Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1040761. Hurl W. Johnson, Judge.
Immigrant Crime and Justice, Karl W. Krooth and Katherine P. Dwight for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural and factual Histories
This is one of two appeals filed by appellant Marciano Paramo in which he seeks review of a trial court order denying a petition for writ of error coram nobis, filed by Paramo to challenge his 2003 conviction for burglary. (Pen. Code, § 459) The first appeal is case No. F053779. Each appeal arises from separate orders of the trial court and raises slightly different legal issues. We have not consolidated them, but adopt the same summary of procedural and factual histories in each to provide an overview of the issues.
All further references are to the Penal Code unless otherwise noted.
The criminal complaint filed in 2002 initially charged two counts of first degree burglary, alleging that Paramo had entered the home of a neighbor on more than one occasion with the intent to commit theft. Pursuant to a negotiated plea agreement, Paramo pled guilty to one count of burglary. The second count was dismissed with a Harvey waiver for restitution purposes. Prior to the plea, the prosecutor described the factual basis of the plea as follows:
People v. Harvey (1979) 25 Cal.3d 754.
“On or about March 27th of the year 2002 the defendant entered the home of Veronica Gallo, with the intent to commit theft therein. He did not have consent to enter the home; and upon entering the home, he did take several CDs and other property belonging to the … victim. This also was caught on videotape at the time.”
The victim was a neighbor. The neighbor reported that the house had been burglarized several times over several months and that, because Paramo was the suspected burglar, the neighbor set up a video camera. The video showed Paramo entering the home through a window. When confronted, Paramo initially told law enforcement that he entered the home looking for cigarettes, but took no property. Later he admitted taking a couple of CDs. He also admitted breaking in on prior occasions and that he had taken some cash and jewelry because he was behind in his bills. The second count related to the previous entries. Prior to taking the plea, the trial court explained:
“And so this is a situation where the Court did the preliminary hearing on this case. Unfortunately, we weren’t able to work out a resolution at that time. The attorneys have been attempting to do so, and the attorneys have reached an agreement now where [Paramo] would plead to the burglary of Count I, the 27th day of March 2002. Count II would be dismissed for a Harvey waiver for restitution purposes. [¶] If he does that, it will be the three years formal felony probation, 360 days in the county jail. Give him time for work furlough or AWP. Standard terms and conditions, search clause for stolen property, things of that nature. [¶] Now, that’s pretty much what would happen if he enters his plea. If he doesn’t enter his plea, he’s taking chances going to trial. This Court heard the prelim and it looks like there would be a strong likelihood, unless the evidence has disappeared, that the People would prevail on both counts. That’s the situation. Chances are, if I heard the trial and he was found guilty of both counts, I would send him to state prison. So everybody’s taking that into consideration in reaching this decision this morning.”
The trial court then gave full advisements of statutory and constitutional rights and advised Paramo pursuant to section 1016.5 that, if he was not a citizen, his plea might have adverse immigration consequences. Paramo said he understood the consequences and entered his plea. Paramo is a resident legal alien whose wife and family are citizens of this country. Paramo was placed on formal probation for a period of three years and ordered to serve 360 days in jail.
Nearly four years later, on June 22, 2007, Paramo filed a writ of error coram nobis alleging that the trial court induced him to plea and to waive his right to a jury trial by threatening to deny probation and exaggerating the likelihood that Paramo would serve a prison term if he went to trial. The petition was denied on June 26, 2007. The trial court ruled that there were no threats used to compel Paramo’s plea and that the trial court was simply stating the law. Section 462 requires prison time for a residential burglary conviction absent unusual circumstances, and the trial court saw none in this case. The court found that Paramo had ample opportunity to confer with his attorney about the risks of going to prison and that Paramo’s plea was voluntarily and freely made. Paramo has appealed the order in case No. F053779, which is pending before this court.
At some point Paramo claimed to have renewed his claim of factual ignorance in the trial court. There is no record, however, of a renewed or second petition. Paramo did seek and obtain a settled statement of record on May 5, 2008. On the same date and in the same order, the trial court denied having made any findings on a petition for reconsideration of its earlier denial of the petition for writ of error coram nobis. The court also considered a writ of habeas corpus and an apparent second petition for writ of error coram nobis and denied both.
