Supreme Court of California Justia
Citation 45 Cal. 4th 1063, 202 P.3d 427, 90 Cal. Rptr. 3d 344

People v. Villa

Filed 3/16/09 (this opinion should precede the companion case, S153183, also filed 3/16/09)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S151561
v.
Ct.App.
1/3
A111891
AVELINO CEJA VILLA,
Alameda
County
Defendant and Appellant. )
Super.
Ct.
No.
97879

Avelino Ceja Villa, a lawful resident alien, pleaded guilty to a felony in this
state in 1989 and served a three-year period of probation. Now, many years later,
he is facing removal from this country by federal immigration authorities,
allegedly because of his 1989 conviction. In a companion case, we address
whether, and to what extent, persons in similar situations are entitled to have their
guilty pleas vacated by a writ of error coram nobis. (People v. Kim (Mar. 16,
2009, S153183) __ Cal.4th ___.) In this case, we hold that because Villa is no
longer in California custody as a result of his 1989 conviction, but is instead in
federal custody in another state, he is ineligible for relief by way of a writ of
habeas corpus. In suggesting otherwise, the Court of Appeal erred.
FACTS
Villa resides in this country but is not a United States citizen; he is a citizen
of Mexico. He applied for lawful permanent resident status in 1987, under a
federal amnesty program. In 1989, while his residency application was pending,
1


he pleaded guilty in Alameda County Superior Court to violating Health and
Safety Code section 11351, possession of cocaine for sale. As a result, the court
placed him on probation for three years. At that time, he was told the Immigration
and Naturalization Service (INS)1 had not placed a deportation hold on him,
although the prosecutor noted that there “[s]hould be” one. The INS was
apparently untroubled by his felony conviction, however, for in 1990 it granted
him lawful permanent resident status.
In 2005, Villa applied to the INS to renew his permanent resident status.
The INS instead arrested him and served him with a notice to appear for removal
proceedings. The only basis for his detention and pending deportation was his
1989 conviction. Villa alleges he is currently in the custody of the INS in a
contract detention facility in Alabama.2
After being placed in federal detention, Villa filed a petition for a writ of
error coram nobis in the Alameda County Superior Court,3 making three
allegations: (1) That when he entered his plea the trial court failed to advise him
under Penal Code section 1016.5 of the possibility he could be deported as a result

1
Like the Court of Appeal below and the parties, we will continue to refer to
the federal authorities as the “INS,” although that agency has since been
reorganized into the Department of Homeland Security. Deportations are now
prosecuted by United States Immigration and Customs Enforcement. (See U.S. v.
Garcia-Beltran
(9th Cir. 2006) 443 F.3d 1126, 1129, fn. 2 [“The INS is now
known as Immigration and Customs Enforcement (ICE)”].)
2
Villa requests we take judicial notice of two articles from local newspapers
describing the federal immigration detention facility in Etowah, Alabama. As
these articles are unnecessary to the resolution of this case, the request is denied.
(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45-46, fn. 9.)
3
As his conviction was attained by a plea with no appeal, the trial court was
the proper court in which to seek coram nobis relief. (Pen. Code, § 1265.)
2


