Opinion
H029870
4-27-2007
THE PEOPLE, Plaintiff and Respondent, v. JOSE INEZ MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED
Jose Inez Medina appeals from the trial courts denial of his petition for writ of error coram nobis. Defendant argues that the trial court abused its discretion by denying his petition without a hearing because (1) no interpreter was provided at the time he entered his 1993 pleas of no contest to seven drug offenses; (2) the court incorrectly required defendant to show prejudice from the denial of an interpreter, instead of using the harmless error standard set out in Chapman v. California (1967) 386 U.S. 18, 24; (3) the verified petition, and the minute order attached to it, show that the trial court did not advise him of the immigration consequences of his plea, as required by Penal Code section 1016.5; and (4) his attorney rendered ineffective assistance of counsel in that he failed to explain the immigration consequences of the plea to him.
The Attorney General responds that the denial of defendants petition for writ of error coram nobis is not appealable because he did not obtain a certificate of probable cause; even if the defendant may appeal the trial courts determination that defendant failed to make out a prima facie showing of merit, the appeal must be dismissed because he failed to do so; defendants claim of trial court error regarding nonadvisement of immigration consequences was not pleaded; and defendants complaint that his counsel rendered ineffective assistance of counsel by failing to advise him of the immigration consequences of his pleas is not reviewable on coram nobis. We dismiss the appeal.
HISTORICAL AND PROCEDURAL FACTS
On October 26, 2005, defendant, through counsel, filed a petition for writ of error coram nobis in Santa Clara County Superior Court. The petition consists of a notice section, which includes factual allegations, signed by counsel; a memorandum of points and authorities, also signed by counsel; and a verification of the petition, signed by defendant. Exhibit 1 is the minute order for April 28, 1993.
The petition (in the notice section) alleges, and the minute order shows, that on April 28, 1993, defendant pleaded no contest to five counts of controlled substance sales, and two counts of possession of a controlled substance for sale. He also admitted, as to one of the possession counts, that he possessed more than 28.5 grams. He was sentenced to prison for three years. He did not have an interpreter and the court did not advise him of the immigration consequences of his plea.
The petition also alleges that defendant was represented in municipal court by Norville Clark, who waived preliminary hearing without any contact or discussion of the case with defendant, and that Mr. Clark was eventually disciplined by the State Bar. Defendant then retained James McNair Thompson as his attorney. Thompson "had [defendant] enter a plea to the face of the complaint." On October 1, 2005, defendant discovered that "he should have been provided an interpreter and should have been notified of his immigration consequences and was not." No appeal was taken from the judgment.
In the "statement of the case" section of the memorandum of points and authorities, it is argued that Mr. Thompson had defendant plead to the complaint "without the benefit of an interpreter and was not advised of immigration consequences of his plea to have the court administer an advisement that conviction of the offense for which he had been charged may have [immigration] consequences."
On December 8, 2005, by written order stating its reasons, the superior court denied the coram nobis petition without a hearing. As to defendants claim of the lack of an interpreter, the court ruled that defendant had failed to show prejudice; that is, "[h]e has not shown that it is reasonably probable that a different result would have been reached even if he had received the assistance of an interpreter." As to defendants claim of ineffective assistance of counsel, the court ruled that a writ of error coram nobis does not lie to review a claim of ineffective assistance of counsel; habeas corpus is the appropriate vehicle for presentation of such a claim. However, the court no longer had habeas corpus jurisdiction.
