Opinion
B188605
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. MARVIN RICARDO ORTIZ, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell, and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Marvin Ricardo Ortiz, appeals from the denial of his coram nobis petition and Penal Code section 1016.5, subdivision (b) motion to withdraw his plea. Defendant argues Judge Michael S. Luros improperly denied his petitions. We affirm the denial of the coram nobis petition in case No. PA017910 and dismiss the appeal in case No. BA092363.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) We take judicial notice of the records in Court of Appeal case No. B091789, which affirmed defendants conviction and plea respectively in Los Angeles Superior Court case Nos. BA092363 and PA017910. (People v. Ortiz (Nov. 1, 1995, B091789 [nonpub. opn.].) In case No. BA092363, defendant was convicted of attempted murder (§§ 187, subd. (a), 664) and assault with a firearm (§ 245, subd. (a)(2)), and was found to have personally used a firearm and inflicted great bodily injury following a jury trial. (§§ 12022.5, subd. (a), 12202.7, subd. (a).) On February 28, 1995, defendant was sentenced to 14 years in state prison. In case No. PA017910, while in the county jail, defendant was charged with possessing a weapon made from a shoe shank and sharpened at one end. Following the guilty verdict in case No. BA092363, defendant agreed to waive time and continue the disposition in case No. PA017910 until sentencing in case No. BA092363. On March 24, 1995, defendant accepted an offer of a four-year prison term in case No. PA017910 in exchange for a guilty plea. The sentence was to be served concurrently with the 14-year sentence imposed in case No. BA092363. Prior to the acceptance of the guilty plea, defendant was advised of his constitutional rights relating to trial, confrontation, subpoena power, self-incrimination, and presentation of a defense. The prosecutor further advised defendant, "If youre not a citizen of the United States, admission of this offense could result in a denial of citizenship, deportation, or denial of re-entry into the United States." Thereafter, the prosecutor asked defendant, "Are you pleading guilty to the charge freely and voluntarily?" Defendant responded, "Yes."
On October 3, 1994, in case No. TA030048, defendant pled nolo contendere to a robbery (§ 211) and admitted he used a firearm in the course of the robbery. (§ 12022.5, subd. (a).) At the time of his plea in that case, defendant was specifically advised by the court, "As a consequence of your plea, if you are not a citizen, you can be deported, denied re-entry if you leave the country, and you can be denied naturalization." Defendant appealed his conviction in case No. BA092363. Appointed counsel filed an opening brief in which no issues were raised. Thereafter defendant filed two supplemental briefs raising the sufficiency of evidence as to identification. In an unpublished opinion, we ordered that the abstract of judgment be corrected but otherwise affirmed the judgment. (People v. Ortiz (Nov. 1, 1995, B091789) [nonpub. opn.].)
Ten years later, on November 1, 2005, defendant filed a "Motion for Writ of Error Coram Nobis under the All Writs Act, 28 U.S.C. § 1651(a)" in the Los Angeles County Superior Court related to case No. PA017910. On November 7, 2005, defendant filed a similar "Motion for Writ of Error Coram Nobis" related to case No. BA092363. Defendant argued that the cases be remanded and the judgments be vacated because he: was denied effective assistance of counsel; received an unfair trial; and continued to suffer legal consequences and serious harm as a result of his "unjust conviction." Defendant claimed he was never informed "by the court or by his attorney of possible deportation." Defendant further argued that in case No. BA092363, the prosecutor committed misconduct and defense counsel improperly declined a plea offer. The motion alleged, "Counsel made the decision to reject the plea offered not so much as a rational, professional judgment but an emotional one and without consulting [defendant] first." Defendant alleged that he was deported to El Salvador in 2002, where he was arrested and tortured. Defendant allegedly crossed the United States border where he was detained and subsequently sentenced to 84 months in federal prison for illegal reentry.
