Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA212789
THE COURT:Edenilson A. Cuatete (appellant) appeals from the order denying his motion to vacate his guilty plea to one count of first degree burglary (Pen. Code, § 459), one count of second degree burglary (§ 459), and one count of possession of a controlled substance (cocaine) (Health & Saf. Code, § 11350, subd. (a)). Appellant also admitted a prior felony conviction pursuant to section 667, subdivision (a)(1). Appellant was sentenced to serve 12 years four months in state prison.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant entered his plea on July 24, 2001. Appellant was scheduled for release on parole on October 9, 2007, and on that date he was served with a notice to appear for removal proceedings under section 240 of the Immigration and Nationality Act. Appellant appeared before the Immigration Court, and on April 16, 2008, he was found to be subject to removal. His appeal was dismissed by the Board of Immigration Appeals. Appellant’s petition for review before the United States Court of Appeals for the Ninth Circuit was dismissed on December 3, 2008, and his motion for reconsideration was denied on February 24, 2009. Appellant is apparently being held at the San Diego Correctional Facility.
On July 5, 2009, appellant submitted a motion to vacate his plea, which he also called a “writ of error coram nobis” (the petition). The record shows that on July 28, 2009, the trial court considered appellant’s petition and attachments. Appellant and his counsel did not appear. The trial court denied the petition, stating that appellant was properly advised of his immigration consequences at the time of his plea and had failed to state any legal justification to grant the petition. Appellant filed a notice of appeal on August 21, 2009.
We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that he had been unable to find any arguable issues. On November 16, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.
Appellant filed a supplemental brief on December 7, 2009, in which he contends that the trial court erred in denying his petition. He argues that: (1) counsel at the taking of the plea was ineffective, and he was prejudiced thereby; (2) he was not advised of some of the direct consequences of his plea; (3) his petition was viable even though it was grounded on ineffective assistance of counsel; and (4) regardless of how the petition was framed, the trial court should have considered and accepted his claim that he had been denied the constitutional right to effective counsel.
“Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel (People v. Rodriguez (1956) 143 Cal.App.2d 506, 508) or where the claim is that the defendant did not receive effective assistance from counsel.” (People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983; see also People v. Kim (2009) 45 Cal.4th 1078, 1095, 1104 (Kim); People v. Ibanez (1999) 76 Cal.App.4th 537, 546, fn. 13; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477). “Where coram nobis raises only such grounds, an appeal from the superior court’s ruling may be dismissed as frivolous. (See People v. Shorts (1948) 32 Cal.2d 502, 516-517; People v. Sumner (1968) 262 Cal.App.2d 409, 413, 414.)” (People v. Gallardo, supra, at p. 983.) The record shows that appellant’s motion also alleged that the court failed to comply with the requirement of section 1016.5 to properly advise him of immigration consequences and other consequences of his plea. Rather than dismiss, we address appellant’s claims, and we note that the trial court did also. As a result, appellant’s third and fourth arguments need not be addressed.
We first note that appellant’s petition was filed approximately eight years after his conviction, showing a lack of diligence (see Kim, supra, 45 Cal.4th at pp. 1096-1097), and that he has failed to cite any newly discovered facts that qualify as a basis for the petition. (Id. at p. 1091 [the writ’s purpose is to obtain relief from a judgment rendered while there existed a fact that would have prevented its rendition if the trial court had known it and where the fact was not unknown due to the defendant’s negligence].) “To qualify as the basis for relief on coram nobis, newly discovered facts must establish a basic flaw that would have prevented rendition of the judgment. (People v. Shipman [1965] 62 Cal.2d [226, ] 230; see People v. Trantow [1986] 178 Cal.App.3d [842, ] 845 [defendant’s ignorance that her alien status might result in deportation would not have ‘prevented’ the judgment].) Such facts often go to the legal competence of witnesses or litigants, or the jurisdiction of the court. New facts that would merely have affected the willingness of a litigant to enter a plea, or would have encouraged or convinced him or her to make different strategic choices or seek a different disposition, are not facts that would have prevented rendition of the judgment.” (Kim, supra, at p. 1103.) Based on these factors alone, the trial court clearly did not abuse its discretion in denying the petition.