The trial court’s order reads as follows:
“As noted in the [court’s] original order of 6/26/07 denying the [earlier] petition[,] the plea petitioner entered was a negotiated disposition. The court heard the preliminary hearing on this matter and there was no evidence presented in that hearing or … when the plea was taken that petitioner somehow did not [intend] to commit theft but only intended to commit vandalism. The plea was done freely and voluntarily and defendant [was] advised of immigration consequences. Petitioner further argues defense counsel should have negotiated for a disposition for ‘theft or any felony’ which would somehow not trigger immigration proceedings. Petitioner’s argument has no merit[. T]he court is required when taking a plea to make certain that there is a factual basis before accepting the plea. Here the evidence showed [Paramo] entered the inhabited dwelling on two separate occasions, was seen on video on one occasion and when confronted with his actions admitted he entered to commit theft. The guilty plea was neither coerced nor [uninformed], petitioner made a free and voluntary decision to enter a plea to take advantage of the offer and not run the risk of going to trial and perhaps being sentenced to prison. To present these arguments, at this stage of the proceedings to avoid adverse immigration consequences is not credible, does not show any due diligence and does not contain any ‘newly discovered evidence.’ The petitions have no merit and are denied.”
Since Paramo was no longer in custody or on probation at the time, the petition for writ of habeas corpus was denied on the basis that the court lacked jurisdiction. The May 5, 2008, order is the subject of the appeal in this case, although Paramo concedes that the denial of the petition for writ of habeas corpus is not an appealable order (In re Clark (1993) 5 Cal.4th 750, 773), and this court has limited the appeal to the denial of the petition for writ of coram nobis in its order dated July 17, 2008.
On January 7, 2009, Paramo also filed a petition for writ of habeas corpus in this court (case No. F056760), alleging he was denied effective assistance of counsel at trial because counsel did not litigate against conviction of a crime involving moral turpitude and that the trial court violated its neutrality.
We have taken judicial notice of the appellate record in case No. F053779 by order dated November 5, 2008, and of the record in case No. F056760 by order dated January 15, 2009. (Evid. Code, § 452, subd. (d).)
Discussion
The writ of error coram nobis is a nonstatutory, common-law remedy. (People v. Kim (2009) 45 Cal.4th 1078, 1091 (Kim).) 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 which 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 error coram nobis is not intended to authorize review of final judgments, but only to authorize a court to recall a prior judgment in 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.) We review the grant or denial of a writ of error coram nobis under the deferential abuse-of-discretion standard. (Kim, supra, 45 Cal.4th at p. 1096.)
There are three requirements that must be met before relief can be granted. First, the petitioner must prove that some fact existed, which, without any fault or negligence on the petitioner’s part, was not presented to the court and which, if presented, would have prevented the rendition of the judgment. Second, the petitioner must prove that the newly discovered evidence does not go to the merits of the issues tried, even if the evidence in question was not discovered until after judgment is final. Lastly, the petitioner must prove that the fact was unknown to him and could not have been discovered by him at any time substantially earlier even with the exercise of due diligence. (People v. Shipman (1965) 62 Cal.2d 226, 230.) Additionally, the writ of error coram nobis, like other writ relief, is unavailable when a litigant has some other remedy at law. (Kim, supra, 45 Cal.4th at p. 1093.)
The issues raised in this case were recently addressed in two California Supreme Court decisions, Kim, supra, 45 Cal.4th at page 1093, and People v. Villa (2009) 45 Cal.4th 1063 (Villa), and both have been resolved against Paramo. As an intermediate appellate court, we are bound by the decisions of our state Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [intermediate appellate courts have no jurisdiction to refuse to follow binding precedent of state Supreme Court].)