On November 4, 2005, Los Angeles Superior Court Judge Luros denied defendants coram nobis petition related to case No. PA017910: "`[B]ecause a statutory motion to vacate judgment brought pursuant to [Penal Code] section 1016.5, subdivision (b), and not the nonstatutory petition for writ of error coram nobis . . . is the remedy for relief. (People [v.] Carty (2003) 110 Cal[.]App[.]4th 1518, 1521). However, even treating the within Petition as a motion to withdraw the plea in this case under Penal Code section 1016.5, subdivision (b), that motion must likewise be denied inasmuch as Petitioner has failed to even contend much less present any evidence to substantiate that he would not have entered his plea had he been advised of his immigration consequences (see People [v]. Totari (2002) 28 Cal[.]4th 876, 884, People [v]. Zamudio (2000) 23 Cal.4th 183, 209-210)." Judge Luros denied defendants second petition related to case No. BA092363 on November 10, 2005, on the same grounds. Thereafter, defendant filed a notice of appeal and a probable cause certificate issuance motion in each case. On January 3, 2006, Judge Luros denied the probable cause certificate issuance motions but ordered the filing of the notices of appeal from the denial of the coram nobis petitions.
III. DISCUSSION
A. Introduction
Defendant argues the trial court improperly denied his coram nobis petitions solely on the basis of section 1016.5. We agree, in part, but find any error harmless. We address each case separately.
B. The Plea in Case No. PA017910
Defendant argues that in his petition related to his plea in case No. PA017910, he was not informed of the immigration consequences of his guilty plea. He claimed his trial lawyer was ineffective because she did not advise him of the potential immigration consequences. However, the courts have held: "Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel (People v. Rodriguez (1956) 143 Cal.App.2d 506, 508) or where the claim is that the defendant did not receive effective assistance from counsel (People v. Ibanez (1999) 76 Cal.App.4th 537, 546, fn. 13; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477). Where coram nobis raises only such grounds, an appeal from the superior courts ruling may be dismissed as frivolous. [Citations.]" (People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983.)
As a result, Judge Luros properly held that section 1016.5, subdivision (b) provided the appropriate remedy for challenging a failure to advise defendant of the immigration consequences of defendants plea. The Supreme Court has held: "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. [Citations.]" (People v. Totari (2002) 28 Cal.4th 876, 884; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200; People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) In Totari, our Supreme Court explained that the prejudice requirement involves the fact that if properly advised, the defendant would not have pled guilty or nolo contendere in the first place. (People v. Totari, supra, 28 Cal.4th at p. 884; People v. Watson (1956) 46 Cal.2d 818, 836.) Moreover, as our colleagues in Division Three of this appellate district held: "[O]nce the defendant receives a [section 1016.5] subdivision (a) advisement from the trial court prior to the plea, the defendant can no longer claim that the defendant was unaware of the immigration consequences specified in that advisement." (People v. Carty (2003) 110 Cal.App.4th 1518, 1526, original italics.) We review Judge Luross ruling on a section 1016.5 motion for abuse of discretion. (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 192; People v. Gutierrez (2003) 106 Cal.App.4th 169, 172; People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.)
Section 1016.5 provides in pertinent part: "(a) Prior to acceptance of a plea of guilty or 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 . . . 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 defendants 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. [¶] . . . [¶] (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 guilty or 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 guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendants counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction. . . ."
Here, prior to entering the plea on February 28, 1995, defendant was advised by the prosecutor of the potential immigration consequences as follows, "If youre not a citizen of the United States, admission of this offense could result in a denial of citizenship, deportation, or denial of re-entry into the United States." Thereafter, the prosecutor inquired, "[A]re you pleading guilty to the charge freely and voluntarily?" Defendant responded, "Yes." Defendants claim he was unaware of the potential immigration consequences of his plea is frivolous. Commissioner Michael G. Price found, "The court finds the defendant has made a knowing and intelligent waiver of his constitutional rights." The minute order of February 28, 1995, further reflects, "Defendant advised of possible effects of plea on any alien/citizenship . . . status." The advisement at the time of his plea defeats defendants claim that he was unaware of the immigration consequences. Moreover, in case No. B187043, our colleagues in Division One of this appellate district found that in a separate plea entered in October 1994, several months prior to his plea in this case, defendant was advised of the immigration consequences of his plea. In addition, defendant presented no evidence in his petition to demonstrate that he would not have entered his plea had he been advised of the immigration consequences. Defendant alleged, but provided no proof of either his deportation or his conviction in federal court for illegal re-entry. Judge Luros did not abuse his discretion in denying the section 1016.5 motion.
