Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA054704 Patricia M. Schnegg, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Carlos Melendez appeals from an order denying his petition for a writ of error coram nobis, by which he sought to vacate his 1992 guilty plea to the sale or transportation of a controlled substance. Melendez contended below that his counsel was ineffective and that the trial court failed to advise him regarding the immigration consequences of his plea, as required by Penal Code section 1016.5. Melendez contends on appeal that because documents relied upon by the superior court when denying his coram nobis petition can no longer be located, the record is insufficient to allow meaningful appellate review, requiring that his motion be granted.
Melendez is also known as Herberth Morales Sazo and Adrian Rodriguez. (See People v. Sazo (May 20, 2010, B218516) [nonpub. opn.]); Evid. Code, § 451.)
All further undesignated statutory references are to the Penal Code.
We conclude that to the extent the coram nobis petition was based on an ineffective assistance of counsel claim, it was properly denied. Denial was also proper because a statutory motion pursuant to section 1016.5, rather than a coram nobis petition, is the proper procedural vehicle by which a defendant may challenge a trial court’s purported failure to give the requisite immigration advisements. However, because Melendez originally could have brought such a statutory motion under section 1016.5, and, on this record, it is appropriate for the trial court in the first instance to determine the propriety of granting such a motion, we remand the matter with directions to treat the coram nobis petition as a statutory motion under section 1016.5. (People v. Carty (2003) 110 Cal.App.4th 1518, 1521.)
FACTUAL AND PROCEDURAL BACKGROUND
On May 13, 1992, Melendez, a Guatemalan citizen, pleaded guilty to the sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), in Los Angeles Superior Court case No. BA054704. As part of a negotiated disposition, he was sentenced to a term of three years in prison.
On November 7, 2008, the trial court granted Melendez’s motion to expunge the conviction pursuant to section 1203.4.
In 2009, Melendez, acting in propria persona, filed a petition for a writ of error coram nobis seeking to vacate his 1992 plea. Melendez explained that he was 20 years old when he pleaded guilty in 1992. He has resided in the United States for the past 25 years, and his family and children all reside in California. He has been self-employed as a contractor for the past 20 years. As a result of the 1992 conviction, he is unable to obtain a contractor’s license and is “barred from lawful gainful employment” in the United States. The conviction prevents his “legal i[m]migration status with [his] United States [c]itizen family.”
Melendez claimed that he received ineffective assistance of counsel in the 1992 case because: (1) he and counsel spoke different languages and, as a result, never meaningfully conferred; (2) his attorney never advised him of the immigration consequences of his plea; and (3) counsel did not intelligently discuss the charges, potential defenses, or alternatives to the plea. Further, neither the trial court, the prosecutor, nor anyone else advised him of the immigration consequences of his plea, in violation of section 1016.5. As a result, his plea was neither knowing nor voluntary. Melendez averred that counsel and the court were aware of his non-citizen status, because he “did not speak any [E]nglish and had a translator.”
Melendez’s coram nobis petition also complained that his due process and Fourteenth Amendment rights were violated because the record does not contain a Spanish translation of the proceedings. Melendez does not advance this contention on appeal, and accordingly we do not address it.
On April 29, 2009, the trial court denied the petition. In a written order, the court explained: “While the court file no longer contains a transcript of the plea agreement, other court records of the proceeding establish that the Petitioner was appropriately advised of the consequences of his plea. Specifically, the minute order/sentencing sheet reflects that the petitioner utilized the services of the Spanish language interpreter at the time he entered his guilty plea in this case. The interpreter is identified in the record as Aaron Miranda. Also, the box on the sentencing sheet affirming that the petitioner was notified of potential immigration consequences was checked off, signifying that the appropriate advisement was given. Specifically it states: ‘Defendant advised of possible effects of plea on any alien/citizenship/probation/parole status.’ A copy of the sentencing sheets are attached hereto and incorporated herein by reference. Therefore, the record establishes that defendant was advised of his immigration consequences and that he was assisted by a Spanish interpreter throughout the proceeding.”
After Melendez filed a notice of appeal, appellate counsel moved to augment the record with the “sentencing sheet” referenced in the superior court’s April 29, 2009 order. On February 3, 2010, the clerk of the superior court certified that a “thorough search of the Superior Court Case file failed to produce a [s]entencing sheet/minute order that was attached to court’s order denying Pe[ti]tion for Writ of Coram Nobis. [¶] There are no attachments that are attached to the Order.”
DISCUSSION
1. Contentions of the parties.
Melendez argues that, because the “sentencing sheet” referenced by the superior court cannot be located, the record is inadequate for meaningful appellate review. He urges that the document referenced by the superior court was a substantial portion of the record, without which it is impossible to know whether he was “advised at all, let alone properly advised” of the immigration consequences of his plea. (See People v. Pinholster (1992) 1 Cal.4th 865, 921 [lost portion of the record is “substantial” if it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal], disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459.)
