Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS043315
Premo, J.
Defendant Mark Campos filed a petition for writ of error coram nobis asserting that a judgment of conviction against him for possession of cocaine for sale following a negotiated plea was based on mistake of fact and therefore void. He argued that (1) he did not know that the plea would subject him to deportation, and (2) his trial counsel was constitutionally ineffective because counsel failed to advise him of the immigration consequences of the conviction. The trial court denied the petition. On appeal, defendant contends that the trial court abused its discretion. We dismiss the appeal for failure to state a prima facie case.
SCOPE OF REVIEW
A petition for a writ of error coram nobis, the equivalent of a nonstatutory motion to vacate the judgment (People v. Dubon (2001) 90 Cal.App.4th 944, 950 (Dubon); People v. Gallardo (2000) 77 Cal.App.4th 971, 982 (Gallardo)), lies to give relief to a petitioner who “through fraud, coercion, or excusable mistake, was deprived of a fair trial on the merits.” (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The denial of a defendant’s request for coram nobis relief is reviewed for an abuse of discretion. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ ” (People v. Osband (1996) 13 Cal.4th 622, 666.)
A denial of a petition for writ of error coram nobis is not appealable unless the petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [“[i]n an appeal from a trial court’s denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal”]; see Dubon, supra, 90 Cal.App.4th at p. 950; Gallardo, supra, 77 Cal.App.4th at p. 982.)
BACKGROUND
Defendant was born in the Philippines and entered the United States in 1982 when he was five years old. He achieved lawful-permanent-resident status. In 2004, while he was on probation for misdemeanor possession of over 28.5 grams of marijuana, Salinas police officers executed a search warrant on his home and recovered gang paraphernalia, baggies of marijuana, psilocybin, and cocaine. Defendant fled Monterey County. In 2006, police arrested him in the company of Norteno gang members.
In March 2006, defendant negotiated a guilty plea to possession of cocaine for sale and an admission that he committed the offense for the benefit of a criminal street gang. He signed and initialed a waiver form stating the following: (1) “I have discussed the charges(s), the facts, the possible defenses, and the consequences of my plea with my attorney”; (2) “I offer my plea of Guilty/No Contest freely and voluntarily and of my own accord and with the full understanding of all matters set forth in the Information and in this Waiver”; (3) “I understand that if I am not a citizen of the United States, a plea of Guilty/No Contest will result in deportation, exclusion from admission to this country, denial of naturalization and/or denial of re-entry to this country”; and (4) “I have personally read and [sic] my entire rights form and signed or initialed each of the appropriate spaces. I understand each and every one of the rights outlined above and I hereby waive and give up each of these in order to enter my Guilty/No Contest plea(s). I am entering a plea of Guilty/No Contest because I am in fact guilty.”
Defendant’s attorney signed the form underneath the following statement: “I am the attorney of record and I have explained each of the above rights to the defendant, and have explained and discussed the facts and possible defenses to the charges(s), and the possible consequences of a plea of guilty or no contest. I concur in defendant’s decision to waive the above rights and to enter a plea of Guilty/No Contest. I have witnessed the reading of this form by the defendant and his/her initialing and signing this form.”
The judge signed the form underneath the following: “The Court, having questioned the defendant concerning the defendant’s constitutional rights, finds that the defendant understands these rights and has voluntarily and intelligently waived these constitutional rights. The Court finds that the defendant’s plea(s) and admissions(s) are freely and voluntarily made, that the defendant understands the nature of the charges and the consequences of the plea(s) and that there is a factual basis for the plea(s).” Thereafter, the judge sentenced defendant to serve two years in prison for the conviction plus two years for the admission.
In November 2007, the Department of Homeland Security charged defendant with mandatory deportation as (1) an aggravated felon, (2) one who had been convicted of two crimes involving moral turpitude, and (3) one who had been convicted of a violation relating to a controlled substance.
The Immigration and Nationality Act (Act) (8 U.S.C.A. § 1229a) provides that “Any alien who is convicted of an aggravated felony at any time after admission is deportable.” (Id., § 1227(a)(2)(A)(iii); id., § 1227(a) [“shall... be removed”].) And the Act defines aggravated felony to include drug trafficking, as defined. (Id., § 1101(a)(43)(B).)