C. Defendants Conviction In Case No. BA092363
As noted previously, defendant was found guilty following a jury trial in case No. BA092363. Defendant concedes that section 1016.5 does not provide relief for convictions resulting from a jury trial. However, he argues that his coram nobis petition should have been heard as to his claims of ineffective assistance of counsel. Defendant argues his attorney, Maria Cevellazzi, failed to: inform him of the immigration consequences; inform him of the plea offer that the prosecutor had made prior to trial; and research and advise him and the court of sentencing options. Defendant further claimed prosecutorial misconduct occurred. A coram nobis petition is considered a nonstatutory motion to vacate judgment. (People v. Shipman (1965) 62 Cal.2d 226, 229, fn. 2; People v. Banks (1959) 53 Cal.2d 370, 378; People v. Thomas (1959) 52 Cal.2d 521, 527, fn. 2.) Associate Justice Walter H. Croskey has explained: "[T]he `purpose [of a petition] is to secure relief, where no other remedy exists. [Citations.]" (People v. Carty, supra, 110 Cal.App.4th at p. 1523, quoting People v. Adamson (1949) 34 Cal.2d 320, 326.)
Here, defendant appealed his conviction. We affirmed his conviction. (People v. Ortiz (Nov. 1, 1995, B091789) [nonpub. opn.].) The California Supreme Court has held: "Although section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the `substantial rights of the defendant, the right to appeal is limited by the qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment." (People v. Totari, supra, 28 Cal.4th at p. 882; People v. Thomas, supra, 52 Cal.2d at p. 527 ["appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and . . . would in effect indefinitely extend the time for appeal form the judgment"].)
All of defendants claims could and should have been raised on direct appeal in 1995. Moreover, section 1265 provides in pertinent part, "[I]f a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for writ of error coram nobis shall be brought to procure the vacation of that judgment, except in the court which affirmed the judgment on appeal." A coram nobis petition must be filed in the trial court before an appeal has been perfected. (People v. Stanworth (1974) 11 Cal.3d 588, 594, fn. 5 ["the trial court had no authority to hear [defendants motion to withdraw plea as petition for writ of error coram nobis] after the judgment on the issue of guilt had been affirmed on appeal"]; People v. Gallardo, supra, 77 Cal.App.4th at p. 982, fn. 6; People v. Haynes (1969) 270 Cal.App.2d 318, 321.) Because the appeal in this case is final, Judge Luros lacked jurisdiction to rule on defendants coram nobis petition. As a result, we lack jurisdiction to review Judge Luross finding for abuse of discretion. (See People v. Carty, supra, 110 Cal.App.4th at p. 1523 ["the `purpose [of a petition for a writ of error coram nobis] is to secure relief, where no other remedy exists. [Citations.]"]; People v. Gallardo, supra, 77 Cal.App.4th at pp. 983-985 [the defendant could not appeal from the trial courts order refusing to vacate judgment where it had no jurisdiction to do so because the order was not appealable]; People v. Pritchett (1993) 20 Cal.App.4th 190, 194 [a defendants substantial rights cannot be affected by an order denying that which he had no right to request].) As noted previously: "Coram nobis will not issue . . . where the claim is that the defendant did not receive effective assistance from counsel [citations]. Where coram nobis raises only such grounds, an appeal from the superior courts ruling may be dismissed as frivolous. [Citations.]" (People v. Gallardo, supra, 77 Cal.App.4th at pp. 982-983, original italics; People v. Ibanez, supra, 76 Cal.App.4th at p. 546, fn. 13.) We therefore dismiss the appeal with respect to that claim. Moreover, even if we had jurisdiction to review the order under review, defendants petition is untimely. (People v. Shipman, supra, 62 Cal.2d at p. 230; People v. Ibanez, supra, 76 Cal.App.4th at pp. 545-546.)
IV. DISPOSITION
The appeal of the order denying defendants coram nobis petition relative to case No. BA092363 is dismissed. The order denying the coram nobis petition in case No. PA017910 is affirmed.
We concur:
ARMSTRONG, J.
MOSK, J.