of his conviction; (2) his trial counsel was constitutionally ineffective for
misadvising him he would not be deported as a result of his guilty plea; and (3) his
rights under the Vienna Convention for Consular Relations and Optional Protocol
on Disputes of April 24, 1963 (21 U.S.T. 77, T.I.A.S. No. 6820) (the Vienna
Convention) were violated because he was not told of his right to contact the
Mexican Consulate. The trial court denied the petition, first finding the court that
had taken his plea in 1989 had in fact advised him of its immigration
consequences. (The record of the plea proceeding confirms this conclusion.) The
trial court also ruled Villa had failed to allege facts demonstrating ineffective
assistance of counsel and that the proof of his crime was “extremely strong,”
presumably rendering any treaty violation harmless. Villa appealed, raising the
issues of the alleged ineffectiveness of counsel and the treaty violation.
The Court of Appeal rejected both claims, finding that the alleged treaty
violation should have been raised on direct appeal, citing Breard v. Greene (1998)
523 U.S. 371, 375-376. The appellate court further held that Villa’s
ineffectiveness of counsel claim was not cognizable on coram nobis. It then
considered whether it could grant relief by considering Villa’s coram nobis
petition as a petition for a writ of habeas corpus. (See Escamilla v. Department of
Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 511 [“The label given
a petition, action or other pleading is not determinative; rather, the true nature of a
petition or cause of action is based on the facts alleged and remedy sought in that
pleading”].) In a split decision, the appellate court concluded that although Villa
was in federal custody in Alabama and not in California state custody, he could
challenge the legality of that custody by filing a habeas corpus petition in
California. But the appellate court ultimately denied relief because Villa did not
allege his federal custody was due solely to his California conviction. The
concurring justice agreed that relief on both coram nobis and habeas corpus should
3
be denied, but disagreed that Villa’s federal custody entitled him to challenge his
long-final state conviction in a state habeas corpus petition.
Villa did not seek review in this court. Although the People prevailed in
the appellate court, they petitioned for review, contending the Court of Appeal
incorrectly held that a writ of habeas corpus was an available remedy for a litigant,
like Villa, who has already served his state sentence and who is presently detained
by a governmental entity other than the State of California.
Because the Court of Appeal’s decision conflicted with In re Azurin (2001)
87 Cal.App.4th 20, we granted review.
DISCUSSION
The writ of habeas corpus enjoys an extremely important place in the
history of this state and this nation. Often termed the “Great Writ,” it “has been
justifiably lauded as ‘ “the safe-guard and the palladium of our liberties” ’ ” (In re
Saunders (1999) 21 Cal.4th 697, 704) and was considered by the founders of this
country as the “highest safeguard of liberty” (Smith v. Bennett (1961) 365 U.S.
708, 712). As befits its elevated position in the universe of American law, the
availability of the writ of habeas corpus to inquire into an allegedly improper
detention is granted express protection in both the United States and California
Constitutions. (U.S. Const., art. I, § 9, cl. 2; Cal. Const., art. I, § 11.) In this state,
availability of the writ of habeas corpus is implemented by Penal Code section
1473, subdivision (a), which provides: “Every person unlawfully imprisoned or
restrained of his liberty, under any pretense whatever, may prosecute a writ of
habeas corpus, to inquire into the cause of such imprisonment or restraint.”
(Italics added.)
As the italicized text in Penal Code section 1473, subdivision (a)
demonstrates, a necessary prerequisite for issuance of the writ is the custody or
restraint of the petitioner by the government. “Thus, it is well settled that the writ
4
of habeas corpus does not afford an all-inclusive remedy available at all times as a
matter of right. It is generally regarded as a special proceeding. ‘Where one
restrained pursuant to legal proceedings seeks release upon habeas corpus, the
function of the writ is merely to determine the legality of the detention by an
inquiry into the question of jurisdiction and the validity of the process upon its
face, and whether anything has transpired since the process was issued to render it
invalid.’ ” (In re Fortenbury (1940) 38 Cal.App.2d 284, 289.)
The key prerequisite to gaining relief on habeas corpus is a petitioner’s
custody. Thus, an individual in custody for a crime (or alleged crime) may —
within limits — challenge the legality of that detention on habeas corpus. A
petitioner in custody can also challenge the conditions of confinement, a challenge
related not to the petitioner’s underlying conviction but instead to his or her actual
confinement. (In re Allison (1967) 66 Cal.2d 282, 285 [“The writ of habeas
corpus may be sought by one lawfully in custody for the purpose of vindicating
rights to which he is entitled even in confinement”].)
In previous eras, the custody requirement was interpreted strictly to mean
actual physical detention. (Matter of Ford (1911) 160 Cal. 334, 339-342 [habeas
corpus unavailable for one released on bail]; In re Gow (1903) 139 Cal. 242, 243
[same, for one released on own recognizance; improper to voluntarily submit to
custody in order to file a writ petition]; see Parker v. Ellis (1960) 362 U.S. 574
(per curiam) [habeas corpus petitioner’s release from prison before his case could
be heard by the Supreme Court rendered his case moot and the court lacked
jurisdiction to proceed].) This view has since been somewhat relaxed. Thus, “the
decisional law of recent years has expanded the writ’s application to persons who
are determined to be in constructive custody. Today, the writ is available to one
on parole (In re Jones (1962) 57 Cal.2d 860), probation (In re Osslo (1958) 51
Cal.2d 371), bail (In re Petersen (1958) 51 Cal.2d 177), or a sentenced prisoner
5
released on his own recognizance pending hearing on the merits of his petition (In
re Smiley (1967) 66 Cal.2d 606).” (In re Wessley W. (1981) 125 Cal.App.3d 240,
246.) A sentence of a fine or imprisonment (in the alternative) similarly suffices
to meet the custody requirement for habeas corpus relief. (In re Catalano (1981)
29 Cal.3d 1, 7-9.)
Habeas corpus practice in the federal courts has generally followed this
trend. (See, e.g., Jones v. Cunningham (1963) 371 U.S. 236 [defendant released
on parole is still “in custody” for federal habeas corpus purposes]; Hensley v.
Municipal Court (1973) 411 U.S. 345 [same, re defendant released on his own
recognizance]; Carafas v. LaVallee (1968) 391 U.S. 234, 238-241 [custody
requirement satisfied although the petitioner was unconditionally released before
completion of proceedings on his habeas corpus petition].)
Under all of these scenarios, the habeas corpus petitioner is deemed to be in
constructive custody because he or she “is subject to ‘restraints not shared by the
public generally’ ” (In re Smiley, supra, 66 Cal.2d at p. 613, quoting Jones v.
Cunningham, supra, 371 U.S. at p. 240) and “may later lose his liberty and be
eventually incarcerated” (In re Wessley W., supra, 125 Cal.App.3d at p. 246).
By contrast, collateral consequences of a criminal conviction — even those
that can later form the basis of a new criminal conviction — do not of themselves
constitute constructive custody. For example, in In re Stier (2007) 152
Cal.App.4th 63, a medical doctor pleaded guilty in 2000 to taking indecent
liberties with a child in North Carolina. He completed his probation in California
and duly registered as a sex offender under Penal Code section 290. He also
reported his crime to the California Medical Board, which required him to serve a
five-year supervised probation and undergo a psychiatric evaluation, but
eventually found him fit to practice medicine.
6
In 2003, a new law was enacted mandating revocation of the medical
license of anyone required to register as a sex offender. Stier then filed a petition
for a writ of habeas corpus, claiming the requirement that he register as a sex
offender constituted constructive custody for habeas corpus purposes. The trial
court agreed and granted the writ, but the Court of Appeal reversed, explaining:
“Although respondent asserted in his petition that ‘his liberty is unlawfully
restrained in violation of the laws of the State of California,’ for purposes of
proving entitlement to habeas corpus relief in the present case, he is not.
Respondent’s allegation that he is ‘under the constructive custody of the State of
California because if he fails to register, he is subject to criminal prosecution’ does
not ‘satisfy the habeas corpus jurisdictional requirements under California law.’
[Citation.] Since respondent ‘is not in prison or on probation or parole or
otherwise in constructive custody, the remedy of habeas corpus is not available to
him—and it is immaterial that lingering noncustodial collateral consequences are
still attached to his conviction.’ [Citation.] Neither the prospect of the loss of
respondent’s medical license nor the speculative risk of future custody in the event
he fails to register as a sex offender proves constructive custody as required in a
habeas corpus action. [Citations.] The ‘states’ sexual offender registration laws
do not render a habeas petitioner “in custody” because they are a collateral
consequence of conviction that do not impose a severe restraint on an individual’s
liberty. [Citations.]’ ” (In re Stier, supra, 152 Cal.App.4th at pp. 82-83, italics
added; see also In re Wessley W., supra, 125 Cal.App.3d at p. 247 [listing of
petitioner’s name in a rap sheet is not constructive custody].)
In addition to the sex offender registration requirement and the possible
loss of a professional license, other collateral consequences of a criminal
conviction may continue well after the conviction and the completion of the
sentence, including one’s “inability to vote, engage in certain businesses, hold
7
public office, or serve as a juror.” (Maleng v. Cook (1989) 490 U.S. 488, 491-
492.) Amici curiae remind us that a criminal conviction will often preclude legal
firearm ownership.4 While the continuing existence of the collateral
consequences of a criminal conviction may be relevant to determining a mootness
claim (Maleng v. Cook, at pp. 491-492), “once the sentence imposed for a
conviction has completely expired, the collateral consequences of that conviction
are not themselves sufficient to render an individual ‘in custody’ for the purposes
of a habeas attack upon it” (id. at p. 492).
We face in the instant case the application of an increasingly familiar
collateral consequence of a criminal conviction: deportation. Here, as in the
companion case, People v. Kim, supra, __ Cal.4th ___, a longtime legal resident
faces involuntary removal from the country and possibly permanent separation
from his family and friends as a result of a criminal conviction entered long ago.
Only one California case has addressed whether persons in INS custody pending
deportation proceedings, who have served their sentences and are no longer in
actual state custody, can be considered to be in the state’s constructive custody for
habeas corpus purposes. In In re Azurin, supra, 87 Cal.App.4th 20, the petitioner,

