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Name: People v. Chien
Case #: H031010
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/07/2008

Penal Code section 1016.5 allows withdrawal of a plea only if the trial court has failed to advise the defendant of the potential immigration consequences. Defendant, a Taiwanese immigrant, pleaded to possession of methamphetamine for sale and was granted probation. At the entry of plea, the court gave Penal Code section 1016.5’s requisite advisement, that a conviction might have adverse immigration consequences. Defendant successfully completed probation and lived a crime-free life. Many years later he was detained by immigration authorities upon re-entering the country and issued a deportation notice. Defendant moved to set aside his plea under Penal Code section 1016.5 alleging ineffective assistance of counsel for failure to advise of, or defend against, the adverse immigration consequences. The trial court denied the motion, believing it lacked jurisdiction to entertain a claim of IAC under section 1016.5. The Court of Appeal agreed. The Legislature’s broad statement of intent notwithstanding, the statute only addresses the trial court’s duty to advise, not counsel’s, and it provides a remedy only for that particular omission. The court recognized defendant would be left without remedy since the time for appeal had long since passed, a habeas could not be filed as defendant was no longer in custody, and IAC is not a proper basis for a corum nobis writ. While that is unfortunate, the lack of an available remedy is an insufficient basis to extend the applicability of an express, statutory remedy.