

Opinion

GOOD, J.

*

On this appeal from an order denying a petition for writ of error

coram nobis

defendant contends that the trial court erred in its holding that it did not have jurisdiction to entertain the petition. We agree and remand the cause to the trial court for its consideration of the merits.

On December 20, 1973, defendant Stefan Wiedersperg, through counsel, filed a petition for writ of error

coram nobis

and a notice of motion to vacate judgment in San Francisco Superior Court. The petition and supporting declaration alleged in substance as follows: On August 26, 1968, defendant was found guilty of possession of marijuana. The issue of guilt had been submitted on the transcript of the preliminary hearing. He was fined $100, and placed on three years probation. On December 3, 1969, defendant’s motion for expungement of the record and conviction was granted, pursuant to section 1203 4 of the Penal Code. At the time of the 1968 proceedings defendant’s attorney did not know, and had no reason to know, that defendant was an alien born in Austria. He had been in this country since the age of 10, when he entered with his parents in 1957, and he had no outward appearances of not having been native born. Subsequent to the 1969 expungement of

[553]

the conviction, defendant was ordered to appear before the Immigration and Naturalization Service, which ultimately determined that he should be deported because of his conviction.

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The declaration also states that if counsel had known of his client’s alien status he would not have proceeded with the case as he had, but would have attempted to arrive at some other disposition, such as a guilty plea to presence in a place where drugs are used (Health & Saf. Code, § 11365, formerly § 11556), which is not a deportable offense. The attorney declared upon information and belief that the sentencing judge would not have imposed the sentence which he did had he been aware that it would subject defendant to deportation. This belief was supported by the fact that the judge had been quite lenient with defendant in several respects, i.e., allowing him to remain on bail, minimal fine at the time and minimal terms of probation.