DISCUSSION
1. Appealability
Preliminarily, the Attorney General argues that because a writ of error coram nobis challenges the validity of a guilty plea, section 1237.5 requires that defendant obtain a certificate of probable cause to appeal its denial. This is not the law. It is well established that the denial of a petition for writ of error coram nobis is appealable as an "order made after judgment, affecting the substantial rights" of the party under certain circumstances, "such as when the record on appeal would not have shown the error [citations], when the final judgment that is attacked is void [citations] or when clarification of the law is deemed important in the courts discretion [citations]." (Pen. Code § 1237, subd. (b); People v. Totari (2002) 28 Cal.4th 876, 882; People v. Gallardo (2000) 77 Cal.App.4th 971, 981-982; People v. Dubon (2001) 90 Cal.App.4th 944, 950.) "In an appeal from a trial courts denial of an application for the writ of error coram nobis, a reviewing court initially determines whether [petitioner] has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal." (People v. Totari, at p. 885, fn. 4.) In this case, the trial court did not reach the merits of petitioners claim, but decided in essence that petitioner had not made a prima facie showing of merit and thus was not entitled to a hearing. In our view, defendants claims, if valid, would come within one or more of the circumstances permitting appeal. Therefore, defendant may appeal to obtain review of the correctness of the trial courts order denying the petition without a hearing.
2. General Principles Governing Coram Nobis Relief
A 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." (People v. Gallardo, supra, 77 Cal.App.4th at p. 982.) A writ of error coram nobis is generally used to bring factual errors or omissions — not legal errors — to the courts 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) the petitioner has shown that the newly discovered evidence does not go to the merits of the issues tried; and (3) the 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. Castaneda (1995) 37 Cal.App.4th 1612, 1618-1619; People v. Gallardo, at p. 987.) "In view of these strict requirements, it will often be readily apparent from the petition and the courts own records that a petition for coram nobis is without merit and should therefore be summarily denied. When, however, facts have been alleged with sufficient particularity [citation] to show that there are substantial legal or factual issues on which availability of the writ turns, the court must set the matter for hearing." (People v. Shipman (1965) 62 Cal.2d 226, 230.)
However, "[a] petition for writ of error coram nobis places the burden of proof to overcome the strong presumption in favor of the validity of the judgment on the petitioner. This burden requires the production of strong and convincing evidence. A mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of the specific facts relied upon and not merely state conclusions as to the nature and effect of such facts." (People v. Stapleton (1956) 139 Cal.App.2d 512, 513-514.) Finally, the scope of our review is limited to the showing made before the trial court. (People v. Crouch (1968) 267 Cal.App.2d 64, 67.) We apply these general principles to defendants specific claims.
3. Lack of an Interpreter
Defendant argues that the court applied the wrong standard to his claim that he did not have an interpreter at the time of his plea. According to defendant, the court should not have placed the burden on him to show that he was prejudiced by the lack of an interpreter; instead, the court should have asked if the error in failing to provide an interpreter was harmless beyond a reasonable doubt. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1010.)
Defendants argument misapprehends the requirements of a writ of error coram nobis. Here, even assuming the truth of defendants allegations, those allegations do not amount to a showing that entitles him to relief. He alleges only that an interpreter was not present at the time of his plea, and that he learned of his entitlement to an interpreter on October 1, 2005. He does not allege that, at the time of his plea, he did not understand English. He does not allege that, because he did not understand English, and because he did not have an interpreter, his plea was not intelligent or voluntary. He does not allege that the court was unaware defendant needed an interpreter, and if the court had been aware of that fact, the court would not have entered judgment. Finally, he does not allege, much less explain why, it was not known to him, and could not in the exercise of due diligence have been discovered by him any sooner, that he did not understand English, needed an interpreter and did not knowingly or voluntarily enter his plea. Defendants bare allegations of the lack of an interpreter in 2003 and his discovery of his entitlement to one in 2005 do not state a prima facie claim for relief. The trial court did not err in summarily denying the writ on this ground.
4. Trial Court Failure to Advise of Immigration Consequences
Defendant next argues that the trial court should have granted the writ on the ground that the trial judge who took his 1993 pleas did not advise him of the immigration consequences of his pleas, as required by Penal Code section 1016.5. "To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement." (People v. Totari, supra, 28 Cal.4th at p. 884.)