The People, on the other hand, assert that the coram nobis petition was properly denied because Melendez failed to establish the requisite elements, and the petition was untimely.
To prevail on a coram nobis petition, the petitioner must establish three elements, that is, “ ‘(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. [Citations.]’ [Citation.]” (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.)
2. Section 1016.5.
Section 1016.5, subdivision (a), requires that a trial court, prior to accepting a defendant’s plea of guilty or nolo contendere to an offense punishable as a crime under California law, advise 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.” Subdivision (b) of section 1016.5 provides in pertinent part: “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 guilty or 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 guilty or 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,” (Italics added.) In enacting the statute, the Legislature demonstrated concern that “those who plead guilty or no contest to criminal charges are aware of the immigration consequences of their pleas.” (People v. Kim (2009) 45 Cal.4th 1078, 1107.)
To prevail on a motion brought pursuant to section 1016.5, a defendant must establish: (1) at the time of the plea, the trial court failed to advise him of the immigration consequences of the plea as provided in 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) properly advised, the defendant would not have entered the plea. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 (Zamudio); People v. Chien (2008) 159 Cal.App.4th 1283, 1287; People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244; People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) We review a trial court’s ruling denying a motion to vacate the judgment for abuse of discretion. (People v. Chien, supra, at p. 1287; People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.)
3. Although the petition was properly denied, remand is appropriate so the trial court may consider the petition as a statutory motion pursuant to section 1016.5.
a. The coram nobis petition was properly denied.
Our decision in People v. Carty, supra, 110 Cal.App.4th 1518, guides our resolution of Melendez’s case. In Carty, the defendant pleaded no contest to a crime in 1996, and was placed on probation and house arrest. In 2002, Carty filed a petition for a writ of error coram nobis, seeking vacation of his plea. Carty alleged in his petition that, as a direct consequence of his plea, he was facing deportation proceedings and other “grave immigration consequences.” (Id. at p. 1522.) As here, Carty claimed both that the trial court had failed to give him the immigration advisements required by section 1016.5, and that his counsel was ineffective for failing to advise him concerning the immigration consequences of the plea. As a result, he urged, his plea was neither intelligent nor voluntary. (Ibid,) The trial court denied the petition on the ground that coram nobis would not lie to vacate a judgment due to ineffective assistance of counsel, and because the petition was untimely. (Ibid,)
We concluded that the petition was properly denied, but that remand was appropriate so the trial court could treat the coram nobis petition as a statutory motion brought pursuant to section 1016.5. (People v. Carty, supra, 110 Cal.App.4th at p. 1521.) We explained that coram nobis is a common law, nonstatutory remedy that generally lies to give relief where the petitioner, through fraud, coercion, or excusable mistake, was deprived of a fair trial on the merits, and no other remedy exists. (Id,at p. 1523; see also People v. Kim, supra, 45 Cal.4th at p. 1091.) After enactment of section 1016.5 in 1977, however, a statutory remedy exists when a defendant enters a plea without being given the statutorily-mandated immigration advisements by the trial court. (People v. Carty, supra, at pp. 1524-1526, 1529.) Subdivision (b) of section 1016.5 expressly provides that, upon a defendant’s motion, a trial court shall vacate the judgment and permit the defendant to withdraw the plea if the court failed to give the proper immigration advisements. We reasoned that this statutory motion, not a coram nobis petition, is the proper vehicle by which a defendant may seek to vacate his or her conviction on section 1016.5 grounds. (People v. Carty, supra, at pp. 1524-1525, 1529-1530.) Thus, we held in Carty that, because the statutory remedy had supplanted the common law, coram nobis remedy, the trial court properly denied Carty’s coram nobis petition. Accordingly, we affirmed the trial court’s order denying the petition. (Id. at p. 1529.) Nonetheless, we observed that Carty originally could have brought a statutory motion. (Id. at p. 1530.) “[I]n the interests of judicial economy and fairness, ” we remanded the matter “with directions that the trial court treat Carty’s petition as a statutory motion” and directed the court to conduct such further proceedings as it deemed appropriate. (Id. at p. 1531.)
As in Carty, the instant coram nobis petition was properly denied. To the extent the petition sought relief on the ground the trial court failed to advise Melendez concerning the immigration consequences of his plea, denial was proper because a statutory motion, rather than a coram nobis petition, was the proper remedy for relief. (People v. Carty, supra, 110 Cal.App.4th at p. 1529.) To the extent the petition raised an ineffective assistance of counsel claim, coram nobis did not lie. (See People v. Kim, supra, 45 Cal.4th at pp. 1095, 1104; People v. Chien, supra, 159 Cal.App.4th at p. 1290; People v. Gallardo (2000) 77 Cal.App.4th 971, 987.)
Additionally, a statutory section 1016.5 motion cannot be used to assert defense counsel’s failure to provide adequate representation relating to immigration consequences. (People v. Chien, supra, 159 Cal.App.4th at p. 1285.)
