Opinion
NOT TO BE PUBLISHED
APPEAL from an order denying a motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b), and denying a petition for a writ of error coram nobis of the Superior Court of Los Angeles County No. A536925, Thomas Falls, Judge.
Karlin & Karlin and Marc A. Karlin, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Alfonsa Fuentes Jimenez appeals from the order denying her motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b), and denying her petition for a writ of error coram nobis, following a judgment entered after her plea of no contest to possessing heroin for sale (Health & Saf. Code, § 11351). We affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
The record reflects that the first amended felony complaint filed in this case alleged that in April 1986, appellant possessed heroin for sale. On June 11, 1986, appellant, represented by counsel, appeared in court on the matter, and appellant was assisted by a Spanish language interpreter. During the later taking of the plea in this case, the following colloquy occurred: “[The Prosecutor]: If you are not a citizen of this country, you are advised that conviction for this offense may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization. [¶] Do you understand that? [¶] The Defendant: Yes.”
The facts concerning the offense are not pertinent to this appeal.
Appellant pled no contest to possession of heroin for sale. Appellant’s counsel joined in the plea. The court found appellant had been properly advised of the consequences of her plea and the court accepted her plea. The court found appellant guilty of the offense and sentenced appellant to prison for two years.
Twenty-two years later, in December 2008, appellant filed a motion to vacate the judgment under former Penal Code section 1016.5. Appellant alleged in her supporting declaration that she was a citizen of Mexico applying for immigration relief in the United States. She alleged on information and belief that, due to the no contest plea, she was disqualified from any form of immigration relief. Appellant also alleged as follows. Appellant was not literate in English. She did not “recall” the court, her attorney, or the interpreter explaining to appellant that her no contest plea would mean that she would be ineligible to stay in the United States, she might be deported, or she would be foreclosed from filing any future immigration applications. She pled no contest without understanding what would happen to her. If appellant had known that her plea would prohibit her from any immigration relief in the future, she would not have pled no contest and instead would have gone to trial. She has been in the United States for many years.
In appellant’s memorandum of points and authorities, she argued that, because she was unaware of the consequences of her plea, it was neither knowing nor voluntary. As an alternative form of relief in the same pleading, appellant petitioned for a writ of error coram nobis.
On January 7, 2009, the court heard appellant’s motion. The court read to the parties the previously quoted June 11, 1986 colloquy concerning immigration consequences. The court stated it could understand why, after 20 years, appellant no longer remembered the colloquy, “but it’s here in black and white.” The court denied “the motion.”
On January 26, 2009, appellant filed a notice of appeal from the denial of her “motion to vacate conviction” and filed a request for a certificate of probable cause. In the request for a certificate, appellant asserted her statutory and constitutional rights were violated because she was not provided with an adequate explanation of the immigration consequences of her no contest plea. On January 28, 2009, the trial court denied appellant’s request for a certificate of probable cause.
CONTENTION
Appellant claims she was not adequately advised of the immigration consequences of her no contest plea.
DISCUSSION
The Trial Court Properly Denied Appellant’s Motion to Vacate the Judgment and Her Petition for a Writ of Error Coram Nobis.
Appellant, seeking appellate review of the denial of her motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b), and the denial of her petition for a writ of error coram nobis, claims she was not adequately advised of the immigration consequences of her no contest plea; therefore, the trial court erred by not granting her relief and she should be permitted to withdraw her plea.
Former Penal Code section 1016.5, states, in relevant part: “(a) Prior to acceptance of a plea of... nolo contendere to any offense punishable as a crime 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. [¶] (b)... If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded... nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of... nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement. [¶]... [¶] (d) The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of... nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a... plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea.”
1. Dismissal of Appellant’s Appeal is Inappropriate.
At the outset, we reject respondent’s claim that this appeal must be dismissed. Respondent argues dismissal is required because appellant has not perfected her appeal from a judgment based on a guilty plea by obtaining a certificate of probable cause as required by Penal Code section 1237.5.
Penal Code section 1237.5, states, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of... nolo contendere, ... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
Appellant presented alternative forms of relief to the trial court. She presented a motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b). She also presented a petition for a writ of error coram nobis. The trial court denied both (the petition, implicitly). As this division observed in People v. Carty (2003) 110 Cal.App.4th 1518 (Carty), a motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b), is a statutory motion, while a petition for a writ of error coram nobis, which seeks a common law remedy, is a nonstatutory motion to vacate the judgment. (Carty, supra, at pp. 1523, 1526.)
An order denying a statutory motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b), is an order appealable by a defendant under Penal Code section 1237, subdivision (b), as an “ ‘order made after judgment, affecting the substantial rights of the party[.]’ ” (People v. Totari (2002) 28 Cal.4th 876, 879, 887; Carty, supra, 110 Cal.App.4th at pp. 1526-1527.)
Similarly, an order denying a nonstatutory motion to vacate the judgment is an order appealable by a defendant under Penal Code section 1237, subdivision (b). (People v. Kraus (1975) 47 Cal.App.3d 568, 573-574 (Kraus).) Appellant is not appealing from a “judgment of conviction” (Pen. Code, § 1237.5, subd. (a)), but from a postjudgment order. (Kraus, supra, at pp. 573-577.) This appeal need not be dismissed.
2. The Trial Court Properly Denied Appellant’s Statutory Motion to Vacate the Judgment and Her Petition for a Writ of Error Coram Nobis.