4
For example, it is a felony for “[a]ny person who has been convicted of a
felony under the laws of the United States, the State of California, or any other
state, government, or country” to “own[], purchase[], receive[], or [have] in his or
her possession or under his or her custody or control any firearm.” (Pen. Code,
§ 12021, subd. (a).) Some misdemeanor convictions result in a 10-year ban on
firearm ownership. (Id., subd. (c)(1).) Further, under federal law, no one “who
has been convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year” (18 U.S.C. § 922(g)(1)) or “who has been convicted in any
court of a misdemeanor crime of domestic violence” (id., § 922(g)(9)) may
“possess . . . any firearm or ammunition” or may “receive any firearm or
ammunition which has been shipped or transported in interstate or foreign
commerce” (id., § 922(g)).
8


a Philippine national living in the United States, pleaded guilty in 1990 to having
committed a felony. He was sentenced to a term in the California Youth
Authority, thereafter completed his parole, and was released from custody. When
the INS sought to deport him in 1998 by relying on his 1990 conviction, he filed a
petition for a writ of habeas corpus, claiming he was in the constructive custody of
the State of California because he was in INS custody as a result of his 1990 state
conviction. The Azurin court concluded the boundaries of the constructive
custody concept are not so expansive: “[A]lthough any custody of Azurin under
the deportation proceedings was apparently based solely on the ‘fact’ of his 1990
conviction in California [citation], during those proceedings Azurin was not ‘in the
custody of the same sovereign responsible for the original conviction,’ but instead
was ‘in the custody of the INS, an agency of a different sovereign.’ [Citations.]
Further, such deportation proceedings were simply a ‘collateral consequence’ of
Azurin’s 1990 conviction. [Citations.] As such, the pendency of those
proceedings, without more, did not constitute ‘custody’ in California under such
1990 conviction for purposes of satisfying the habeas corpus jurisdictional
requirements of California law.” (Id. at p. 26, fn. omitted; see also In re Wessley
W., supra, 125 Cal.App.3d 240 [defendant whose probation had terminated was
not in constructive custody].)
We agree with this reasoning and apply it here. Villa completed his
probation for his 1989 conviction many years ago and is no longer in any form of
state custody, actual or constructive, as a result of that conviction. That the INS, a
completely different governmental entity, chose to resurrect that old conviction
and use it to form the basis of a new and collateral consequence for Villa, while
undoubtedly unfortunate for him and his family, does not — without more —
convert his detention by federal immigration authorities in Alabama into some
late-blossoming form of custody for which the State of California is responsible.
9
Both parties and the Court of Appeal below discuss the relevance of the
fact that an order to show cause, should one issue, would be directed to a person
— Villa’s federal custodian — who arguably would have no legal obligation to
comply. Penal Code section 1477 specifies that “[t]he writ must be directed to the
person having custody of or restraining the person on whose behalf the application
is made, and must command him to have the body of such person before the Court
or Judge before whom the writ is returnable, at a time and place therein specified.”
From this, the People argue habeas corpus in inappropriate here because “a
California court lacks jurisdiction to direct federal immigration officials to comply
with a state writ of habeas corpus.” By contrast, Villa adopts the reasoning of the
Court of Appeal below that “[s]ection 1477 is not an impediment to the court
entertaining a petition . . . . The import of section 1477 is not to effectuate habeas
corpus relief, but is to commence adversarial proceedings.”
That Villa is being detained by a different sovereign is not necessarily
dispositive for habeas corpus purposes. True, in a typical habeas corpus case, the
writ normally is directed to the custodian. (Pen. Code, § 1477.) “The role that the
writ of habeas corpus plays is largely procedural. It ‘does not decide the issues
and cannot itself require the final release of the petitioner.’ [Citation.] Rather, the
writ commands the person having custody of the petitioner to bring the petitioner
‘before the court or judge before whom the writ is returnable’ (Pen. Code, § 1477),
except under specified conditions (id., §§ 1481-1482), and to submit a written
return justifying the petitioner’s imprisonment or other restraint on the petitioner’s
liberty (id., § 1480).” (People v. Romero (1994) 8 Cal.4th 728, 738, fn. omitted,
italics added.) But as Villa argues, habeas corpus “is not now and never has been
a static, narrow, formalistic remedy; its scope has grown to achieve its grand
purpose — the protection of individuals against erosion of their right to be free
10
from wrongful restraints upon their liberty.” (Jones v. Cunningham, supra, 371
U.S. at p. 243.)
Thus, for example, in In re Shapiro (1975) 14 Cal.3d 711, we held that a
state parolee subsequently arrested by federal authorities and detained in an out-
of-state federal detention facility (McNeil Island in the State of Washington) could
seek state habeas corpus relief when the state placed a detainer hold on him with
federal officials. (Id. at pp. 714-715.) Although Shapiro (like Villa) was being
held by a different sovereign in a different state, his petition did not seek to
ameliorate the terms or conditions of his confinement in the federal penitentiary or
to have federal officials respond to the allegations. Rather, it was directed to the
California Adult Authority (the precursor to the Board of Parole Hearings). “It is
the existence of the detainer initiated in California which is causing the petitioner
deleterious consequences at McNeil Island, and petitioner correctly concludes that
if the parole violator warrant is invalid the detainer itself will be removed.” (Id. at
p. 715.)
The critical factor in determining whether a petitioner is in actual or
constructive state custody, then, is not necessarily the name of the governmental
entity signing the paycheck of the custodial officer in charge, or even if the
petitioner is within the geographic boundaries of the State of California. Instead,
courts should realistically examine the nature of a petitioner’s custody to
determine whether it is currently authorized in some way by the State of
California. Unlike the petitioner in In re Shapiro, supra, 14 Cal.3d 711, for
example, Villa is not subject to a detainer hold placed by California state officials.
Nor is his detention in Alabama either a part of the sentence (probation) the
Alameda County Superior Court imposed for his 1989 crime (In re Osslo, supra,
51 Cal.2d at p. 376 [probation is custody for habeas corpus purposes]) or