Factual ignorance
In Kim, the underlying claim was similar to the one raised here by Paramo. The petitioner claimed that, when he entered his plea to the crime of petty theft with a prior, he was unaware it was one categorized under federal immigration law as a crime of moral turpitude making him subject to deportation. The court said when determining whether a “‘“newly discovered fact”’” qualifies as the basis for a writ of error coram nobis, “we look to the fact itself and not its legal effect.” (Kim, supra, 45 Cal.4th at p. 1093.) The writ is not available to a defendant who pleads guilty to an offense and then claims ignorance or mistake as to the legal effect of the plea. (Ibid.) The court presented an extensive list of those types of situations in which the writ has issued and those in which it has not. Included in the list of those situations in which the writ has issued are those cases where a defendant was dead; a slave; a minor when judgment was entered; when notice or service was invalid unbeknownst to the court; or when counsel or a defendant is fraudulently induced to stay away from trial. (Id. at pp. 1094-1095.) These cases represent structural error based on a fact, which, had it been known to the court, would have prevented rendition of judgment. Those cases in which the courts have found that a defendant was not entitled to writ relief include those where a defendant’s plea had some unknown legal consequence, such as eligibility for civil commitment, ineligibility for a diversion program, increased penalty, etc., or where the challenge was to the legality of the arrest, the failure of counsel to present evidence on a defense, or a failure of the court to make certain findings. (Id. at p. 1095.) In other words, the type of error, which, had it been known, would have resulted in correction, but which would not have prevented the court from entering judgment. These same errors are those regularly challenged by disgruntled defendants in motions for new trials and on appeal. (Ibid.)
Although presented with slightly different nuances, Paramo’s claim is essentially the same as the one raised in Kim and falls into the second category of cases, those where writ relief is not proper. Paramo claims that he was ignorant of the “fact” that, had he pled to commission of a burglary defined as having the specific intent to commit larceny or any other felony, instead of having the specific intent to commit larceny, he would have had a greater chance of avoiding adverse immigration consequences. (See Cuevas-Gaspar v. Gonzales (9th Cir. 2005) 430 F.3d 1013, 1018 [under categorical approach, burglary not a crime involving moral turpitude unless accompanied by larcenous intent].) Paramo has misclassified his claim as one based on a previously unknown fact. To the contrary, his claim involves unknown legal implications of the plea and the search for alternative theories of guilt. This is not the type of error corrected by coram nobis. (Kim, supra, 45 Cal.4th at pp. 1093, 1095; see also People v. Banks (1959) 53 Cal.2d 370, 378; People v. Ibanez (1999) 76 Cal.App.4th 537, 546.)
We are accepting Paramo’s claim at face value. Given the language of Kim, holding that this type of mistake of fact is not susceptible to coram nobis relief, we need not address the many other problems with Paramo’s claim. For instance, even though he might avoid a finding under federal immigration law that his offense is categorically one of moral turpitude (see Huerta-Guevara v. Ashcroft (9th Cir. 2003) 321 F.3d 883, 887), we question whether, given the factual basis of the plea, which is in the trial court record of conviction, Paramo could avoid a finding that his crime was one of moral turpitude under a modified categorical approach. (See Tokatly v. Ashcroft (9th Cir. 2004) 371 F.3d 613, 620.) The trial court said it would not have accepted a plea without the larceny-intent element because it lacked a factual basis. We also accept Paramo’s claim that he would rather have served a lengthy prison term than face deportation. Finally, we accept Paramo’s unsupported claim that he would have been able to negotiate a more favorable plea had the immigration consequences of the plea negotiated been known to him at the time.
Further, the type of factual ignorance or mistake of fact pertinent to a writ of error coram nobis is one that would have prevented the rendition of judgment. The fact that Paramo was misinformed about the immigration consequences of his plea, or did not know he should have sought an amendment to the criminal complaint to avoid adverse immigration consequences, is not the type of error that prevents rendition of judgment. Paramo’s defense was not an actual defense to the crime, but a manipulation of the pleadings to avoid immigration consequences. No new facts, inculpatory or exculpatory, have been presented. No missing evidence has been uncovered. The factual ignorance Paramo alleges is not factual ignorance at all, but legal ignorance, and is inappropriate for coram nobis relief.