In support of her claim that she was not adequately advised of the immigration consequences of her no contest plea, appellant argues that, prior to 1996, her deportation was not mandatory because the Attorney General of the United States could waive the commission of a violation of Health and Safety Code section 11351, as a basis for deportation but, as a result of a 1996 change in federal law, such a waiver is no longer available and her deportation is mandatory. She argues she was not advised of this consequence in 1986 when she entered her no contest plea and, as a result, her plea was not knowing and voluntary. Appellant finally asserts she was not aware of the immigration consequences of her 1986 plea.
a. Denial of Appellant’s Statutory Motion Was Proper.
In order to prevail on a motion to vacate the judgment brought pursuant to former Penal Code section 1016.5, subdivision (b), the defendant must show (1) the trial court failed, at the time of the plea, to advise the defendant as provided by the statute, (2) there exists, at the time of the motion, more than a remote possibility that the defendant’s conviction will have one or more of the specified adverse immigration consequences, and (3) properly advised the defendant would not have pleaded no contest in the first place. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio); Carty, supra, 110 Cal.App.4th at p. 1525, fn. 8.) We review the denial of such a motion under an abuse of discretion standard. (Zamudio, supra, at p. 192.)
In the present case, appellant was represented by counsel during the taking of appellant’s June 11, 1986 no contest plea, and she was assisted by a Spanish language interpreter. The prosecutor explicitly advised appellant, essentially in the language of former Penal Code section 1016.5, subdivision (a), “[i]f you are not a citizen of this country, you are advised that conviction for this offense may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.” The prosecutor asked if appellant understood, and she replied yes.
Appellant did not deny in the trial court that the prosecutor advised her of the above three statutorily-specified possible immigration consequences, but claimed, inter alia, that she did not recall the trial court, her attorney, or the interpreter advising appellant that she might be deported. However, based on the facts in this case, once appellant was advised of those three consequences with the assistance of an interpreter, she was adequately advised of the statutorily-specified consequences (Carty, supra, 110 Cal.App.4th at pp. 1525-1526) and her no contest plea was knowing and voluntary.
Appellant argues the trial court erred by not advising her that deportation was a mandatory consequence of her conviction. We disagree. When enacting former Penal Code section 1016.5, the Legislature intended that trial courts advise defendants about the “potential adverse immigration consequences.” (Zamudio, supra, 23 Cal.4th at p. 209, italics added.) The prosecutor, using the statutory language, advised appellant about the three possible immigration consequences. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 173.) Nothing more was required. (Id. at p. 174, fn. 4.) The trial court did not abuse its discretion by denying appellant’s statutory motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b).
b. Denial of Appellant’s Petition for a Writ of Error Coram Nobis Was Proper.
The writ of error coram nobis is granted only when three requirements are met, namely, petitioner must show that (1) some fact existed which, without any fault or negligence on the petitioner’s part, was not presented to the court at the trial on the merits and which if presented would have prevented the rendition of the judgment, (2) the newly discovered evidence does not go to the merits of issues tried, and (3) the facts upon which the petitioner relies were not known to the petitioner and could not in the exercise of due diligence have been discovered by the petitioner at any time substantially earlier than the time of the petitioner’s motion for the writ. (Carty, supra, 110 Cal.App.4th at p. 1523, fn. 4.)
At least “[p]rior to the 1977 enactment of [Penal Code] section 1016.5, ... a defendant could file a petition seeking relief from a judgment on the ground that the defendant was unaware of the immigration consequences of a guilty plea[.]” (Carty, supra, 110 Cal.App.4th at p. 1523.)
We note the alleged new fact must have been unknown and must have been in existence at the time of the judgment. (People v. Kim (2009) 45 Cal.4th 1078, 1093 (Kim).) Moreover, it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence. (Carty, supra, 110 Cal.App.4th at p. 1528.) We review the denial of such a petition (a nonstatutory motion to vacate the judgment) under an abuse of discretion standard. (Kim, supra, at p. 1095.)
To the extent appellant claims the trial court erred by denying her nonstatutory motion to vacate the judgment because she was not advised of the three immigration consequences specified in former Penal Code section 1016.5, subdivision (a), we reject the claim. First, the purpose of a nonstatutory motion to vacate the judgment is to secure relief where no other remedy exists. However, when a defendant seeks relief from an alleged failure by the trial court to advise the defendant of the three statutorily-specified possible immigration consequences of a no contest plea, or seeks relief because the defendant was allegedly unaware of those consequences, a remedy does exist--the statutory motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b). Accordingly, denial of appellant’s nonstatutory motion was proper for that reason alone. (Carty, supra, 110 Cal.App.4th at pp. 1521, 1529.)
To the extent appellant claims the trial court erred by denying her nonstatutory motion because she was not advised that mandatory deportation was a consequence of her no contest plea, we reject the claim. First, appellant maintains she is aggrieved by a 1996 change in federal law which made her deportation mandatory. However, this alleged new fact necessarily was not “in existence at the time of the judgment” (Kim, supra, 45 Cal.4th at p. 1093) and no advisement concerning it was possible.
Second, the alleged new fact of mandatory deportation existed, according to appellant, in 1996. However, appellant waited 12 years to present this issue to the trial court in her 2008 motion. Appellant therefore has failed to show that the facts upon which she relies were not known to her and could not in the exercise of due diligence have been discovered by her at any time substantially earlier than the time of her motion for the writ. (Carty, supra, 110 Cal.App.4th at p. 1523, fn. 4.) She has failed to aver the time and circumstances under which the “fact” was discovered, in order that the trial court could determine as a matter of law whether appellant proceeded with due diligence. (Carty, supra, 110 Cal.App.4th at p. 1528.) The trial court did not abuse its discretion by denying appellant’s nonstatutory motion to vacate the judgment.
DISPOSITION
The order denying appellant’s motion to vacate the judgment pursuant to former Penal Code section 1016.5, subdivision (b), and denying her petition for a writ of error coram nobis is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.