otherwise authorized by state law. Instead, his detention is directly traceable to
11
applicable federal laws governing immigration and to the discretion of federal
immigration officials and, presumably, that of the United States Attorney General.
Under such circumstances, Villa cannot be considered to be in custody for state
habeas corpus purposes.
Villa raises several arguments against this conclusion, but none is availing.
Emphasizing the flexible nature of the habeas corpus remedy, he argues we should
further expand the definition of “custody” to include his case. Indeed, he frankly
admits he “seeks a redefinition of the habeas corpus remedy beyond the traditional
prerequisite of actual state custody.” As we have explained, however, although a
liberalization of the meaning of “custody” has occurred over the years, all such
expansions have involved substitutes (such as parole, probation, or release on bail)
for an actual custodial sentence the trial court could have imposed, or are
otherwise related to some official state action (like a detainer hold) connected to a
person’s custodial status. The present restraint on Villa’s freedom, while perhaps
factually traceable to his 1989 state conviction (inasmuch as the immigration
authorities cite the conviction as the reason for deportation), simply has too little
to do with his long-final state conviction and completed sentence. Villa’s proposal
for a further expansion of the meaning of custody for habeas corpus purposes
would stretch the concept past the breaking point and convert habeas corpus into
an all-inclusive, free-floating, postconviction remedy untethered to its historical
moorings.
Villa also argues that both state and federal law allow the filing of a habeas
corpus petition to challenge the validity of a prior conviction, even though the
sentence for the prior conviction has been fully served. The existence of prior
felony convictions are, of course, a common reason why a criminal sentence is
enhanced (People v. Black (2007) 41 Cal.4th 799, 818 [“ ‘[R]ecidivism . . . is a
traditional, if not the most traditional, basis for a sentencing court’s increasing an
12
offender’s sentence’ ”]), and habeas corpus is available to challenge the
constitutionality of such prior convictions (People v. Allen (1999) 21 Cal.4th 424,
429). But when an offender’s present sentence is lengthened as a result of a prior
conviction, the offender’s custody is directly attributable to the prior conviction.
The sentence for Villa’s 1989 crime, by contrast, terminated long ago, and the
state has not sought to impose any additional punishment on him as a result of that
offense.
Garlotte v. Fordice (1995) 515 U.S. 39, also cited in support, is similarly
distinguishable. In Garlotte, the petitioner was sentenced to a determinate term of
three years’ imprisonment for marijuana possession with the intent to distribute.
He was also sentenced to two concurrent indeterminate life terms for two counts
of murder, to be served consecutively to the term for marijuana possession. The
trial court ordered the petitioner to serve the determinate sentence first and then at
least 10 years of the life sentence. The petitioner filed a habeas corpus petition
seeking to withdraw his plea to the possession count, but as his three-year sentence
for that crime had expired, the lower courts ruled he was no longer in custody for
that crime despite the fact he was still serving two life terms. The high court
disagreed, viewing the petitioner’s “sentences in the aggregate, not as discrete
segments” (id. at p. 47) and noting that a reversal of the three-year sentence for
possession could have affected the setting of an overall parole eligibility date (id.
at p. 46, fn. 5). Thus, for habeas corpus purposes he was deemed still in custody
for the marijuana possession conviction.
As is apparent on its face, Garlotte is distinguishable from Villa’s case
because, viewing the sentences in the aggregate, the petitioner in Garlotte was still
in custody for his crimes. By contrast, Villa has been free of any state custody or
restraint since at least 1992, when his three-year probationary period ended.
13
Villa also argues there must be some form of remedy to persons in his
position, arguing that deportation is a harsh consequence for his long-final
criminal conviction. But Villa was afforded legal counsel and the right to a jury
trial in 1989. Prior to accepting his guilty plea, the trial court admonished him in
accordance with Penal Code section 1016.5 regarding the immigration
consequences of the plea. Villa could subsequently have moved to withdraw his
plea (id., § 1018), could have appealed, and then could have petitioned for review
in this court. While serving his three-year probation, he could have sought relief
on habeas corpus. In short, his available remedies under state law for an allegedly
uninformed plea were ample.
We appreciate that the consequences for Villa on the facts of this case seem
harsh and that “[a]lthough deportation is not technically a criminal punishment, it
may visit great hardship on the alien. [Citation.] As stated by the Court, speaking
through Mr. Justice Brandeis, in Ng Fung Ho v. White, 259 U.S. 276, 284,
deportation may result in the loss ‘of all that makes life worth living.’ ” (Fiswick
v. United States (1946) 329 U.S. 211, 222, fn. 8.) This complaint, however valid,
is more appropriately directed to the federal authorities who have chosen —
belatedly — to deport Villa for his past transgression after initially granting him
permanent lawful resident status and allowing him to live in this country for
15 years despite knowledge of his criminal conviction. Villa’s complaints may
also be fairly directed to the Legislature, which has enacted statutory remedies for
other persons facing analogous problems. (See, e.g., Pen. Code, § 1016.5
[authorizing a motion to vacate for a trial court’s failure to admonish defendant of
immigration consequences; no custody requirement]; id., § 1473.6 [authorizing a
motion to vacate for newly discovered evidence of fraud or false testimony by a
14
government agent; no custody requirement].)5 As a final avenue of relief, Villa
can seek a pardon from the Governor. (Mendez v. Superior Court (2001) 87
Cal.App.4th 791, 803.) We understand that these meager options may be cold
comfort for him, but their negligible nature does not convince us we should alter
the law of habeas corpus to hold he is in state custody for habeas corpus purposes.
Finally, Villa contends he is entitled both to a writ of error coram nobis and
to vacate his plea under Penal Code section 1016.5. He did not raise these issues
in a petition for review in this court or in an answer to the People’s petition.
Accordingly, they are not properly before us. (Scottsdale Ins. Co. v. MV
Transportation (2005) 36 Cal.4th 643, 654, fn. 2; see Cal. Rules of Court, rule
8.516.) In any event, as we explain in the companion to this case, People v. Kim,
supra, __ Cal.4th ___, claims such as Villa raised in his coram nobis petition in

