Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F04148
BLEASE, Acting P. J.
On May 20, 2009, Ismael Samaniego filed a petition for writ of error coram nobis, seeking to vacate a 1990 conviction, alleging that he had pleaded guilty to a charge of possession for sale of heroin based on the misadvice of his attorney. Defendant alleged that his attorney had told him this conviction might result in his deportation, but defendant later learned that it certainly would do so. Defendant did not appeal the conviction and had served his three-year prison sentence. He had already filed a motion to withdraw the plea, but it had not been heard.
On June 18, 2009, the trial court denied the motion to withdraw the plea and the writ petition. In part, the court found that at the change of plea hearing in 1990, “the court informed defendant of the immigration consequences of the plea, pursuant to Penal Code § 1016.5.” On July 27, 2009, defendant filed a notice of appeal.
On appeal, defendant asserts he was entitled to a hearing in the trial court and that his coram nobis petition stated a prima facie claim. We shall dismiss this appeal.
The California Supreme Court has recently held that a claim that an attorney failed to advise a defendant accurately about the immigration consequences of entering a plea did not entitle a defendant to a writ of coram nobis:
“To qualify for issuance of the writ, the alleged facts must be such that ‘“if presented would have prevented the rendition of the judgment.”’...
“
“Defendant’s allegations that he would not have pleaded guilty had he been armed with these additional facts [about the immigration consequences of his plea], or that counsel would have been successful in arranging a plea to a nondeportable offense had these facts been known, fundamentally misapprehends the pertinent inquiry. 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. [Citations.] 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.” (People v. Kim (2009) 45 Cal.4th 1078, 1102-1103 (Kim); see People v. Trantow (1986) 178 Cal.App.3d 842, 845-846.)
The California Supreme Court also held:
“[W]ith regard to defendant’s claims that his counsel was constitutionally ineffective for failing to investigate and for failing to negotiate a different plea, we conclude neither allegation states a case for relief on coram nobis. That a claim of ineffective assistance of counsel, which relates more to a mistake of law than of fact, is an inappropriate ground for relief on coram nobis has long been the rule. [Citations.] Although an attorney has a constitutional duty at least not to affirmatively misadvise his or her client as to the immigration consequences of a plea [citation], any violation in this regard should be raised in a motion for a new trial or in a petition for a writ of habeas corpus.” (Kim, supra, 45 Cal.4th at p. 1104.)
Defendant’s contention that Kim is distinguishable on its particular facts is not persuasive, given the court’s clear statement of the applicable legal principles.
Defendant’s citation to our opinion in People v. Gontiz (1997) 58 Cal.App.4th 1309, is misplaced. In Gontiz we explained that coram nobis relief was not available for claims of misadvice about immigration consequences, but that Penal Code section 1016.5 provided a new mechanism to address such claims, specifically, expanded grounds on which to move to withdraw a plea, when the immigration advisements mandated by that statute are not provided to a defendant by the court. (Id. at pp. 1312-1317.) But defendant does not challenge the trial court’s finding that the advisements required by Penal Code section 1016.5 were given to defendant at his change of plea hearing, therefore the remedy for a violation of that statute is irrelevant to this case, as defendant appears to concede later in his brief. Defendant similarly relies on People v. Goodrum (1991) 228 Cal.App.3d 397, but that case also involved “misstatements made by a responsible public official, ” namely, the trial court. (Id. at pp. 400-401.) Again, that circumstance is not present in this case.
Our further conclusion in Gontiz that prejudice need not be shown was later disapproved. (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 197-200 & fn. 8.)
An earlier case stated: "Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel... or where the claim is that the defendant did not receive effective assistance from counsel[.] Where coram nobis raises only such grounds, an appeal from the superior court’s ruling may be dismissed as frivolous.” (People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983 (Gallardo); see People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [if prima facie showing of merit is not made in a coram nobis petition, the reviewing court “may summarily dismiss the appeal”]; People v. Malone (1950) 96 Cal.App.2d 270, 272.)
The Attorney General suggests we construe defendant’s petition as a petition for habeas corpus, and then dismiss the appeal. But as the trial court noted, immigration consequences do not equate to constructive custody, a necessary element of a habeas corpus petition. (Kim, supra, 45 Cal.4th at p. 1108; People v. Villa (2009) 45 Cal.4th 1063, 1068-1072.) And as the Attorney General points out, a purported appeal from the denial of a petition for writ of habeas corpus would have to be dismissed in any event. (Gallardo, supra, 77 Cal.App.4th at p. 986.)
Accordingly, we shall dismiss this appeal.
We note that the United States Supreme Court recently held criminal trial attorneys must give accurate advice about immigration consequences of guilty pleas, or if the consequences are unclear, at least advise defendants of the possible risks. (Padilla v. Kentucky (2010) ____ U.S. ____ [76 L.Ed.2d 284].) This holding does not change the outcome of this appeal.
DISPOSITION
The appeal is dismissed.
We concur: HULL, J., CANTIL-SAKAUYE, J.