Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF045296, Darryl B. Ferguson, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
In August 1999, appellant Veronica Aguilar Figueroa pled no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), a felony, and misdemeanor battery (§ 242). In September 1999, the court placed appellant on three years’ probation.
Except as otherwise indicated, all statutory references are to the Penal Code.
In November 2002, the probation officer filed a report stating that appellant had satisfactorily completed the terms of her probation. In January 2003, the court, pursuant to section 1203.4, ordered appellant’s pleas withdrawn and dismissed the offenses.
In February 2007, appellant filed a “NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT .…” She sought relief on the grounds that she was denied her right to effective assistance of counsel prior to her plea. In March 2007, following a hearing, the court denied the motion. The instant appeal followed.
On appeal, appellant contends the court abused its discretion in denying appellant’s motion to vacate the judgment (motion to vacate). We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual summary is taken from the report of the probation officer, which bases its account of the instant offense on records of the City of Visalia Police Department.
On June 13, 1999, appellant was in a Wal-Mart store when a store employee observed appellant place a small purse and 11 items of jewelry in her own purse and “attempt[] to leave … the store without paying for the items.” The employee “made contact” with appellant, who “began to run ….” Eventually several store employees were able to “restrain” appellant, handcuff her and take her to an office inside the store.
Appellant told investigating police officers that “she entered [the store] with the intent to steal a purse.”
Procedural Background
Appellant entered her plea in the instant case on August 6, 1999. Prior to appellant entering her plea, the court advised appellant, pursuant to section 1016.5, as follows: “If you’re not a citizen of the United States your plea of guilty or no contest could result in your being deported from the United States, denied readmission, naturalization and permanent residency.”
Section 1016.5 provides, in relevant part: “(a) 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.”
Appellant filed her motion to vacate on February 20, 2007. In a declaration filed in support of that motion, appellant’s counsel, Rudy Banuelos, averred as follows: appellant’s 1999 burglary conviction “makes [her] deportable under the federal immigration laws”; appellant “will be deported”; “[t]hese consequences are not theoretical; they are real”; appellant “is presently undergoing removal (deportation) proceedings”; and a “master calendar hearing” in those proceedings was scheduled for March 1, 2007. Attached to this declaration, as an exhibit, was a copy of an Immigration and Naturalization Service “Notice to Appear,” dated November 22, 2006, stating that appellant was “deportable” for the following reasons: she was not a citizen or national of the United States; she was a native and a citizen of Mexico; she was admitted to the United States as a lawful permanent resident on July 24, 1996; and she was convicted of burglary on or about June 13, 1999. The notice further states that appellant is “subject to removal from the United States” under federal law because she had been convicted of a crime involving “moral turpitude” for which a sentence of more than one year could be imposed, and she had suffered this conviction “within five years after admission [to the United States].”
In her own declaration filed in support of the motion to vacate, appellant averred as follows: at the time of her plea she was “not informed of the immigration consequences of [her] plea”; she “was never advised that [she] would in fact be deported if [she] admitted the [1999 burglary] charge”; she “recall[ed] the judge stating something about immigration, but [her] attorney never did”; at the time of her conviction she had been a “legal resident” for three years; her entire family, i.e., her parents, brothers and sisters, were either United States citizens or “Legal Permanent Residents”; she had no family in Mexico; she had grown up in the United States and “[knew] no other place as home”; at the time of her plea she “did not know that [she] could have plea-bargained for some other disposition”; she “would have gladly paid a higher fine, or done more time in custody”; and “[i]f [she] had been aware of the consequences [she] would not have [pled] to a crime involving moral turpitude rendering [her] deportable.”
As indicated above, in her memorandum of points and authorities in support of her motion to vacate, appellant argued that under federal law, her burglary conviction made her “absolutely deportable”; her attorney did not inform her of this “drastic immigration consequence[]” prior to her plea; she would not have pled no contest had she known of this consequence; and therefore she was denied her right to the effective assistance of counsel, regardless of “whether or not the court faithfully delivers Section 1016.5’s mandated advisements.”
