COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT. Plaintiff and Respondent, v. Kern County Superior Court

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1 COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, F v. Kern County Superior Court ARMANDO ALVAREZQUINTERO, No. BF132212A Defendant and Appellant. EX PARTE APPLICATION TO EXPAND APPOINTMENT TO INCLUDE THE PREPARATION AND FILING OF A PETITION FOR WRIT OF HABEAS CORPUS; EXPEDITED DISPOSITION REQUESTED DEPORTATION HEARING SET FOR OCTOBER 16, 2012 TO THE HONORABLE BRAD R. HILL, PRESIDING JUSTICE, AND THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL, FIFTH APPELLATE DISTRICT: Appellant, Armando AlvarezQuintero, hereby applies to this court for an expansion of his appellate counsel s appointment to include 12 hours for the preparation and filing of a petition for writ of habeas corpus in the District Court of Appeal, in the exercise of this Court s original jurisdiction. This application is based on the appellate record in People v. AlvarezQuintero. (5 Crim. F ) DATED: August 22, 2012 Respectfully submitted, Jennifer Hansen Attorney for Appellant 1

2 DECLARATION OF APPELLANT COUNSEL JENNIFER HANSEN I, JENNIFER HANSEN, hereby declare as follows: 1. I am the appellate attorney appointed by this Court to represent Mr. AlvarezQuintero on appeal. 2. On August 10, 2011, appellant pled guilty in Kern County Superior Court to violations of Health and Safety Code section 11379, subdivision (a), Health & Safety Code section , subdivision (a), Health & Safety Code section 11378, Health and Safety Code section 11377, subdivision (a), and Penal Code section 25850, a misdemeanor. (1 C.T ) On October 31, 2011, in exchange for his pleas, appellant received a suspended sentence of three years of formal probation with the condition that he spend the first year in county jail. (1 C.T ) 3. After serving his jail sentence, appellant was detained by federal immigration authorities in Sacramento County Jail, although still on formal probation with Kern County. 3. On May 3, 2012, while appellant was detained, an attorney other than appellant s trial attorney filed a motion on appellant s behalf alleging a violation of the immigration advisements as required by Penal Code section as well as a MOTION TO VACATE PURSUANT TO...PADILLA v. KENTUCKY The content of the filing alleged ineffective assistance of counsel on the part of the trial attorney, who allowed appellant to plead guilty to five crimes subjecting appellant to removal from the United States. (1 C.T ) The motion included, as exhibits, declarations from appellant and the mother of his children, indicating that appellant would not have pled guilty had he known the immigration consequences of his plea. (1 C.T ) 4. At a hearing on appellant s claims, appellant s trial counsel testified that he did not remember researching the consequences of appellant s immigration situation nor advising appellant that his plea in the case would subject appellant to mandatory detention and deportation. (4 R.T ) Citing the two prong test described in Strickland v. 2

3 Washington (1984) 466 U.S. 668 [104 S.Ct. 2052; 80 L.Ed.2d 674] for ineffective assistance of counsel, the District Attorney conceded that trial counsel s performance fell below the standard for a reasonable attorney. (4 R.T ) The court accepted the prosecution s stipulation. (4 R.T. 232.) 5. At the hearing, the court found appellant did not establish prejudice under the second prong of the Strickland test, saying there was no indication that a more favorable plea or result would have occurred if appellant went to trial, and therefore the claim based on ineffective assistance of counsel was denied. (4 R.T ) 6. Appellate counsel was appointed on August 3, An opening brief has not yet been filed and there have been no extension requests yet. 7. Appellant is still detained in Sacramento County Jail, awaiting his immigration trial scheduled on October 16, In the course of researching the direct appeal issues in this case related to the trial court s denial of appellant s Penal Code section motion, I realized that appellant s efforts to raise his ineffective assistance of counsel claim with regard to his immigration consequences must be raised by habeas writ. The trial court, in considering the ineffective assistance claim and in applying Strickland, must necessarily have been treating appellant's motion as a habeas writ. (4 R.T. 232, 235, 236, 241.) Because there is no right to appeal the denial of a habeas writ by a superior court, in order to litigate the issue, appellant must raise the issue again in an original habeas writ proceeding in this Court. Appellant is still on Kern County probation (and will be until October 2014) and, therefore, considered to be in custody for purposes of habeas review. (See People v. Villa (2009) 45 Cal.4th 1063, 1069.) 9. Appellant does not speak English and used an interpreter throughout the proceedings in the trial court. He has a 10th grade education from Mexico and has no experience with the American legal system. (1 C.T. 248.) 10. Before he appeared in superior court to enter his guilty plea, 3

4 appellant signed a written plea agreement that was written in English. (1 C.T ) 11. The written plea agreement does contain an immigration warning. (1 C.T. 113.) 12. Although the interpreter has signed a declaration that she interpreted the written plea agreement, appellant did not understand that he would be deported from what she interpreted. (1 C.T. 116, ) 13. At the hearing in the superior court, trial counsel admitted he does not recall discussing any immigration consequences with appellant prior to entering the plea, or at the plea, and did not make any attempt to negotiate a plea that would have avoided immigration consequences as required under Padilla v. Kentucky (2010) 130 S.Ct. 1473, 1483, which held that criminal defense counsel have an affirmative duty to provide accurate information regarding the deportation consequences of a guilty plea when those consequences are clear. 14. Appellant would not have entered any guilty plea that would have had immigration consequences, and if properly advised, would have proceeded to trial if no plea could have been negotiated that would have avoided these severe immigration consequences. (1 C.T. 227, 230, Hill v. Lockhart (1985) 474 U.S. 52, [106 S.Ct. 366, 88 L.Ed.2d 203].) 15. Appellant s claim alleging ineffective assistance of counsel cannot be raised on direct appeal. A Penal Code section motion may not be granted on the grounds that the defendant received ineffective assistance of counsel from his or her attorney at the time of the plea. (People v. Chien (2008) 159 Cal.App.4th 1283.) Therefore, a writ of habeas corpus in the Court of Appeal via this Court s original jurisdiction is his only option to obtain this Court s review of this claim which was litigated below. 16. Some of the analysis in this argument will be very similar to factual and legal analysis I have already performed in reviewing appellant s possible claims on direct appeal. The petition will be based on the record already in front of the court in appellant s direct appeal. 4

5 17. I expect that I can complete the petition in 12 hours. 18. I do not believe that appellant can complete the petition on his own without the assistance of counsel. Appellant is currently incarcerated in the Sacramento County Jail in deportation proceedings. He was assisted by a Spanish interpreter at every court appearance and wrote his declaration in this case in Spanish. (1 C.T ) My communications with him thus far have been in Spanish. 19. I am requesting an expedited disposition of this application as appellant has a deportation hearing set for October 16, I declare under penalty of perjury that the foregoing is true and correct. Executed this day of August, 2012, in Los Angeles, California. Respectfully submitted, JENNIFER HANSEN Attorney for Appellant 5