In any event, the record shows that, at the taking of the plea, defense counsel told the court, “My client did have a question in regards to his residency. I informed him under the law I believe the following that if he pleads guilty to the burglary, it’s not a strike, but is a crime of moral turpitude. And it’s my understanding that the arson and this burglary he would have two crimes of moral turpitude and would be subject to deportation.” The court addressed appellant, stating, “With that understanding, Mr. Cuatete, are you interested in the People’s offer at this time?” When appellant asked the court to repeat, the court stated, “Well, you heard what your attorney had to say in terms of your immigration consequences... and you heard what the People’s offer is. And I am sure you spoke to your attorney in terms of what your maximum exposure is in this case as well as your chances of prevailing at trial. With all that said, are you interested in the People’s offer to resolve the case at this time?” Appellant answered that he was. The court again asked, “Is that what you want to do?” Appellant replied that it was.
During the taking of the plea, the prosecutor stated, “If you are not a citizen of the United States, this conviction will result in your deportation, exclusion from admission and denial of naturalization pursuant to the laws of the United States. If you are a citizen, this does not apply.” (Italics added.) Before taking the plea, the trial court verified that the prosecutor had discussed the immigration consequences. Appellant then entered his guilty pleas.
The record thus shows that the court and counsel took great pains to ensure that appellant was adequately informed of the immigration consequences of his plea. Defense counsel informed appellant that his prior arson conviction and his burglary conviction would render him subject to deportation. The admonishment, which was properly given to appellant by the prosecutor at the behest of the trial court, actually told appellant with certainty that he would suffer adverse immigration consequences, not that he “may” suffer such consequences, which is all that the statute requires. There was no violation of section 1016.5.
Section 1016.5, subdivision (a) provides: “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
Furthermore, we find that appellant suffered no prejudice. With respect to prejudice, a defendant is obliged to show that it is reasonably probable he would not have pleaded guilty or nolo contendere if he had been properly advised. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 209-210 (Zamudio).) Appellant was charged with 10 counts of various crimes, seven of which were dismissed as a result of the plea. As appellant was informed, his maximum exposure if convicted of all counts would be 26 years two months. By admitting his prior conviction only for purposes of section 667.5, subdivision (a)(1), and not for purposes of a strike, appellant was entitled to 50 percent credits while in prison, depending on his conduct, rather than 80 percent. He also avoided pleading to more than one new strike offense. Therefore, even if he had not been more than adequately advised, it is highly unlikely appellant would have gone to trial, and he clearly accepted the risk of deportation in order to obtain the benefits the plea offered. Therefore, appellant’s claims of ineffective assistance of counsel and judicial error fail.
Appellant was charged with two counts of first degree residential burglary (§ 459), four counts of second degree burglary of a vehicle (§ 459), attempted grand theft auto (§§ 664, 487, subd. (d)), receiving stolen property (§ 496, subd. (a)), possession of a smoking device (Health & Saf. Code, § 11364), and possession of a controlled substance (Health & Saf. Code, § 11364). Six counts carried the allegation that appellant was on bail or own recognizance within the meaning of section 12022.1. Appellant’s 1996 conviction for arson in violation of section 451, subdivision (d) was alleged as a strike in nine counts and as a prior serious felony in one count.