At the hearing on the motion to vacate the court stated: “[T]he defendant entered her plea. She was advised that if she was not a citizen of the United States, her plea of guilty or no contest could result in her being deported from the United States, denied readmission, naturalization, and permanent residency. And she understood she was advised of that. [¶] I asked her if she had any questions. She didn’t have any questions. [¶] The motion is denied.”
At that point, attorney Banuelos indicated he wished to “make a comment,” and the following colloquy took place:
“THE COURT: … I fully advised your client or her constitutional rights and consequences of her plea. I met all the statutory and case law requirements that she needed to be advised of. Whether her attorney went over that with her, I went over that with her.
“MR. BANUELOS: That’s correct. Your Honor did give her the 1016.5 admonishment and did tell her that it could. However, when there’s a plea … to a deportable offense, it’s not ‘could,’ it’s ‘will.’ Under the Code, she becomes removable.
“THE COURT: It is not ‘will,’ Counsel. It’s discretionary, which the Department of Immigration and the Courts have held that 1016 advisement is sufficient. [¶] … [¶] Counsel, I don’t sit in with the attorney. What I do is assume they’re not being advised of that. My point is to advise her, and I advised her, and that’s sufficient.”
DISCUSSION
Appellant contends the court abused its discretion in denying her motion to vacate because (1) the court based its ruling entirely on its compliance with section 1016.5 and specifically declined to consider appellant’s claim of ineffective assistance of counsel, and thereby applied an incorrect legal standard; (2) appellant’s no contest plea was neither voluntary nor intelligent because she did not know that as a result of her plea she would in fact be deported; (3) the court affirmatively misadvised appellant of an important consequence of her plea by implying that deportation was only a possible consequence of her plea, and not a certainty; and (4) she was denied her constitutional right to the effective assistance of counsel because her counsel failed to do the following: “correct the court’s misrepresentation” that deportation was a mere possibility and not a certainty, “investigate and research” the immigration consequences of appellant’s plea and negotiate a plea to an offense that would not result in automatic deportation.
Each of points (1), (2), (3) and (4) above is premised on 8 U.S.C. section 1227, subdivision (a)(2)(A)(i), which provides, in relevant part, that “[a]ny alien” who, within five years “after the date of admission,” is convicted of a crime is “deportable” if the crime “involv[es] moral turpitude” and is one “for which a sentence of one year or longer may be imposed.” Appellant is “deportable” under this statute, she asserts, because (1) she was lawfully admitted to the United States in 1996 and thus her 1999 burglary conviction occurred within five years of her “admission,” and (2) burglary is a crime of moral turpitude “because it was committed by entering with intent to commit theft (see, e.g., Cuevas-Gaspar v. Gonzales (9th Cir. 2005) 430 F.3d 1013, 1019-1020) ….” Relying on a number of federal authorities, appellant further argues that deportation for a person made “deportable” under the statute discussed above is “essentially certain” and “automatic” (United States v. Couto (2d Cir. 2002) 311 F.3d 179, 190); the court, in advising appellant that she “could” be deported implied deportation was merely a possibility; “[t]here is a clear difference … between facing possible deportation and facing certain deportation” (INS v. St. Cyr (2001) 533 U.S. 289, 325); and therefore the court’s advisement regarding the immigration consequences of appellant’s plea was misleading. However, as we explain below, we need not address the merits of this claim because appellant has not met one of the fundamental requirements for the issuance of writ of error coram nobis.
We treat appellant’s motion to vacate as a petition for writ of error coram nobis (coram nobis petition). (People v. Dubon (2001) 90 Cal.App.4th 944, 950 [“[a] petition for writ of error coram nobis is equivalent to a motion to vacate the judgment, and the two terms are sometimes used interchangeably”]; accord, People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.)
A coram nobis petition “‘is generally used to bring factual errors or omissions to the court’s attention.’” (People v. Dubon, supra, 90 Cal.App.4th at p. 950.) “‘“The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not []presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]” [Citations.]’ [Citations.]” (Id. at pp. 950-951.)
