Opinion
NOT TO BE PUBLISHED
Appellant Felipe M. Alfaro appeals from the trial court’s denial of his petition for writ of error coram nobis.City & County of San Francisco FELIPE M. ALFARO, Super. Ct. No. 183868
Jones, P.J.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is a Guatemalan citizen. On March 9, 2001, San Francisco police were conducting surveillance on appellant’s apartment because they intended to serve a search warrant there. Appellant left the apartment with his wife and son; as he drove away, the police stopped his car and arrested him for driving without a driver’s license. The police searched his apartment and found $2,895 in a bedroom drawer and two plastic bags of cocaine salt in a recessed light well over the kitchen sink. The police then searched appellant’s car, where they found a hidden compartment concealed where the passenger airbag should have been.
Appellant’s Guilty Plea
On March 15, 2001, the People filed a complaint alleging appellant possessed a controlled substance for sale (Health & Saf. Code, § 11351), constructed a false compartment in a vehicle to transport narcotics (§ 11366.8, subd. (a)), and drove a vehicle without a driver’s license (Veh. Code, § 12500, subd. (a)). On October 19, 2001, appellant pleaded guilty to constructing a false compartment in a vehicle to transport narcotics. (§ 11366.8, subd. (a).) At the hearing on the plea, appellant was advised of the constitutional rights he was waiving by entering the plea; he was also advised of the legal consequences of his plea. In return for his guilty plea, the prosecutor agreed appellant would be placed on probation for three years. As the court recited the terms of the plea agreement, the following colloquy occurred:
Unless otherwise noted, all further references are to the Health and Safety Code.
“THE COURT: If you’re not a citizen, you are hereby advised that conviction of the offense for which you have been charged may result in your deportation, exclusion from admission and naturalization pursuant to the laws of the United States. Do you understand this?
“[APPELLANT]: Yes.
“[DEFENSE COUNSEL]: Your Honor, I would also like to put on the record that I have extensively talked about the possible immigration consequences of [his] conviction since Mr. Alfaro is not a citizen of the United States and he understands what the ramifications are, your Honor.”
On November 19, 2001, the trial court suspended imposition of sentence and placed appellant on probation for three years. In January 2003, the court appointed conflict counsel for appellant, noting that it appeared that the attorney who represented both appellant and his codefendant “may have had a conflict of interest[.]”
Appellant’s Petition for Writ of Error Coram Nobis
On May 18, 2010 — almost 10 years after pleading guilty — appellant filed a petition for writ of error coram nobis seeking to have his conviction stricken. Appellant argued coram nobis relief was appropriate because his trial counsel committed extrinsic fraud on the court as to the “intelligence and voluntariness” of his jury trial waiver “as well as his awareness of defenses and bases for suppression.” Appellant also claimed his trial attorney had a conflict of interest and misadvised him about the immigration consequences of his plea.
In a declaration offered in support of the petition, appellant explained that he consulted with an immigration attorney in 2006 “to discuss my immigration history and the possibility of adjusting status. In 2007 my immigration attorney... filed briefings with Immigration Court on my behalf. We hoped to fight my removal from the United States in Immigration Court. In 2008 an Immigration Judge informed me that I would be eligible for relief, were it not for my felony conviction under [section] 113[66].8(a). At that time I contacted current counsel to discuss the possibility of obtaining post-conviction relief.” Counsel for appellant averred in a declaration that he “receiv[ed] a deposit toward services” in early 2009 and obtained appellant’s file from trial counsel in February and July 2009.
On July 22, 2010, the trial court denied the petition for two reasons. First, the court determined appellant’s complaints about trial counsel’s representation — specifically appellant’s allegations that his attorney had a conflict of interest and misrepresented the immigration consequences of pleading guilty — constituted an ineffective assistance of counsel claim that was “not cognizable on coram nobis.” Second, the court concluded appellant could not demonstrate diligence in bringing the petition. The court explained, “[h]ere, the alleged error occurred nine years ago. Petitioner argues that he only began to learn of his attorney’s misrepresentation of immigration consequences in 2006, as a result of his attempt to obtain a green card. Petitioner does not explain the four years it took to file this petition. Second, petitioner waited three years, without explanation, to obtain counsel to assist in the instant petition. Third, counsel for petitioner provides that he had requested the file repeatedly from petitioner’s trial counsel since January 2009 and was provided with a partial file in February 2009. There is no explanation of the past delay.”
