Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC050706
SIMONS, J.
In June 2002, defendant Guillermo Mendoza (appellant) pled no contest to a charge of possession for sale of marijuana (Health & Saf. Code, § 11359) and admitted an arming enhancement (Pen. Code, § 12022, subd. (a)(1)). In July 2007, appellant moved to vacate the judgment and set aside his plea; the motion was styled, in the alternative, a petition for writ of error coram nobis. Appellant argued he received ineffective assistance of counsel because his counsel misled him regarding the immigration consequences of his plea and failed to adequately investigate the available defenses to the charges. The motion was summarily denied and then denied a second time on the merits upon reconsideration by the trial court. We affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
In January 2002, the District Attorney for San Mateo County filed an eight count information charging five defendants with various drug and weapons charges. In June, appellant entered his no contest plea to possession for sale of marijuana (Health & Saf. Code, § 11359) and admitted an arming enhancement (§ 12022, subd. (a)(1)). At the time of the plea, the trial court advised appellant regarding potential immigration consequences as required under section 1016.5. The court sentenced appellant to the lower term of 16 months.
The court stated: “Do you also understand, Mr. Mendoza, if you are not a citizen, conviction of a criminal offense will have the consequences of deportation, exclusion from admission or denial of naturalization?” Appellant answered in the affirmative. On appeal, appellant does not contend that the court’s advisement failed to comply with section 1016.5.
In July 2007, appellant filed a motion to vacate the judgment or, in the alternative, petition for writ of error coram nobis. On August 10, 2007, the trial court summarily denied the motion. On September 20, appellant renewed the motion. On October 12, the trial court reconsidered the motion and then denied it on the merits.
The motion was not entitled a motion for reconsideration, but the trial court treated it as such.
DISCUSSION
I. Appealability
Appellant filed his notice of appeal on December 10, 2007. Respondent contends the appeal is untimely because it was not filed within 60 days of the original denial of appellant’s motion in August 2007. (See Cal. Rules of Court, rule 8.308.) Respondent argues the October 2007 decision was a denial of a motion for reconsideration that did not extend the time for filing the notice of appeal. (See Morton v. Wagner (2007) 156 Cal.App.4th 963, 968-969.)
The trial court originally summarily denied appellant’s motion to vacate after appellant’s counsel failed to appear at the August 2007 hearing. At the October 12 hearing on appellant’s renewed motion to vacate, appellant’s counsel explained he had arrived at the court 10 minutes late for the August hearing. The trial court treated the renewed motion to vacate as a motion for reconsideration, which it granted, stating “That’s fine, certainly on that basis I’ll grant you your requested relief.” The court then proceeded to deny the underlying motion to vacate: “I don’t find at this point that there has been any prima facie evidence sufficient to warrant any further hearing in this matter. I will do this, on the basis of the merits. [¶] So, I am reconsidering the prior decision that I made, but frankly, I made that after reading all the pleadings. The difference being here today I am taking into account the arguments of counsel, but the motion will be respectfully denied at this time.”
Since the court did agree to reconsider appellant’s motion to vacate, respondent’s assertion that the trial court denied appellant’s request for reconsideration is incorrect. The notice of appeal was timely.
II. Denial of the Underlying Motion to Vacate/Petition for Writ of Error Coram Nobis
Appellant’s July 2007 pleading was styled a motion to vacate the judgment or, in the alternative, petition for writ of error coram nobis. Appellant contends the trial court should have vacated the 2002 judgment and plea because he received ineffective assistance of counsel, in that counsel misled him regarding the immigration consequences of his plea and failed to adequately investigate the available defenses to the charges.
The writ of error coram nobis is a common law remedy that provides relief where the petitioner was deprived of a fair trial through fraud, coercion, or excusable mistake. (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The purpose of the writ is to make relief available “ ‘where no other remedy exists.’ ” (Ibid., italics omitted.)
Under federal immigration law, possession for sale of a controlled substance is a drug trafficking offense that renders deportation mandatory. (People v. Chien (2008) 159 Cal.App.4th 1283, 1285.)
Under both the state and federal Constitutions, a criminal defendant has a right to the effective assistance of counsel, including during plea bargaining and pleading. (In re Resendiz (2001) 25 Cal.4th 230, 239.) A defendant seeking to reverse a conviction on the ground of ineffective assistance must show both that counsel’s performance was deficient and that defendant suffered prejudice. (Id. at p. 239.) To show deficient performance, defendant must establish that “counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.” (Ibid.) Appellant bears the burden of proving his entitlement to relief by the preponderance of the evidence. (Id. at p. 249; People v. Ledesma (1987) 43 Cal.3d 171, 218; see also People v. Tucker (1957) 154 Cal.App.2d 359, 362 [petition for writ of error coram nobis must be supported by clear and convincing evidence].)
Appellant has failed to establish “ ‘by a preponderance of substantial, credible evidence’ ” (In re Resendiz, supra, 25 Cal.4th at p. 249) that his counsel’s performance in the 1992 proceedings was deficient. Appellant asserts that counsel told him that he would “not be deported if he entered a plea of no contest.” He also asserts that counsel did not discuss possible defenses with him, did not conduct an investigation, and did not seek “an alternative resolution to the case.” However, appellant provides no citations to evidence in the record supporting those assertions, and our review of the record discloses no competent evidence supporting them. The only evidence proffered by appellant below was a declaration from his present counsel, averring that appellant’s former counsel “told him he would not be deported if he entered a no contest plea” and that appellant “has informed this Declarant that he was not advised of the possible defenses in this case by his attorney.” Those portions of the declaration were inadmissible hearsay that provided no support for appellant’s ineffective assistance claim. (In re Gay (1998) 19 Cal.4th 771, 818; In re Fields (1990) 51 Cal.3d 1063, 1070; cf. Resendiz, at p. 251 [the petitioner testified that his counsel told him he would have “ ‘no problems with immigration’ ” if he pled guilty].) Moreover, respondent submitted below a declaration from appellant’s former counsel, in which counsel denied telling appellant he would not be deported if he pled no contest.
In his briefs, appellant does not specify a statutory basis for his motion to vacate; nor does he cite authority that a petition for writ of error coram nobis is available in the circumstances of this case. (See Chien, supra, 159 Cal.App.4th at p. 1290 [petition for writ of error coram nobis may not be based on counsel’s failure to adequately advise regarding immigration consequences].) In appellant’s principal case, In re Resendiz, supra, 25 Cal.4th 230, relief was sought pursuant to a petition for writ of habeas corpus. That writ is unavailable here because appellant has served his sentence. (See Chien, at p. 1290.) Issues relating to a defendant’s ability to bring an ineffective assistance of counsel claim based on misadvisement regarding immigration consequences are pending before the California Supreme Court in People v. Kim, review granted July 25, 2007, S153183. (Chien, at p. 1290.) Because appellant has failed to show his counsel’s performance was deficient, we need not address those issues in this case.
Respondent objected to the declaration on hearsay grounds. At the October 2007 hearing, appellant’s counsel acknowledged the objection and suggested that the trial court order that appellant be brought to testify, because he was in the custody of federal authorities. The court denied the request, stating “I don’t see any reason why there couldn’t have at least been a declaration attached from Mr. Mendoza even though he may be in federal custody. There isn’t anything that would have hindered his ability to provide counsel with a specific declaration regarding this issue.” Appellant does not contend the trial court erred in this respect.
The trial court found there was no “prima facie evidence sufficient to warrant any further hearing in this matter.” Appellant has failed to show the trial court erred.
DISPOSITION
The trial court order is affirmed.
We concur. JONES, P.J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.