The Act provides that “Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.” (8 U.S.C.A. § 1227(a)(2)(A)(ii); id., § 1227(a) [“shall... be removed”].) The act does not define moral turpitude. The term defies a precise definition but the accepted definition seems to include an honesty component that would encompass conduct that is contrary to justice, honesty, or morality. (Smriko v. Ashcroft (3rd Cir. 2004) 387 F.3d 279, 283.)
The Act provides that “Any alien who at any time after admission has been convicted of a violation... relating to a controlled substance [as defined], other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” (8 U.S.C.A. § 1227(a)(2)(B)(i); id., § 1227(a) [“shall... be removed”].)
Defendant filed the instant petition in May 2008. He styled the petition as a “MOTION TO VACATE CORAM NOBIS” and alternatively sought a nunc pro tunc reduction of his sentence to 364 days. Interwoven between his claims of ignorance of the immigration consequences of his plea and ineffective assistance of counsel due to failure to advise of the immigration consequences of his plea was a claim that the judge had failed to properly admonish him under Penal Code section 1016.5 about the immigration consequences of his plea. He supported this point by noting that the reporter’s transcript of the change-of-plea hearing “reflect[s] no mention of immigration consequences.”
Trial courts do not have unlimited authority to modify a sentence once imposed. The common law rule is that, once a defendant begins serving a sentence, the sentencing court loses jurisdiction to modify the sentence it imposed. (See People v. Karaman (1992) 4 Cal.4th 335, 344, 347, 350; People v. Howard (1997) 16 Cal.4th 1081, 1089.) It is true that, apart from statute, courts have inherent authority to correct clerical errors in a sentence at any time. “It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.” (In re Candelario (1970) 3 Cal.3d 702, 705.) This nunc pro tunc authority, however, is limited to true clerical errors. Here, defendant did not seek to correct a clerical error but sought instead to “ ‘ “declare that something was done which was not done.” ’ ” (People v. Borja (2002) 95 Cal.App.4th 481, 485.) “An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error,... unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion.” (In re Candelario, supra, at p. 705.) “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ ” (Ibid.) An example of judicial error is found in People v. Borja, supra, 95 Cal.App.4th 481. There, the defendant had been initially granted probation conditioned in part on a jail sentence of 365 days. Almost six years later, after the defendant had completed his probation, the defendant sought and obtained a nunc pro tunc modification of the probation condition to a sentence of 364 days. This change was important to avoid the defendant’s deportation for an aggravated felony under federal immigration laws. (Id. at pp. 483-484.) The appellate court found the change invalid, stating that “[t]his case does not involve a clerical order.” (Id. at p. 485.) The defendant was seeking a retroactive change in the sentence “that had been intended, imposed and served.” (Ibid.) The trial court’s denial of defendant’s alternative request was therefore proper.
In support of the petition, defendant submitted his own declaration, which essentially testified that, at the time of his guilty plea, he did not understand “what was going on,” was unaware of the immigration consequences of his plea, and would not have pleaded guilty had he known the consequences.
The People replied that (1) defendant had failed to allege the elements of coram nobis because appeal or habeas corpus, not coram nobis, is the remedy for ineffective assistance of counsel, and (2) the trial court properly advised defendant under Penal Code section 1016.5.
The trial court denied the petition without explanation.
DISCUSSION
A petition for writ of error coram nobis is a type of motion to vacate the judgment, and “[f]or better or worse, the terms... are often used interchangeably and the two procedures are similar in scope and effect.” (Gallardo, supra, 77 Cal.App.4th at p. 982.) A petition for writ of error coram nobis is generally used to bring factual errors or omissions to the court’s attention. “A writ of error coram nobis may be granted when three requirements are met: (1) petitioner has shown that some fact existed which, without fault of his own, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of judgment; (2) petitioner has shown that the newly discovered evidence does not go to the merits of the issues tried; and (3) petitioner has shown that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.” (People v. Wiedersperg (1975) 44 Cal.App.3d 550, 554.)
Defendant’s position is that he has properly presented in his petition the assertion of his lack of knowledge of a critical fact--that being the immigration consequences of his plea--which justifies relief on coram nobis. But this argument has been put to rest in People v. Kim (2009) 45 Cal.4th 1078, 1102, where the court stated that such an alleged fact spoke “merely to the legal effect of [a] guilty plea and thus [is] not [a] ground[] for relief on coram nobis.” And the court also put to rest defendant’s secondary argument that a claim of ineffective assistance of counsel justifies 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.” (Id. at p. 1104.)