“The writ [of coram nobis] lies to correct only errors of fact as distinguished from errors of law.” (People v. Sharp (1958) 157 Cal.App.2d 205, 207.) “‘“A mistake of fact” is where a person understands the facts to be other than they are; whereas a “mistake of law” is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts.’” (People v. LaMarr (1942) 20 Cal.2d 705, 710.)
Appellant argues that the “‘“fact”’” (People v. Dubon, supra, 90 Cal.App.4th at p. 950) that, if known to her, would have led her to refuse to plead guilty or no contest to burglary, thereby “‘“prevent[ing] the rendition of judgment”’” (ibid.), was that deportation was the “mandatory” consequence of her plea. However, assuming for the sake of argument that deportation was mandatory and that appellant was not aware of this, coram nobis relief cannot be granted on the basis of such a mistake. The case of People v. Ibanez (1999) 76 Cal.App.4th 537 is analogous. There, defendant Ibanez asserted that the “‘fact unknown to the [trial] court at the time of [the defendant’s] guilty plea was that [the defendant] did not know he faced the potential of civil commitment under the SVPA [the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.)],’” and that “‘if the fact of [his] ignorance of the potential consequence had been made known to the court, the court would not have entered the judgment, at least without advising [him] of the potential consequence.’” (Id. at pp. 545-546, italics omitted.) The appellate court concluded: “Defendant mischaracterizes what constituted the previously unknown fact in this case. The error in this case did not involve facts or evidence but instead concerned a legal issue. [Citation.] Defendant’s ignorance regarding the potential for civil commitment under the SVPA is a legal, not a factual, question.” (Id. at p. 546, fn. omitted.)
Appellant’s claim that she did not know she would be deported as a result of her plea, like Ibanez’s claim that he did not realize his plea could result in SVPA commitment, “involve[s] … a legal issue.” (People v. Ibanez, supra, 76 Cal.App.4th at p. 546.) The mistake appellant claims is one of law, not fact. Therefore, appellant has not met the first of the three requirements for coram nobis relief.
We express no opinion as to whether she met the third requirement, viz., that she did not know and could not have discovered with due diligence the purported fact of her mandatory deportation. We also express no opinion as to whether a claim of ineffective assistance of counsel can be raised in a coram nobis proceeding by a defendant to challenge a conviction on which the sentence has fully expired. (Compare People v. Gallardo (2000) 77 Cal.App.4th 971. 982-983 [“Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel [citation] or where the claim is that the defendant did not receive effective assistance from counsel”] with U.S. v. Mett (9th Cir. 1995) 65 F.3d 1531, 1534 [“[a]n individual no longer in custody may employ the rarely-used writ of coram nobis to make a Sixth Amendment assistance of counsel attack on his conviction”].). We note that the latter issue is currently before the California Supreme Court in People v. Kim (2007) 150 Cal.App.4th 1158, decided July 25, 2007, S015383.
In arguing to the contrary, appellant relies on People v. Wiedersperg (1975) 44 Cal.App.3d 550. In that case, the defendant suffered a conviction of marijuana possession, following a proceeding in which the issue of guilt had been submitted on the transcript of the preliminary hearing. The defendant’s subsequent motion to expunge the conviction was granted, but he was nonetheless deported because of the conviction. He brought a coram nobis petition to vacate his expunged conviction but the trial court ruled it did not have jurisdiction to entertain the petition. The court of appeal held the trial court erred in finding it lacked jurisdiction and, in the portion of the opinion relevant here, further held that the petition alleged facts which, if proven, would permit issuance of the writ in the discretion of the trial court. But as the court in Ibanez explained in distinguishing Wiedersperg, “the [appellate] court emphasized that it was the ignorance of the defendant’s lawyer of the defendant’s status as a resident alien, not a citizen, which constituted an unknown fact that justified coram nobis relief. The opinion does not disclose whether the defendant, who came to the United States when he was age 10 and who was 21 at the time of his offense, was aware of his alien status. But the opinion refers three times to the lawyer’s lack of knowledge on this fundamental point. It was not disputed that the defendant could be deported if he suffered a criminal conviction as an alien. However, the latter constituted a legal, not a factual, issue.” (People v. Ibanez, supra, 76 Cal.App.4th at p. 547, italics added, fn. omitted.)
