THE PEOPLE v. JIMMY JOHN FLETCHER (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jimmy John Fletcher was charged by felony complaint in 1996 with one count of possession of cocaine base (Health & Saf.Code, § 11350).   Represented by appointed counsel, Fletcher entered a negotiated plea of no contest to the charge and admitted he had violated probation in an earlier drug possession case.   Prior to entering his plea, Fletcher was advised that if he was not a citizen of the United States, he “could be deported, denied naturalization, denied a legal right to re-enter the country or denied amnesty.”   Pursuant to the negotiated agreement, the trial court suspended imposition of sentence and placed Fletcher on three years of formal probation on condition he serve 180 days in county jail.   The court revoked and reinstated probation in the earlier case with the original terms and conditions.

Represented by retained counsel, on February 19, 1999 Fletcher filed a statutory motion to vacate his plea under Penal Code section 1016.5, which governs the duty of the trial court to admonish a defendant regarding the possible immigration consequences of his or her plea.   The trial court denied the motion on March 8, 1999.

On December 12, 2005 Fletcher filed a motion to vacate his no contest plea, to enter a plea of not guilty and to dismiss the complaint pursuant to Penal Code section 1203.4, subdivision (a) (dismissal of charges upon successful completion of terms of probation).   The trial court denied the motion on December 27, 2005.¹

Acting in propria persona, on January 5, 2010 Fletcher filed a second statutory motion to vacate his plea under Penal Code section 1016.5.   The trial court denied the second motion on March 24, 2010, explaining it had been heard and denied as without merit on March 8, 1999.

On March 30, 2010 the trial court granted Fletcher's renewed motion to vacate his guilty plea, to enter a plea of not guilty and to dismiss the complaint under Penal Code section 1203.4, subdivision (a).

On January 11, 2011 Fletcher filed a motion to vacate the judgment based on ineffective assistance of counsel, claiming his defense counsel had failed to properly advise him of the immigration consequences of his plea.   The trial court denied the motion on January 20, 2011.²

On February 8, 2011 Fletcher filed a notice of appeal from the trial court's January 20, 2011 order.   Fletcher checked the boxes indicating his appeal was from a “guilty (or no-contest) plea or an admitted probation violation” and “challenges the validity of the plea or admission.”   He did not obtain a certificate of probable cause.

We appointed counsel to represent Fletcher on appeal.   After an examination of the record, counsel filed an opening brief in which no issues were raised.   On June 27, 2011 we advised Fletcher he had 30 days within which to personally submit any contentions or issues he wished us to consider.

On July 7, 2011 Fletcher filed a typed one-page supplemental brief in which he claimed he had not been adequately advised of the immigration consequences of his conviction and his counsel rendered ineffective assistance by failing to take steps to prevent any adverse immigration consequences.

We have examined the entire record and are satisfied Fletcher's attorney has fully complied with the responsibilities of counsel and no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly (2006) 40 Cal.4th 106, 112–113;  People v. Wende (1979) 25 Cal.3d 436, 441.)

The record plainly belies Fletcher's claim the trial court failed to properly advise him pursuant to Penal Code section 1016.5, subdivision (a).  (See People v. Gutierrez (2003) 106 Cal.App.4th 169, 174 [“substantial, not literal, compliance with section 1016.5 is sufficient”].)   To the extent Fletcher's motion to vacate the judgment was based on ineffective assistance of counsel, the denial of his motion is not appealable.  (People v. Gallardo (2000) 77 Cal.App.4th 971, 981–983.)   The proper vehicle for Fletcher to challenge the denial of his motion is a petition for writ of habeas corpus.   (In re Resendiz (2001) 25 Cal.4th 230, 237, fn. 2;  Gallardo, at p. 983.)

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Fletcher neither appeared in court nor was represented by counsel at this proceeding..  FN1. Fletcher neither appeared in court nor was represented by counsel at this proceeding.

FN2. Fletcher neither appeared in court nor was represented by counsel at the proceeding..  FN2. Fletcher neither appeared in court nor was represented by counsel at the proceeding.

WOODS, J. JACKSON, J.