Thus, defendant did not allege in his petition the first prong to justify coram nobis relief--the showing of a previously unknown fact. To the extent that defendant’s claim is fundamentally one asserting ineffective assistance of counsel, the claim is not cognizable via coram nobis. Dismissal is therefore the appropriate remedy.
In an effort to distinguish this case from Kim, defendant recasts his petition as a statutory motion to vacate under Penal Code section 1016.5. The recast is unavailing.
Penal Code 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.” (See, e.g., People v. Quesada (1991) 230 Cal.App.3d 525, 536 [plea form is sufficient Penal Code section 1016.5 advisement]; People v. Ramirez (1999) 71 Cal.App.4th 519, 522 [same].)
Defendant concedes that, via the written plea form, the judge who took his plea properly advised him of potential deportation consequences before he entered his plea. He argues, however, that “the record is inadequate to establish that the judge who took [his] plea satisfied himself that [he] in fact understood the consequences [of the plea].” (See People v. Ramirez, supra, 71 Cal.App.4th at p. 522 [“[s]o long as... the trial court satisfies itself that the defendant understood the advisements”].) There is no merit to this point.
To the extent we are construing defendant’s petition as a motion to vacate and reviewing the denial of such on appeal, we are reviewing the trial court’s ruling for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
Defendant stated in his plea form that he had (1) discussed the consequences of the plea with his attorney, (2) offered the plea with full understanding of all matters set forth in the form, and (3) understood that the plea would result in deportation. Defendant’s attorney stated in the plea form that he had explained to defendant the possible consequences of the plea. And the judge who accepted the plea stated in the plea form that he had found “that the defendant understands the nature of the charges and the consequences of the plea(s).”
The trial court evidently accepted the judge’s contemporaneous, unequivocal, and express finding of defendant’s understanding and rejected defendant’s belated, self-serving claim of ignorance. It is not beyond reason to accept one of two conflicting accounts. (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence].) We add that the trial court likely rejected defendant’s account because defendant contradicted the account via his contemporaneous, unequivocal statements in the plea form professing understanding of the plea consequences. Trial counsel’s unequivocal, contemporaneous confirmation of defendant’s understanding likely bolstered this rejection.
“We also reject defendant’s contention that in light of the Legislature’s enactment of section 1016.5, which necessarily reflects that body’s assessment of the need for a remedy when pleading defendants are unaware of the immigration consequences of their pleas, we should expand the scope of that statutory motion to vacate to provide some form of relief for defendant here. We note the trial court properly admonished defendant regarding the possible immigration consequences of his plea, and his further claim that his trial attorney was somehow ineffective is not a wrong encompassed by the statute.” (People v. Kim, supra, 45 Cal.4th at pp. 1107-1108, fn. 20.)
Since “the only arrow in [defendant’s] quiver [is] ineffective [assistance of] counsel and his only remedy [is] habeas corpus” (Gallardo, supra, 77 Cal.App.4th at p. 988, fn. 9), defendant argues that “the trial court would have been well within its authority to simply treat [his petition] as a petition for writ of habeas corpus.” From this, he urges us to consider his appellate briefing as a petition for writ of habeas corpus. We decline to do so.
First, defendant concedes that he never requested the trial court to construe his petition for writ of error coram nobis as a petition for writ of habeas corpus. Thus, defendant “failed to avail himself of other remedies when he had the chance.” (People v. Kim, supra, 45 Cal.4th at p. 1099.)
Second, although “[i]n California the appellate courts as well as the superior courts exercise original habeas corpus jurisdiction,” “appellate courts are not equipped to have prisoners brought before them and to conduct testimonial hearings on disputed issues of fact.” (In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 2, rejected on another ground in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.) The superior court is the proper place to initially develop a record in habeas corpus.
Third, defendant’s briefs and the appellate record do not make a prima facie showing for habeas corpus relief.
A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. To meet that burden, the petitioner must prove, by a preponderance of the evidence, facts that establish a basis for relief. (In re Visciotti (1996) 14 Cal.4th 325, 351.) Persons “who have completely served their sentence and also completed their probation or parole period, may not challenge their underlying conviction in a petition for a writ of habeas corpus because they are in neither actual nor constructive custody for state habeas corpus purposes.” (People v. Kim, supra, 45 Cal.4th at p. 1108.)
