People v. Martinez CA2/8

Filed 1/21/15 P. v. Martinez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B254314

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA053737) v.

FEDERICO MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed.

Karlin & Karlin and Marc A. Karlin for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2002, appellant Frederico Martinez, a Mexican citizen, pled no contest to one count of forgery (Pen. Code, § 470, subd. (d))1 and was sentenced to three years’ formal probation, as well as 180 days in county jail. During his plea, the prosecutor informed him at the court’s direction that if he was not a United States citizen, his no contest plea “will result in your deportation, exclusion from admission to the United States or denial of naturalization as a citizen.” Appellant stated he understood those immigration consequences and stated he wanted to go forward with his plea. After his probation was revoked and reinstated twice, his probation expired on December 11, 2006. Now seeking legal status in the United States, on October 29, 2013, appellant filed a “nonstatutory” motion to vacate his plea based on ineffective assistance of counsel pursuant to Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), in which the United States Supreme Court held that a claim for ineffective assistance of counsel may be based upon misadvising or failing to advise a defendant regarding possible immigration consequences of a plea. (See People v. Aguilar (2014) 227 Cal.App.4th 60, 74 (Aguilar).) The trial court denied the motion “without prejudice,” allowing appellant to bring the motion again if there was “some change in circumstances” or if appellant wanted to renew it on “different grounds.” Although not entirely clear, the trial court appeared to reason that Padilla did not apply to appellant’s plea entered in 2002.2 Appellant timely appealed. We affirm the order denying the motion, but for a different reason: the relief appellant seeks is procedurally unavailable.3