Like the court in Ibanez, we distinguish Wiedersperg on the grounds that the error was as to the defendant’s alien status--an error of fact--whereas in the instant case, the claimed error was as to immigration consequences of her conviction--an error of law.
The foregoing establishes that appellant’s coram nobis petition was without merit, and therefore correctly denied, regardless of whether (1) the court misadvised appellant as to the immigration consequences of her plea; (2) counsel’s failure to correct this misadvisement or her purported failures to adequately investigate and research the immigration consequences of appellant’s plea and pursue the possibility of a plea to some other offense constituted ineffective assistance of counsel; (3) appellant misunderstood the immigration consequences of her plea; and/or (4) the court erroneously failed to consider appellant’s claim of ineffective assistance of counsel. Therefore, we need not address appellant’s other contentions set forth above.
Appellant, in an attempt to avoid the consequences of the unavailability of coram nobis relief, argues that although the court complied with section 1016.5, we should view appellant’s motion to vacate as a motion under that statute, brought on nonstatutory but constitutional grounds, viz., ineffective assistance of counsel. This court should do so, she argues, because section 1016.5 protects a defendant’s right to be advised of the immigration consequences of his or her plea; appellant’s claim of ineffective assistance of counsel is related to that right; and the trial court has the inherent authority, and the duty, to provide relief for constitutional violations related to the rights protected by statute. Appellant bases this contention on three cases: People v. Fosselman (1983) 33 Cal.3d 572, Murgia v. Municipal Court (1975) 15 Cal.3d 286, and People v. Oliver (1975) 46 Cal.App.3d 747.
In Fosselman, the court held that criminal defendants may raise claims of ineffective assistance of counsel in a motion for new trial even though the statute authorizing such a motion, section 1181, “expressly limits the grant of a new trial to only the listed grounds, and ineffective assistance is not among them.” (People v. Fosselman, supra, 33 Cal.3d at p. 582.) The court stated, “the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process,” and noted further, “[i]t is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial.” (Ibid.)
Oliver also arose in the context of a motion for new trial. There, in rejecting the People’s contention that the trial court erred in ordering a new trial because, inter alia, the court based its order on nonstatutory grounds, the court stated: “Although it has been stated that motions for new trial must be made on one or more of the grounds enumerated in Penal Code section 1181 [citation], new trials are frequently granted on nonstatutory grounds ‘where the failure to do so would result in a denial of a fair trial to a defendant in a criminal case.’ [Citation.] … [T]he inherent power of the court to correct matters by granting a new trial transcends statutory limitations [citation].” (People v. Oliver, supra, 46 Cal.App.3d at p. 751.)
In Murgia, the defendants, charged with various crimes, moved to dismiss the charges on the ground that prosecutions violated their constitutional right to the equal protection of the laws. In approving of the use of a pretrial motion to raise this issue, the court stated “because a claim of discriminatory prosecution generally rests upon evidence completely extraneous to the specific facts of the charged offense, we believe the issue should not be resolved upon evidence submitted at trial, but instead should be raised, as defendants have done here, through a pretrial motion to dismiss. Although no clear California statutory authority provides for such a pretrial motion to dismiss, we have no doubt in light of the constitutional nature of the issue as to the trial court’s authority to entertain such a claim.” (Murgia v. Superior Court, supra, 15 Cal.3d at fn. 4, pp. 293-294.)
Thus, Murgia dealt with a pretrial motion and Oliver and Fosselman dealt with timely post-trial motions. These cases do not provide authority for the proposition that a constitutionally-based claim may be raised more than six years after judgment, in violation of the principles governing coram nobis petitions.
The issue of whether a trial court has the power to grant a defendant’s non-statutory motion to vacate a judgment for ineffective assistance of counsel based on counsel’s failure to advise the defendant the immigration consequences of the defendant’s plea is currently before the California Supreme Court in People v. Kim, supra, 150 Cal.App.4th 1158, decided July 25, 2007, S015383.
DISPOSITION
The judgment is affirmed.