Here, the record does not show that defendant was in actual or constructive custody when he filed the petition below or, more importantly, when he filed the supposed original petition for habeas corpus in this court. The best that defendant can glean from the record is that he “was likely in ‘custody’ for the purpose of habeas jurisdiction at the time his motion was filed and heard.”
And fourth, defendant’s briefs and the appellate record do not make out a prima facie showing of ineffective assistance of counsel so as to justify relief via habeas corpus.
Plea bargaining and pleading are critical stages in the criminal process at which an accused is entitled to effective assistance of counsel. (In re Resendiz (2001) 25 Cal.4th 230, 239; In re Alvernaz (1992) 2 Cal.4th 924, 933.) To establish ineffective assistance of counsel, the defendant has “ ‘the burden of proving by a preponderance of the evidence both (1) that counsel’s performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome.’ ” (In re Scott (2003) 29 Cal.4th 783, 811.)
While the California Supreme Court has held that affirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel, it has not determined that a “mere failure to advise also constitute[s] ineffective assistance.” (In re Resendiz, supra, 25 Cal.4th at p. 240.) The court has stated: “We are not persuaded that the Sixth Amendment imposes a blanket obligation on defense counsel, when advising pleading defendants, to investigate immigration consequences or research immigration law. In any event, petitioner in this case does not allege a mere failure to investigate, so the question is not squarely presented.” (Id. at pp. 249-250.)
We need not map out all the complexities of immigration law and opine whether a criminal defense attorney must advise his or her client regarding the certainty of immigration consequences resulting from a plea. Suffice it to say, regardless whether such lack of advice falls below an objective standard of reasonableness, defendant’s briefs and the appellate record do not show prejudice from supposed ineffective assistance of counsel.
“[A] defendant who ple[aded] guilty demonstrates prejudice caused by counsel’s incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel’s incompetence, he would not have ple[aded] guilty and would have insisted, instead, on proceeding to trial.” (In re Resendiz, supra, 25 Cal.4th at p. 253.) A petitioner’s self-serving assertion that he or she would not have accepted a proffered plea bargain but would instead have proceeded to trial must be “corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.” (In re Alvernaz, supra, 2 Cal.4th at p. 938.)
Here, the sole support for the prejudice prong of defendant’s underlying claim of ineffective assistance of counsel is defendant’s self-serving, uncorroborated declaration supporting the petition for writ of error coram nobis stating that “I would never have pled [sic] no contest [sic] to this charge if I had truly been informed or had known what impact it would have on my immigration status, family, and life.” There is a hearsay statement in current defense counsel’s supporting declaration that defendant told him “that if he had been made aware that he would be denied immigration into the United States, he would instead have attempted to negotiate a different plea which would not have had such severe immigration consequences.” But, even if this hearsay is considered, it is still self-serving without corroboration. Moreover, any corroboration of this type of testimony would necessarily require a showing that there existed a reasonable chance of plea bargaining to an offense that would not meet the criteria for deportability. (In re Resendiz, supra, 25 Cal.4th at pp. 253-254 [burden is to present “substantial evidence suggesting [that] the prosecutor might ultimately have agreed to a plea that would have allowed [him] to avoid adverse immigration consequences”].)
Although defendant’s plight evokes sympathy and arguably demonstrates the harshness of federal immigration policy, these matters do not render his circumstances unjust. Reasonable minds may differ regarding the wisdom and fairness of deporting defendant, but the inescapable fact is that he jeopardized his ability to continue to reside in the United States by committing the deportable offenses. His plight is no different from any other immigrant who is convicted of a felony that renders him or her subject to deportation. Unless deportation for commission of qualifying felonies is deemed an injustice for all, defendant’s case is neither unjust nor uniquely deserving of extraordinary intervention by California courts. It would not be a proper application of legal and equitable principles for this court to attempt to thwart the application of the nation’s immigration laws to defendant, who was warned under Penal Code section 1016.5 of immigration consequences and freely accepted the risk that he would be deported.
DISPOSITION
The appeal is dismissed.
WE CONCUR: Rushing, P.J., Elia, J.