To the extent Melendez intends to argue on appeal that the purported lack of an interpreter was a basis for relief, this contention fails. Melendez admitted, in his coram nobis petition, that he was provided with an interpreter at the 1992 plea hearing.
For this same reason, we reject any contention that the record is inadequate to provide meaningful appellate review on the question of whether Melendez was provided with a translator.
Finally, we reject Melendez’s contention that the relief sought in the coram nobis petition must be provided because the record on appeal does not contain a copy of the “minute order/sentencing document” relied upon by the superior court. “ ‘ “A defendant in a criminal case is entitled to an appellate record adequate to permit ‘meaningful appellate review.’ ” ’ [Citation.]” (People v. Galland (2008) 45 Cal.4th 354, 370.) Reversal is required “ ‘ “only where critical evidence or a substantial part of a [record] is irretrievably lost or destroyed, and there is no alternative way to provide an adequate record so that the appellate court may pass upon the question sought to be raised.” ’ ” [Citations.]” (Ibid.) The record before us does not establish that the document in question has been irretrievably lost or is no longer available. Appellate counsel’s augmentation request sought the “[s]entencing sheet/min. order originally attached to court’s order denying Pet. for Writ of Coram Nobis.” As noted, the clerk’s certification stated that a search of the file failed to produce “a [s]entencing sheet/minute order that was attached to court’s order denying Petition for Writ of Coram Nobis. [¶] There are no attachments that are attached to the Order,” (Italics added.) The clerk’s certification established only that the document in question was not attached to the court’s order; it did not establish that it is no longer in the court file, where it must have been at the time the superior court made its ruling. On remand, the superior court can determine whether the document is still in the court file and, if necessary, hold a hearing to reconstruct or settle the record. (See generally People v. Galland, supra, 45 Cal.4th at p. 373.)
In any event, even if the document in question is determined to have been irretrievably lost or destroyed, that fact would not preclude meaningful appellate review. The absence of the document containing the checked box would not automatically entitle Melendez to relief. As noted, to establish a section 1016.5 claim, the petitioner must establish three elements. The missing document is relevant only to the first element, that is, whether the trial court provided the immigration advisements. At most, its absence would establish a rebuttable presumption that the first element was met. (See People v. Dubon, supra, 90 Cal.App.4th at pp. 954-956.) The “minute order/sentencing sheet” is not alleged to have any bearing on establishment of the two remaining elements Melendez must prove to establish entitlement to relief, nor does its absence preclude the People from rebutting the statutory presumption with other evidence.
b. Remand for consideration of the petition as a statutory motion.
While the superior court properly denied the coram nobis petition, we nonetheless remand so that it may consider the petition as a statutory section 1016.5 motion, in that Melendez could have brought such a statutory motion in the first instance. (People v. Carty, supra, 110 Cal.App.4th at pp. 1521, 1530-1531.) As noted, to establish entitlement to relief pursuant to section 1016.5, a petitioner must show three elements: (1) the trial court failed to provide the immigration advisements at the time of the plea; (2) at the time of the motion, there is more than a remote possibility the conviction will have one or more of the specified immigration consequences; and (3) the defendant would not have entered the plea had he or she been properly advised. (Zamudio, supra, 23 Cal.4th at p. 192; People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1244.)
The record suggests Melendez may be able to invoke the statutory presumption in regard to the first element. The superior court’s order states that the reporter’s transcript of the sentencing hearing no longer exists. As far as we can determine based upon the information in the superior court’s denial of the coram nobis petition, the checked box on the minute order is unlikely to constitute a sufficient record the section 1016.5 advisements were given. In People v. Dubon, supra, 90 Cal.App.4th 944, we held that a minute order containing language identical to that at issue here did not suffice to show the advisements were provided. (Id, at p. 955.) We explained that a minute order could constitute a sufficient record, but the Dubon minute order did not show the defendant had been given complete or accurate advisements. (Id. at pp. 954-955.) Under these circumstances, section 1016.5’s rebuttable presumption came into play, placing on the People the burden of proving by a preponderance of the evidence that the advisements were in fact given. (People v. Dubon, supra, at pp. 954-955.) Whether Melendez was properly advised, whether he would have entered the plea had he been properly advised, and whether there is more than a remote possibility the conviction will result in adverse immigration consequences are questions appropriate for resolution by the trial court in the first instance. (See People v. Akhile (2008) 167 Cal.App.4th 558, 565; People v. Carty, supra, 110 Cal.App.4th at pp. 1530-1531.) In the interests of judicial economy and fairness, remand is appropriate. (People v. Carty, supra, at p. 1531.)
We, of course, express no opinion on these issues.
DISPOSITION
The order denying Melendez’s petition for a writ of error coram nobis is affirmed. The matter is remanded to the trial court with directions to treat the petition as a statutory motion to vacate the judgment brought pursuant to section 1016.5, subdivision (b), and to conduct such further proceedings with respect to such motion as are appropriate.
We concur: KLEIN, P. J., CROSKEY, J.