5
“The legislative history of [Penal Code] section 1473.6 reflects the belief
that at the time of the introduction of the legislation, ‘Currently, other than a
pardon, no remedy exists for those no longer in the system to challenge their
judgment when they learn that their conviction was obtained in part because of
fraud or false evidence by a government official.’ (Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 1391 (2001-2002 Reg. Sess.) as amended Apr. 10, 2002,
p. 5.) The legislation was originally introduced to address a problem illustrated by
the so-called Rampart scandal [citation] in which it was discovered that certain
Los Angeles Police Department officers had engaged in misconduct, including
planting evidence, filing false police reports, committing perjury, and creating
nonexistent confessions. (Sen. Com. on Public Safety, Analysis of Sen. Bill No.
1391 (2001-2002 Reg. Sess.) as amended Apr. 10, 2002, p. 6; Assem. Com. on
Public Safety, Analysis of Sen. Bill No. 1391 (2001-2002 Reg. Sess.) as amended
Apr. 10, 2002, pp. 3-4.) Because the misconduct was discovered many years after
it occurred, those who were no longer in custody at the time of the discovery of the
misconduct would not be able to set aside their convictions
. (Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 1391 (2001-2002 Reg. Sess.) as amended
Apr. 10, 2002, p. 6; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1391
(2001-2002 Reg. Sess.) as amended Apr. 10, 2002, pp. 3-4; [citation].)” (People
v. Germany
(2005) 133 Cal.App.4th 784, 791, italics added, fns. omitted.)
15


