Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Stanislaus County No. 236693, Timothy W. Salter, Judge.
Michael K. Mehr, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, J.
Defendant Eladio Carrera Lopez is facing mandatory deportation based upon his guilty plea entered in 1999. He sought relief in the trial court by way of a petition for writ of error coram nobis (coram nobis), petition for writ of habeas corpus, and a nonstatutory motion to vacate his plea. The trial court denied relief and he appeals to this court. We affirm.
Procedural and Factual Background
In August of 1999 defendant entered a guilty plea to one felony count of willful infliction of injury upon a spouse resulting in a traumatic condition, in violation of Penal Code section 273.5. During the plea proceedings, the trial court asked defendant if he understood that if he was not a citizen of the United States he may be deported, excluded from admission into the United States, or denied naturalization. Defendant stated that he understood. The court also informed defendant that the maximum term he could receive for the two felony offenses would be four years eight months in prison.
It is not clear from the record what the second felony was. The People argued that defendant was on probation at the time of the plea for another felony conviction, but the plea bargain allowed him to proceed without having his probation violated for the other felony conviction.
Imposition of sentence was suspended, and defendant was admitted to probation for a period of three years and ordered to serve 365 days in custody.
In August 2008, defendant filed a notice of motion and motion to withdraw his plea, a petition for writ of coram nobis, and a petition for writ of habeas corpus. The basis of this combined action was that defense counsel rendered ineffective assistance of counsel at the time of defendant’s 1999 plea because counsel failed to adequately investigate and advise defendant of the adverse immigration consequences of his plea prior to entry of the plea. Defendant also argued his counsel was ineffective for failing to investigate and pursue an alternative negotiated disposition that would have avoided adverse immigration consequences.
Defendant filed a declaration stating that, although he is a citizen of Mexico, he has been a long-time resident of the United States and has been a permanent resident in this country since 1972. His wife, children, brothers, and mother are all United States citizens. He declared that his attorney did not tell him that he would be deported for his offense and if he had known that he would be subject to deportation he would not have pled guilty.
A declaration was also filed by defendant’s immigration law attorney, Daniel Chavez. Chavez stated that it is his understanding that the Department of Homeland Security, Immigration and Customs Enforcement “has a hold on [defendant] while he is awaiting the conclusion of his proceedings in Stanislaus County Superior Court.” Because of defendant’s conviction and sentence, he is not eligible for a waiver of deportation known as “cancellation of removal.” According to Chavez, modification of defendant’s ordered period of incarceration to less than 365 days would make him eligible to apply for a waiver.
The People opposed defendant’s motion and petitions. The People alleged that defendant’s plea arrangement was an offer of leniency because at the time of his plea he had two prior felony convictions and was on probation for driving under the influence. A term of the plea was that defendant’s probation in a prior felony case would not be violated or revoked.
It was claimed by the People that defendant failed to meet his burden to justify the withdrawal of his plea. In particular, defendant was advised in compliance with Penal Code section 1016.5 of the immigration consequences that might result from the plea; thus the record of the plea belies defendant’s claim that he was not aware of the immigration consequences flowing from his plea. Assuming for the sake of argument that defendant has shown that his counsel was ineffective, the People asserted that defendant has failed to demonstrate prejudice because he has failed to corroborate his self-serving claim that he would not have pleaded guilty if he had been appropriately advised by his counsel. The People noted that defendant received a significantly reduced sentence in exchange for his plea, was fully advised of his rights, and was advised of the immigration consequences. In addition, the People stated that defendant did not assert his current claim in a timely fashion and only became concerned about his immigration status after he was charged with a drug-related felony.
Lastly, the People argued a petition for writ of coram nobis was not available for defendant’s current claim and he has failed to establish the necessary prejudice for relief pursuant to a petition for writ of habeas corpus.
At the hearing on defendant’s actions, defense counsel argued that counsel’s incompetence should be prejudicial per se and that his client was entitled to more than the admonishment on immigration consequences given by the court.
The court denied the motion to withdraw the plea and denied the petitions for writ of coram nobis and habeas corpus. The court found defendant was properly advised regarding immigration consequences by the court at the time of his plea. The court noted it did not know exactly what defendant’s trial counsel told him at the time of his plea, but he did note that his counsel was a very good and experienced attorney. In conclusion, the court found it would not be just to vacate defendant’s plea.
Discussion
In his opening brief, defendant argues that relief should be granted on any of the grounds he asserted below: (1) coram nobis, (2) habeas corpus, and (3) a nonstatutory motion to vacate the judgment. Defendant does not seek relief under Penal Code section 1016.5 or 1018.
“A statutory motion pursuant to [Penal Code] section 1016.5 to vacate the judgment and withdraw the guilty plea may be brought where the failure consists of the omission of advisements about the immigration consequences of the plea; section 1016.5 ‘contains no time bar.’” (People v. Miranda (2004) 123 Cal.App.4th 1124, 1132.) Under Penal Code section 1018 the court may, for good cause, allow a defendant to withdraw his plea within six months after an order granting probation is made if entry of judgment is suspended.
In the interim period between the filing of the opening brief and the filing of the reply brief the California Supreme Court decided two cases involving situations similar to defendant’s. Although not expressly conceding these cases control defendant’s arguments as to his petitions for coram nobis and habeas corpus, in his reply brief defendant only argues that he was entitled to relief based on a nonstatutory motion to vacate.
The two recent California Supreme Court cases eliminate defendant’s claims based on a petition for writ of coram nobis and petition for writ of habeas corpus. In People v. Kim (2009) 45 Cal.4th 1078, the defendant sought to vacate his state felony conviction to eliminate his conviction as a possible basis for removal from this country by federal authorities. He petitioned for a writ of coram nobis. The Supreme Court found, “[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.” (People v. Kim, supra, 45 Cal.4th at p. 1104.)
