People v. Chien
In People v. Chien (2008) 159 Cal.App.4th 1283, there was a record of the plea proceedings, which affirmatively showed that the trial court had fulfilled its statutory duty to admonish the defendant of the immigration consequences of his plea. The admonishment given by the court did not, however, go on to specify that the particular offense to which the defendant was pleading no contest was an offense that would require mandatory permanent deportation. The defendant first moved to vacate the conviction based on the lack of specificity in the immigration warning given by the court.
The trial court treated the matter as a petition for writ of error coram nobis and denied the petition without a hearing. The defendant then brought a motion to vacate the plea under Penal Code section 1016.5, based solely on the ground of IAC. The defendant alleged that his trial counsel knew that his client was not a citizen but failed to investigate any immigration matters, never advised the defendant of the immigration consequences of the particular plea, and never defended the case with any actual knowledge of immigration consequences dependent upon the filed charge. The trial court denied the motion, determining that it did not have jurisdiction to review a claim of IAC under the provisions of Penal Code section 1016.5, which deal with the court's obligation to admonish a defendant of the immigration consequences of a guilty or no contest plea. (People v. Chien, supra, 159 Cal.App.4th 1283, 1286-1287.)
It was in that context that the appellate court stated, "Missing from defendant's Penal Code section 1016.5 motion is any allegation that the trial court failed to provide the requisite advisement; indeed, it is undisputed that the trial court fulfilled its duty to advise under section 1016.5. Defendant instead argues that the statutory remedy established in section 1016.5 should extend to a failure not specified in the statute--counsel's failure to provide competent representation relating to the potential immigration consequences of conviction." (People v. Chien, supra, 159 Cal.App.4th 1283, 1288.)