the trial court — ineffective assistance of counsel, violation of the Vienna
Convention — are errors of law, not of fact, and are thus not cognizable on coram
nobis. Further, the record indicates the trial court informed him of the potential
immigration consequences of his plea, thereby satisfying Penal Code section
1016.5.
CONCLUSION
The Court of Appeal below, construing Villa’s petition as one for habeas
corpus, denied relief on the ground that he had failed to allege he was restrained of
his liberty “solely because of the California conviction” he suffered in 1989. We
agree with this result for a different reason: Villa is in neither actual nor
constructive state custody as a result of his 1989 conviction. Accordingly, the
judgment of the appellate court is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Villa
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XX 148 Cal.App.4th 473
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S151561
Date Filed: March 16, 2009
__________________________________________________________________________________

Court:

Superior
County: Alameda
Judge: Larry J. Goodman

__________________________________________________________________________________

Attorneys for Appellant:

Rodney Richard Jones, under appointment by the Supreme Court, for Defendant and Appellant.

Reed Smith, Paul D. Fogel; and Linda Starr for Northern California Innocence Project as Amicus Curiae on
behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Laurence
K. Sullivan, Christopher J. Wei and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and
Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Rodney Richard Jones
P. O. Box 189
45100 Main Street, Suite 4
Mendocino, CA 95460
(707) 937-0549

Jeffrey M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-3664
(415) 703-5897


Document Outline

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Petition for review after the Court of Appeal affirmed the denial of a petition for writ of error coram nobis. This case presents the following issue: Is a habeas corpus petitioner "restrained of his liberty" within the meaning of Penal Code section 1473, subdivision (a), when he is in the custody of federal immigration officials solely because of a California conviction on which the sentence has fully expired?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 03/16/200945 Cal. 4th 1063, 202 P.3d 427, 90 Cal. Rptr. 3d 344S151561Review - Criminal Appealclosed; remittitur issued

Parties
1The People (Plaintiff and Respondent)
Represented by Christopher J. Wei
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2The People (Plaintiff and Respondent)
Represented by Jeffrey Michael K. Laurence
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

3Villa, Avelino Ceja (Defendant and Appellant)
Represented by Rodney Richard Jones
Attorney at Law
P.O. Box 189
45100 Main Street
Mendocino, CA

4Northern California Innocence Project (Amicus curiae)
Represented by Paul D. Fogel
Reed, Smith, LLP
2 Embarcadero Center, Suite 2000
San Francisco, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Disposition
Mar 16 2009Opinion: Affirmed

Dockets
Apr 5 2007Received premature petition for review
  People, respondent Christopher Wei, counsel/DAG
Apr 10 2007Case start: Petition for review filed
  The People, respondent Christopher Wei, counsel/DAG
Apr 10 2007Record requested
 
Apr 13 2007Received Court of Appeal record
  file jacket/briefs/sealed envelope/accordian file
May 18 2007Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including July 9, 2007, or the date upon which review is either granted or denied.
Jun 13 2007Petition for review granted (criminal case)
  Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Jun 27 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel., Rodney Jones is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served on or before thirty (30) days from the date respondent's brief on the merits is filed.
Jun 29 2007Request for extension of time filed
  counsel for respondent requests extension of time to August 3, 2007, to file the opening brief on the merits.
Jul 6 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 3, 2007.
Jul 31 2007Opening brief on the merits filed
  counsel for respondent.
Aug 23 2007Request for extension of time filed
  counsel for aplt. requests extension of time to October 30, 2007, to file the answer brief on the merits.
Aug 29 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 30, 2007. No further extensions of time are contemplated.
Oct 30 2007Answer brief on the merits filed
  counsel for aplt.
Oct 30 2007Request for judicial notice filed (granted case)
  counsel for aplt.
Nov 7 2007Request for extension of time filed
  counsel for respondent requests extension of time to 12-19-07 to file the reply brief on the merits.
Nov 14 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including December 19, 2007. No further extensions of time are contemplated.
Nov 29 2007Reply brief filed (case fully briefed)
  counsel for resp.
Dec 19 2007Compensation awarded counsel
  Atty Jones
Dec 31 2007Request for extension of time filed
  Northern California Innocence Project requests extension of time to January 18, 2008, to file an application for permission to file an amicus curiae brief.
Jan 8 2008Extension of time granted
  On application of Northern California Innocence Project and good cause appearing, it is ordered that the time to serve and file the application for permission to file an amicus curiae brief is extended to and including January 18, 2008.
Jan 18 2008Received application to file Amicus Curiae Brief
  Northern California Innocence Project in support of appellant.
Jan 23 2008Permission to file amicus curiae brief granted
  Northern California Innocence Project in support of appellant.
Jan 23 2008Amicus curiae brief filed
  The application of Northern California Innocence Project for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 10 2008Case ordered on calendar
  to be argued on Wednesday, January 7, 2009, at 1:30 p.m., in San Francisco
Jan 7 2009Cause argued and submitted
 