The writ of coram nobis is a nonstatutory, common-law remedy. (People v. Kim, supra, 45 Cal.4th at p. 1091.) The grounds on which a defendant may obtain relief via a writ of error coram nobis are narrow. The writ’s purpose is to grant relief where no other remedy exists and a judgment was rendered despite the existence of some fact that would have prevented the judgment’s rendition had the fact been known. (People v. Adamson (1949) 34 Cal.2d 320, 326-327.) The writ of coram nobis is not intended to authorize review of final judgments, but only to authorize a court to recall a prior judgment in specified limited circumstances. (People v. Mooney (1918) 178 Cal. 525, 528.) “It is not a writ whereby convicts may attack or relitigate just any judgment on a criminal charge merely because the unfortunate person may become displeased with his confinement or with any other result of the judgment under attack.” (People v. Hayman (1956) 145 Cal.App.2d 620, 623.)
The trial court did not err when it denied defendant’s petition for a writ of coram nobis.
Under similar circumstances, in a case involving a defendant seeking to challenge an earlier conviction to avoid removal from this country by federal immigration authorities, the California Supreme Court held that a writ of habeas corpus is not available to a defendant who is no longer in custody as a result of the conviction he seeks to challenge. (People v. Villa (2009) 45 Cal.4th 1063.)
Defendant is no longer in custody as a result of the conviction he now seeks to challenge. The trial court did not err when it denied defendant’s petition for writ of habeas corpus.
A petitioner who is not in actual physical custody and has completed probation or parole is no longer in custody. (People v. Villa, supra, 45 Cal.4th at p. 1069.) Likewise, collateral consequences of a criminal conviction do not invoke the doctrine of constructive custody. (Id. at p. 1070.)
Defendant’s final method of seeking to withdraw his plea is based on what he claims is a nonstatutory motion to withdraw based on the trial court’s inherent authority to take action to avoid a constitutional violation, even where no statute or writ specifically authorizes it. Defendant claims the trial court failed to consider its inherent power to vacate an unconstitutional conviction and the case should be remanded for this purpose.
Defendant argues that he was prejudiced because if he had known of the consequences he would not have entered his plea. Without any discussion of the evidence or applicable legal standards, defendant claims there is a reasonable probability that if his attorney had attempted to negotiate a plea agreement with a sentence of one day less, the prosecutor and the court would have accepted that.
First, we reject defendant’s argument that the court failed to consider its inherent power to vacate his conviction and the case should be remanded. Defendant’s motion was titled “Notice of Motion and Motion to Withdraw Plea/Writ of Coram Nobis/Writ of Habeas Corpus.” The trial court denied all of the motions brought by the defendant; thus remand is not appropriate unless the trial court erred in denying the motions.
Without determining whether the trial court has the inherent power to consider a motion to withdraw a guilty plea in a situation such as the one presented here, we find that even if the court has this power defendant failed to make the requisite showing for relief to be granted. (See People v. Kim, supra, 45 Cal.4th at p. 1107.)
We will assume, for the sake of argument only, that defendant’s counsel was ineffective in failing to advise him regarding immigration consequences. Our focus will be on the question of prejudice.
“[A]ffirmative misadvice regarding immigration consequences may, depending on the circumstances of the particular case, constitute ineffective assistance of counsel.” (In re Resendiz (2001) 25 Cal.4th 230, 235.) This is true even when the trial court properly advises the defendant of possible immigration consequences in accordance with Penal Code section 1016.5. (Id. at pp. 240-242.)
“A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.” (Brady v. United States (1970) 397 U.S. 742, 757.) “[T]he United States Supreme court explained that a defendant who pled 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 pled guilty and would have insisted, instead, on proceeding to trial.” (In re Resendiz, supra, 25 Cal.4th at p. 253.) Although defendant declared that he would not have entered his plea if he had been adequately informed by his counsel of the immigration consequences, his “assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’” (Ibid.)
“In determining whether a defendant, with effective assistance, would have accepted [or rejected a plea] offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probably consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.” (In re Alvernaz (1992) 2 Cal.4th 924, 938.)
Defendant has not claimed that his counsel misinformed him regarding the People’s plea offer. Although he claims the prosecutor would have accepted a plea with a sentence one day less than what he received, he has not presented any evidence suggesting that the prosecutor would have agreed to such a plea. Defendant has the burden “to prove by a preponderance of the evidence his entitlement to relief.” (In re Resendiz, supra, 25 Cal.4th at p. 254.) Defendant was given leniency by the plea bargain. He received a reduced sentence and a condition of his plea was that his probation in a previous case would not be violated or revoked.
As stated by the trial court, if defendant had proceeded to trial he would have faced the maximum penalty of four years and eight months in prison. In light of his prior convictions it is likely that if defendant had proceeded to trial and been found guilty he would have been sent to prison, and the maximum term was certainly a possibility. Although defendant might have escaped conviction at a trial, if convicted he would have been subject to the same immigration consequences.
Finally, there is nothing in the record indicating how defendant might have been able to avoid a conviction if he had proceeded to trial. He has not suggested that he had any available defenses nor explained how he might have been exonerated.
Defendant has failed to show that it is reasonably probable he would have “forgone the distinctly favorable outcome he obtained by pleading, and instead insisted on proceeding to trial, had trial counsel not misadvised [or failed to advise] him about the immigration consequences of pleading guilty.” (In re Resendiz, supra, 25 Cal.4th at p. 254.)
Disposition
The order of the trial court is affirmed.
WE CONCUR:
ARDAIZ, P. J., CORNELL, J.