People v. Escobedo CA2/1

Filed 9/3/15 P. v. Escobedo CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B261311, B261585

Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. BA248590, v. BA195873, BA094346)

CARLOS MARTINEZ ESCOBEDO,

Defendant and Appellant.

APPEALS from orders of the Superior Court of Los Angeles County, Monica Bachner, James R. Brandlin, Charlaine F. Olmedo and Dorothy B. Reyes, Judges. Affirmed. Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

Carlos Martinez Escobedo was charged, pleaded guilty to some of the charges, and was sentenced in three cases. In 1994 (case No. BA094346), Escobedo was charged with violation of Health and Safety Code1 sections 11351.5 and 11350, subdivision (a); he pleaded guilty to a violation of section 11350 and was sentenced to a prison term. In 1999 (case No. BA195873), Escobedo was charged with a violation of section 11351.5; in 2000, he pleaded guilty, and was sentenced to a prison term. In 2003 (case No. BA248590), Escobedo was charged with violation of sections 11351.5 and 11350, subdivision (a), pleaded guilty to a violation of section 11351.5, and was sentenced to a prison term. On October 6, 2014, Escobedo filed a petition for writ of habeas corpus titled “Motion to Vacate Judgments and Conviction Pursuant to California Penal Code [section] 1473 et seq.” describing his 1994, 2000, and 2003 convictions. He argued that he received ineffective assistance of counsel in each case in part because he had not been advised of adverse immigration consequences before pleading guilty. Escobedo’s return address was United States Penitentiary, Lompoc, and he stated he had been removed to Mexico in 2001 and “[p]etitioner is now serving an sentence for illegal reentry to his own country.” Escobedo filed a “Motion to Expunge and Seal Records” in all three cases on November 3, 2014, and a motion to consolidate and expunge all three convictions. The trial court summarily denied the habeas petition on November 6, 2014 for multiple reasons, including that Escobedo failed to allege that he was actually or constructively in the custody of the state of California, instead appeared to be in federal custody in Lompoc, and therefore was not in actual or constructive state custody; he had not alleged a basis to excuse the requirement of state custody; and even assuming the facts in the petition were true, he had not alleged facts establishing a prima facie case for habeas relief.