Feb 11 2009Compensation awarded counsel
  Atty Jones
Mar 13 2009Notice of forthcoming opinion posted
 
Mar 16 2009Opinion filed: Judgment affirmed in full
  OPINION BY: Werdegar, J. --- joined by: George, C.J., Kennard, Baxter, Chin, Moreno and Corrigan, JJ.
Apr 17 2009Remittitur issued
 
Apr 21 2009Received:
  from CA 1/2 receipt for remittitur.

Briefs
Jul 31 2007Opening brief on the merits filed
 
Oct 30 2007Answer brief on the merits filed
 
Nov 29 2007Reply brief filed (case fully briefed)
 
Jan 23 2008Amicus curiae brief filed
 
Brief Downloads
application/pdf icon
Opening Brief for Appellant the People.pdf (69780 bytes)
application/pdf icon
Reply Brief for Appellant the People.pdf (48499 bytes)
application/pdf icon
Answer for the Appellee.pdf (250609 bytes)
application/pdf icon
Amicus Brief for the Innocence Project of Northern California.pdf (1951739 bytes)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 3, 2010
Annotated by kmtraver

Issue:
Can a noncitizen in federal immigration detention in Alabama, who is in detention solely as a result of a prior felony conviction in California for which the state sentence has fully been served, challenge his detention by a habeas corpus petition in California state court?

Procedural Posture and Background:
Avelino Ceja Villa, while in federal immigration detention in Alabama, filed a petition in Alameda County Superior Court seeking to vacate his California conviction for possession of cocaine for sale so that he could be released from detention. (The petition filed was a “writ of error coram nobis,” a common law writ used by persons who have already been convicted of a crime and have served their sentence, who seek to restore their rights, such as voting rights, to their pre-conviction state).

The Alameda County Superior Court denied the petition for writ of error coram nobis. The court of appeal affirmed this denial, but held that filing a habeas corpus petition in California would be a proper means of challenging the legality of the defendant’s custody in immigration detention. The People petitioned for review in California Supreme Court, contending that the appeals court incorrectly held that a writ of habeas corpus was a remedy for a litigant such as Villa.

Facts
In 1989, Villa pleaded guilty in California to a felony conviction of possession of cocaine for sale. Consequently, the court placed him on probation for three years. Villa, a citizen of Mexico, applied for lawful permanent resident status in the United States in 1987 and was granted this status in 1990. Then, in 2005, when Villa applied to renew his lawful immigration status, he was arrested by Immigration and Customs Enforcement and placed in deportation proceedings. The only basis for his detention and pending deportation was his 1989 conviction in California.

In an attempt to contest his detention, Villa made three allegations in his writ of error coram nobis: (1) when he pleaded guilty the trial court failed to advise him of the possibility under Penal Code 1016.5 that he could be deported for his conviction; (2) his trial counsel was ineffective for misadvising him that he would not be deported for a guilty plea; and (3) his rights under the Vienna Convention for Consular Relations and Optional Protocol on Disputes of April 24, 1963 were violated because he was not told of his right to contact the Mexican Consulate.

The trial court found against him, so he appealed the issues of ineffective counsel and the treaty violation. The court of appeal rejected both claims, concluding that the proof of his crime was sufficient to make any treaty violation harmless, and that an ineffective assistance of counsel claim could not be brought in a writ of error coram nobis. The court held, however, that Villa could challenge the legality of his custody by filing a habeas corpus petition in California, yet denied relief because Villa did not allege that his detention was solely a result of his California conviction.

The People then appealed the holding that Villa could properly challenge his detention by habeas corpus in California state court. The California Supreme Court granted review because the appeals court holding conflicted with In re Azurin, 87 Cal. App. 4th 20 (2001).

Main Arguments by the People in the California Supreme Court:
1) The collateral consequences of a fully served state conviction cannot constitute actual or constructive custody.
Court response: The Court agreed. See holding and reasoning sections.

2) The writ of habeas corpus under California Penal Code Section 1473 must be directed at the persons who have actual custody of the petitioner.
Court response: The Court disagreed. The court found that Villa’s detention by “a different sovereign is not necessarily dispositive.” The critical question is rather the “nature” of the petitioner’s custody, such as federal immigration rather than state criminal detention. Villa, 202 P.3d, at 433-34.