Assuming it is true, as the unchecked box on the minute order suggests, that the trial court failed to advise defendant of the immigration consequences of his plea, defendant is not entitled to any relief. In the first place, his petition did not allege that the trial court failed to advise him of the immigration consequences of his plea; he alleged, and argued in his memorandum of points and authorities, only that his counsel, Mr. Thompson, failed to so advise him. He did not allege any immigration consequences, and he did not allege that he was prejudiced by the nonadvisement. He admits as much in his opening brief, but argues that he should not be "penalized by the inartful pleading of counsel" and "any problems of pleading could have been corrected had the trial court allowed [him] a hearing on the matter...." Appellate counsels arguments on appeal are no substitute for verified factual allegations by the coram nobis petitioner, and the trial court was not permitted, much less required, to grant a hearing on the basis of a complete failure to specify facts that might give rise to a claim for relief. (Cf. People v. Goodspeed (1963) 223 Cal.App.2d 146, 156 ["However laudable the objective, it cannot be attained ... by the unjustified use of legal process whose scope is extremely narrow [citations] under circumstances where the essential requisites for the issuance of the writ have not been shown to exist"].) Defendant did not make a prima facie showing of merit on this claim. Accordingly, the trial court did not err in denying the petition on this ground.
However, defendant argued in his memorandum of points and authorities: "[I]t is doubtful that [he] even understood the § 1016.58 [sic] admonition given to him by the district attorney." He fails to mention whether the admonition was given at the trial courts request.
5. Ineffective Assistance of Counsel
Finally, defendant contends the court should not have denied the petition on the ground of ineffective assistance of counsel, because habeas corpus is unavailable to him. Defendant is incorrect. "The requirement that no other remedy exist does not mean that the mere absence of alternative avenues of relief ipso facto qualifies the petitioner to redress in coram nobis. ... [E]ven if all other methods have been exhausted or are unavailable, the petitioner must still satisfy the full gamut of other requisites upon which issuance of the writ is conditioned. `[T]he remedy is not broad enough to reach every case in which there has been an erroneous or unjust judgment on the sole ground that no other remedy exists. In re Lindley [1947] 29 Cal.2d 209, 725." (Articles, The Writ of Error Coram Nobis in California (1990) 30 Santa Clara Law Rev. 1, 23, fn.110.)
It is by now well established that a claim of ineffective assistance of counsel in the pre-guilty plea advice given by counsel is "not an appropriate basis for relief by writ of coram nobis. [Citations.] The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by petition for a writ of habeas corpus." (People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) In In re Azurin (2001) 87 Cal.App.4th 20 the Court of Appeal determined that a person who alleged that as a result of his guilty plea he was "`unlawfully restrained of his liberty upon deportation proceedings " by the INS, but who was no longer in the in actual or constructive custody of the state, "did not meet the habeas corpus jurisdictional requirements of California law." (Id. at pp. 24, 26.) In combination, Soriano and Azurin clearly suggest that there are some cases in which neither coram nobis nor habeas corpus will lie to review a claim of ineffective assistance. This appears to be such a case: as defendant concedes, habeas corpus relief is unavailable to him because he is not in actual or constructive custody as a result of his underlying convictions. The trial court did not err by denying the petition on the ground that ineffective assistance of counsel claims are not reviewable on coram nobis.
As defendant has not made a prima facie showing of merit on any of his claims for relief, we may summarily dismiss the appeal. (People v. Totari, supra, 28 Cal.4th at p. 885, fn. 4; People v. Gallardo, supra, 77 Cal.App.4th at p. 983.)
CONCLUSION
A certificate of probable cause is not required to review the summary denial of a petition for writ of error coram nobis. The order is appealable. On appeal, the reviewing court determines whether the trial court correctly found no prima facie showing of merit. Defendant did not make a prima facie showing of merit in the trial court on any of the grounds raised on appeal (i.e., lack of an interpreter, trial court nonadvisement of immigration consequences, ineffective assistance of counsel) and the trial court did not err in summarily denying the petition for writ of error coram nobis.
DISPOSITION
The appeal is dismissed.
We concur:
Mihara, Acting P.J.
Duffy, J.