People v. Muniz CA2/8

Filed 9/29/14 P. v. Muniz CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B253103

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A479192) v.

SERGIO MUNIZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Lori A. Fournier, Judge. Affirmed.

Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Sergio Muniz appeals from the order denying his motion to vacate his 1988 cocaine transportation guilty plea on the ground that he was not properly advised of the immigration consequences of that plea. We affirm because, as a matter of law, he waited too long to bring his challenge.

FACTS AND PROCEDURAL HISTORY

In December 1988 Sergio Muniz entered an open plea of guilty to one count of transporting cocaine (Health & Saf. Code, § 11352, subd. (a)), along with a sentence enhancement allegation that the transaction involved more than 28.5 grams of the drug (Pen. Code, § 1203.073, subd. (b)(1)).1 Muniz was sentenced to 4 years in state prison with all but one year suspended, was awarded custody credits of 151 days, and was placed on 5 years probation. As part of his plea, Muniz signed and initialed a form stating that he understood his conviction carried certain immigration consequences if he were not an American citizen, including deportation, exclusion from admission to the United States, and denial of naturalization. Muniz was represented by counsel at the time. In February 2001 Muniz had another lawyer file a motion to vacate the 1988 judgment under section 1203.4, which gives the trial court discretion to do so in the interests of justice if the defendant successfully served probation. The motion stated that Muniz successfully completed probation, had no further convictions, and sought to vacate the judgment in order to facilitate his application for citizenship. That motion was granted in March 2001. However, that action had no effect on the federal immigration consequences of Muniz’s conviction. (People v. Martinez (2013) 57 Cal.4th 555, 560.) In April 2013, represented by a third lawyer, Muniz filed a motion to vacate the 1988 plea under section 1016.5, contending that he had not been properly advised of the immigration consequences of his plea in accordance with that statute. Muniz’s declaration stated that his parents brought him to the United States from Mexico in 1976