3) When a person is no longer in actual or constructive state custody for a prior conviction, California courts lack jurisdiction to consider a petition for habeas corpus.
Court response: The Court agreed. See holding and reasoning sections.

Main Arguments by Villa in the California Supreme Court:
(1) The definition of custody should be expanded to encompass claims for violations of fundamental constitutional rights because his current custody is traceable to his 1989 conviction.
Court response: Villa’s present detention has little to do with his state conviction and completed state sentence, thus Villa’s proposal would “stretch the concept [of habeas corpus] past the breaking point and concert habeas corpus into an all-inclusive, free-floating, postconviction remedy untethered to its historical moorings.” Villa, 202 P.3d, at 434.

(2) Both state and federal law allow the filing of a habeas corpus petition to challenge the validity of a prior conviction, even though the sentence for the prior conviction has been served.
Court response: The court distinguished Villa’s case from cases where a recidivist offender’s present sentence is lengthened as a result of the prior conviction or where an offender as serving aggregate sentences.

(3) There must be some form of remedy for persons facing the harsh consequence of deportation for a criminal conviction that occurred long ago.
Court response: Villa was informed that he could be deported for pleading guilty, and Villa failed to withdraw his plea, appeal or petition for review in the Supreme Court. Thus, his remedies under state law were ample.

Holding:
The California Supreme Court affirmed the lower courts’ dismissal of Villa’s case, but on other grounds. The Supreme Court held that because Villa was neither in actual or constructive state custody, he was not restrained of his liberty within the meaning of California Penal Code Section 1473, subdivision (a), which provides: “Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment of restraint.” In sum, because Villa was not in state custody, he could not seek habeas corpus relief in a California state court for his federal immigration detention.

Reasoning and Rules:
Penal Code section 1473, which provides the right of habeas corpus in California, requires the custody or restraint of the petitioner by the government of California as a prerequisite to relief. Although in recent years the writ of habeas corpus in California has been extended as relief from a sentence of imprisonment or fine to “constructive” custody, it has only been expanded to those sentenced and released on their own cognizance or bail or those on parole and probation.

In contrast, collateral consequences of a criminal conviction, such as deportation proceedings, do not constitute constructive custody. Based on precedent, the Court found that once a sentence has completely expired, collateral consequences are not of themselves sufficient to render an individual “in custody” for purposes of habeas corpus relief.

The Court noted that Villa was detained by a completely different governmental entity, federal immigration, but stated that detention by a different sovereign was not necessarily dispositive for habeas corpus purposes. The critical factor was rather the nature of the custody and whether the current custody was authorized by the State of California. Finding Villa’s detention to be “directly traceable” to federal immigration laws and officials, the Court concluded that Villa could not be considered in California custody for state habeas purposes. The Court recognized that deportation was a “harsh consequence” but indicated that Villa’s complaint was more appropriately directed at the federal authorities responsible for his deportation, at the state legislature, or at the governor in a request for a pardon.

The Court did not decide the issue of Villa’s entitlement to a writ of error coram nobis or his request to vacate his conviction because Villa did not raise these issues in his petition for review, thus the issues were not properly before the Court.

Background and Context:
The Court notes, “We face in the instant case the application of an increasingly familiar collateral consequence of criminal conviction: deportation. Here, as in the companion case, People v. Kim [45 Cal. 4th 1078 (2009)] a longtime legal resident faces involuntary removal from the country and possibly permanent separation from his family and friends as a result of a criminal conviction entered long ago.” Villa, 202 P.3d, at 432.

What the Court is referring to in noting the “increasingly familiar collateral consequence” of deportation is the impact of the requirement of the Immigration and Nationality Act that a noncitizen “convicted of an aggregated felony” is automatically subject to deportation without judicial review.

In 1996, Congress passed two key laws, the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The relevant provision from the 1996 legislation is 8 U.S.C. § 1252(a)(2)(C), which applies to all noncitizens, even legal permanent residents, also known as green card holders, who have committed any of the “aggravated felonies” in 8 U.S.C.A. § 1101(a)(43). This provision strips judges presiding over deportation hearings of the ability to consider mitigating circumstances, such as how long ago the noncitizen was convicted of the crime which triggered the deportation, evidence that the person has changed his life substantially and has since contributed to his community, that the noncitizen has been in the country since he was small child and thus does not speak the language or know the customs of the country he will be deported to, or that he has small children to support.

Thus, as the law now stands, noncitizens that have been convicted of any of the enumerated offenses in 8 U.S.C.A. § 1101(a)(43) can only avoid deportation through a pardon from their state governor, which recently occurred in a well-publicized case in New York. See Nina Bernstein, Paterson Rewards Redemption With a Pardon, February 18, 2010 at http://www.nytimes.com/2010/03/07/nyregion/07pardon.html and Nina Bernstein, Judge Keeps His Word to Immigrant Who Kept His, March 6, 2010. http://www.nytimes.com/2010/02/19/nyregion/19judge.html?ref=nyregion.

Annotation by K. Traverso