Appellant filed a motion on April 20, 2010, which we have treated as an additional supplemental brief. Appellant cites the recent United States Supreme Court case of Padilla v. Kentucky (2010) ____ U.S. ____ [2010 U.S. LEXIS 2928] (Padilla) and argues that case is the same as his own. The defendant in Padilla filed a motion under Kentucky’s rules of criminal procedure for post-conviction relief (not a petition for writ of error coram nobis) within the permissible three-year time frame after judgment, which was rendered pursuant to a plea agreement. (See Commonwealth v. Padilla (2008) 253 S.W.3d 482, 483 and rules cited therein.) He alleged ineffective assistance of counsel. The Kentucky Supreme Court denied relief, holding that the Sixth Amendment’s guarantee of effective assistance does not protect a criminal defendant from incorrect advice about deportation because deportation is merely a collateral consequence of conviction. (Padilla, supra, ____ U.S. ____ [2010 U.S. LEXIS 2928, at p. 7].) The Padilla court agreed with the defendant that “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” (Padilla, supra, ____ U.S. ____ [2010 U.S. LEXIS 2928, at pp. 7, 33.) The court remanded the matter for a determination of prejudice. (Padilla, supra, ____ U.S. ____ [2010 U.S. LEXIS 2928, at pp. 33-34.)
Appellant also argues that he was not informed of the maximum exposure of parole that he was to complete, nor was he ever told that he would be in high control parole. He also contends he was not informed that he would have to register as a narcotics offender.
One of the documents submitted by appellant states that he was to report to the “INS 3 Parole Unit” on the first working day following his release. The same document informed appellant he had been designated as a high control case. This document is accompanied by a document entitled “Notice and Conditions of Parole.” This document, although difficult to read because some of its contents have apparently been obliterated, indicates that the reason for the imposition of a special condition of parole was appellant’s immigration status.
As we have seen, the trial court informed appellant of the immigration consequences of his plea. The special conditions imposed upon appellant were merely the implementation of these consequences. It was not required of the trial court to give appellant notice of the manner in which the Department of Homeland Security would detain appellant and implement his deportation. Furthermore, it appears appellant signed the form, indicating that he had received notice prior to being paroled, although the signature has apparently been obliterated.
The record shows that the prosecutor told appellant he would be subject to parole restrictions for a maximum of three years. With respect to the requirement to register, it is true that before accepting a plea of guilty or nolo contendere the court must make certain that the accused has a full understanding of what the plea connotes and its consequences. (Boykin v. Alabama (1969) 395 U.S. 238, 243-244; In re Tahl (1969) 1 Cal.3d 122, 130.) Where the registration requirement of Health and Safety Code section 11590 is applicable, the defendant must be properly advised of it as a direct consequence of conviction. (See Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; People v. McIntyre (1989) 209 Cal.App.3d 548, 556; People v. Cotton (1991) 230 Cal.App.3d 1072, 1083.) However, it is clear that “a defendant (even on direct appeal) is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.” (In Re Moser (1993) 6 Cal.4th 342, 352; see also Zamudio, supra, 23 Cal.4th at p. 210; People v. Cotton, supra, at pp. 1083-1084.)
Based on the advantages appellant obtained by accepting his plea, which we discussed ante, we believe appellant suffered no prejudice by the failure of the trial court to inform him of the narcotics-offender registration requirement during the taking of the plea. Furthermore, the amended information, filed June 21, 2001, gave appellant notice with the charge in count 10 (possession of a controlled substance) that “Conviction of this offense will require you to register pursuant to Health and Safety Code section 11590. Failure to do so is a crime pursuant to Health and Safety Code section 11594.” The minute order of sentencing indicates that, when sentencing appellant in count 10, the sentencing court informed appellant of the requirement to register with the local police agency as a narcotics offender. Appellant did not seek to withdraw his plea at that time. We find appellant suffered no prejudice from the failure at the taking of the plea to inform appellant of his requirement to register.
We have examined the entire record, and we are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.
In the first instance, the procedural posture of appellant’s case, which is a petition for writ of error coram nobis, precludes the issue of ineffective assistance of counsel. Second, as we have noted, appellant received more than adequate advice from his counsel and the trial court regarding the immigration consequences of his plea. Third, as we have discussed, appellant suffered no prejudice. The Padilla case does not aid appellant’s cause.