The caption on the order is erroneously titled “For A Writ [of] Habeas Corpus, ” but the order clearly states that appellant “brings a petition for writ of error coram nobis” and analyzes appellant’s failure to meet the elements of coram nobis.
On September 13, 2010, appellant filed a motion for reconsideration of the denial of his coram nobis petition. On September 20, 2010, and apparently before the trial court ruled on his motion for reconsideration, appellant appealed from the denial of his coramnobis petition.
DISCUSSION
“The writ of error coram nobis is an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion. [Citations.]” (People v. Chaklader (1994) 24 Cal.App.4th 407, 409.) A writ of coram nobis “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. The writ lies to correct only errors of fact as distinguished from errors of law.” (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352, internal citations & quotation marks omitted.) The California Supreme Court has noted that the writ of error coram nobis has been confined to a “traditionally narrow” class of cases. (People v. Kim (2009) 45 Cal.4th 1078, 1092, 1104.) We review the trial court’s denial of appellant’s coram nobis petition for abuse of discretion. (Id. at pp. 1095-1096.)
The court did not abuse its discretion by denying appellant’s petition for writ of error coram nobis on the grounds that relief was not available because appellant’s complaints about his trial counsel’s representation constituted a claim for ineffective assistance of counsel. Appellant’s contention that his trial counsel had a conflict of interest falls within the category of ineffective assistance of counsel claims under the Sixth Amendment. (Mickens v. Taylor (2002) 535 U.S. 162, 166.) Appellant’s contentions that his trial attorney should have filed various pretrial motions and that his conflict counsel should have filed a petition for habeas corpus similarly raise a claim for ineffective assistance of counsel. So too is appellant’s claim that his trial counsel committed “fraud on the trial court” by failing to advise him of the consequences of pleading guilty and by failing to investigate possible defenses to the charges. Appellant is simply recasting his ineffective assistance of counsel claims as “fraud on the trial court.” It is well settled that ineffective assistance of counsel is not a basis for relief under a writ of error coram nobis. (Kim, supra, 45 Cal.4th at p. 1104; People v. Miranda (2004) 123 Cal.App.4th 1124, 1132, fn. 6; People v. Gallardo (2000) 77 Cal.App.4th 971, 983.)
That appellant’s trial counsel was disbarred in June 2009 for reasons entirely unrelated to his representation of appellant has no bearing on this case.
The court also properly denied appellant’s coram nobis petition on the ground that appellant could not demonstrate diligence in seeking coram nobis relief. Even if we assume appellant could establish he operated under a mistake of fact that, if known, would have altered the rendition of judgment, appellant has failed to demonstrate he acted with due diligence when he petitioned for writ of error coram nobis. “It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis.” (People v. Shorts (1948) 32 Cal.2d 502, 512.) “The diligence requirement [in coram nobis] is not some abstract technical obstacle placed randomly before litigants seeking relief, but instead reflects the balance between the state’s interest in the finality of decided cases and its interest in providing a reasonable avenue of relief for those whose rights have allegedly been violated.” (Kim, supra, 45 Cal.4th at p. 1097.) To satisfy the diligence requirement, appellant was required to establish that the fact was not known to him and that it could not have been discovered earlier if he had acted with due diligence. (People v. Shipman (1965) 62 Cal.2d 226, 230; People v. Soriano (1987) 194 Cal.App.3d 1470, 1474 [petitioner required to show “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”].)
Kim, supra, 45 Cal.4th at page 1098, is instructive. There, the defendant, a South Korean citizen and a lawful permanent resident of the United States, pleaded guilty in 1997 to petty theft with a prior conviction. (Kim, supra, 45 Cal.4th at pp. 1085-1086, 1098.) In 1998, the Immigration and Naturalization Service (INS) moved to deport him and detained him in 1999, following his parole from state prison, based on his status as an “‘aggravated felon.’” (Id. at pp. 1086, 1098-1099.) “Although [the defendant] was involved in the state and federal judicial systems and was represented by counsel throughout this time, he did not file his petition for a writ of error coram nobis or move to vacate his plea until July 2005, almost seven years after the INS first attempted to deport him.” (Id. at p. 1098.)
The California Supreme Court held that the defendant failed to show necessary diligence in bringing his petition for writ of error coram nobis where he initialed a statement that he understood his guilty plea could result in deportation, where he did not file his petition for coram nobis until almost seven years after the INS first moved to deport him, and where he presented no evidence as to when he or his counsel learned of facts forming basis of petition. The Kim court determined the defendant’s petition for writ of error coram nobis was not diligently filed. (Kim, supra, 45 Cal.4th at p. 1101.)
The same is true here. Here, appellant waited: (1) over nine years after his guilty plea; (2) over seven years after the appointment of conflict counsel; (3) over four years after retaining an immigration attorney; and (4) almost two years after the INS denied his request for a green card to file his petition for a writ of error coram nobis. We fail to see how, given this lengthy delay, the court’s conclusion that appellant had not satisfied the diligence requirement was an abuse of discretion. (Kim, supra, 45 Cal.4th at pp. 1092-1093; People v. Trantow (1986) 178 Cal.App.3d 842, 847 [petition for writ of error coram nobis filed eight years after filing a habeas corpus petition and 14 years after conviction constituted inexcusable delay]; People v. Tannatt (1960) 181 Cal.App.2d 262, 267 [denying coram nobis petition for lack of diligence in seeking relief].)
Appellant’s arguments to the contrary are unpersuasive. First, appellant attempts to justify the lengthy delay by claiming he did not realize the potential immigration consequences of his guilty plea until 2006, when the immigration proceedings commenced. Not so. Appellant knew he was not a citizen at the time of his guilty plea in 2001. When he entered his plea, he was advised that his conviction could result in “deportation, exclusion from admission and naturalization pursuant to the laws of the United States.” Appellant cannot rely on the initiation of immigration proceedings in 2006, nor on the completion of the proceedings in 2008, to justify the delay in bringing his petition for writ of error coram nobis. Appellant also contends his delay in filing the petition should be excused because it took time — apparently over a year — to analyze the California Supreme Court’s March 2009 decision in Kim, supra, 45 Cal.4th 1078. We disagree. The court’s decision in Kim was not overly complicated and did not depart from the long-articulated rule that a defendant seeking coram nobis relief must establish diligence in bringing the petition. (Id. at pp. 1097-1098.)
At oral argument, defense counsel argued appellant was diligent in bringing the coram nobis petition because he filed it within six months of learning about the existence of exculpatory material, specifically, that his roommate had a criminal record. Counsel claimed this information was a “critical piece of evidence” in support of the coram nobis petition. In response, the People argued that appellant knew his roommate was “selling drugs” well before he filed the petition. We agree. In a declaration offered in support of the coram nobis petition, appellant stated that at the time of his arrest, he was renting an apartment from Jose Luis Manzano. Appellant averred that he heard “[t]hrough family and friends... that Mr. Manzano was involved in illegal drug sales” and that in 2001, he learned that Manzano was “‘on probation’” and might become a codefendant in appellant’s case because “of our cohabitation of the apartment and his illicit activity.” This establishes — contrary to defense counsel’s claim — that appellant was aware that his roommate might have been responsible for the drugs found in the apartment no later than 2001.
We are not convinced that appellant’s claim that he would not have pleaded guilty if he had known that his roommate might have been responsible for the drugs found in the apartment, or if he had known that several years prior, the police had executed a search warrant at the apartment are “newly discovered facts [that] establish a basic flaw that would have prevented rendition of judgment.... 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, 45 Cal.4th at p. 1103.)
Having reached this result, we need not address the People’s claim that the court properly denied the coram nobis petition because it alleged “legal mistakes, ” which are not a proper basis for seeking coram nobis relief.
DISPOSITION
The order denying appellant’s petition for writ of error coram nobis is affirmed.
We concur: Simons, J., Needham, J.