Trial irregularities
In addition to his argument regarding factual ignorance, Paramo challenges a number of alleged legal errors committed by the trial court at the preliminary hearing and relied on by the trial court as establishing the factual basis of the plea. For example, Paramo points to declarations from both himself and his wife claiming that he entered the residence to retrieve CDs his wife had lent to the victim and claiming that Paramo had no financial motive to steal, contrary to other evidence that he had financial difficulties. He claims his admission never included the intent to steal and did not include a motive. Paramo’s wife acted as interpreter, translating from Spanish to English the Miranda advisements and Paramo’s admission to the English-speaking investigating officer. Her translations were confirmed by Paramo’s employer, who spoke fluent Spanish and who listened to the questioning.
Miranda v. Arizona (1966) 384 U.S. 436.
Paramo claims admission of the employer’s confirmation violated the rule against admission of double hearsay and lacked foundation. He also argues the admission was solicited in violation of his Fifth Amendment rights because there is no proof his wife read the Miranda warnings as written on the card provided by the investigating officer. It is not clear from the appellate briefing whether Paramo is challenging the admission of this evidence as his basis for coram nobis relief or whether he is simply using the evidentiary challenges to bolster his claim that he would not have entered the plea had he known the immigration consequences.
In any event, Paramo’s contentions fail. Any challenge to the truth or falsity of the evidence was resolved when Paramo entered his plea and is not subject to review by coram nobis. Whether the evidence was properly admissible is a legal challenge not subject to writ relief. (See Kim, supra, 45 Cal.4th at p. 1092 [writ of error coram nobis does not lie to correct any error in judgment nor to contradict or put in issue any fact directly passed upon and affirmed by judgment itself]; People v. Ibanez, supra, 76 Cal.App.4th at p. 546, fn. 13 [coram nobis cannot be used to correct legal error unless error is jurisdictional]; Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 796-797 [truth or falsity of evidence once adjudicated cannot be readjudicated by writ of coram nobis, nor can writ be granted to set aside judgment obtained by concealed or suppressed evidence].) Nonjurisdictional errors at trial are not reviewable under coram nobis, even when the time for seeking relief by motion for new trial or appeal has expired. (People v. Reid (1924) 195 Cal. 249, 257-258.)
Although Paramo claims that, had he known of the immigration consequences of his plea, he would have gone to trial and challenged these claimed errors (admission of his confession, admission of the translation of his confession, and the confirmation of the confession’s translation), we have no way of knowing whether the challenges would have been successful. Although Paramo was not advised specifically by either counsel or the court that the crime he admitted was a crime of moral turpitude under federal immigration law, Paramo was given the standard, statutorily mandated advisement pursuant to section 1016.5, subdivision (a). Even if he had not been properly advised, he would have no claim on coram nobis. Section 1016.5 provides a statutory remedy for the failure to advise of immigration consequences. Since a statutory remedy is available, coram nobis relief is not. (Mendez v. Superior Court, supra, 87 Cal.App.4th at p. 798.)
Even if there is a strong probability that Paramo’s evidentiary challenges would have been successful, a trial court’s legal error does not provide a sufficient ground for coram nobis relief absent a showing that the error would have prevented rendition of judgment had it been recognized as error, i.e., the error is jurisdictional or structural in nature. (Kim, supra, 45 Cal.4th at p. 1092; People v. Ibanez, supra, 76 Cal.App.4th at p. 546, fn. 13.) Paramo has not made this type of showing.
We offer no opinion on the merits of Paramo’s claims of error. Since we have resolved the issue on other grounds, we also offer no opinion on whether Paramo was diligent in discovering the immigration consequences of his plea and seeking relief in a timely fashion.
Ineffective assistance of counsel
Lastly, Paramo claims that the trial court erred in refusing to address his claim of ineffective assistance of counsel when denying the petition for writ of error coram nobis. This claim too has been rejected by our state Supreme Court in Kim, supra, 45 Cal.4th at page 1095. The key prerequisite to gaining relief on habeas corpus is a petitioner’s custody status. Paramo is no longer in custody or on probation for the offense. A petitioner who is no longer in custody and no longer on probation or parole is no longer in custody. (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.) Paramo cannot challenge the collateral consequences of his prior conviction, the adverse immigration consequences, by writ of habeas corpus, claiming ineffective assistance of counsel. (Id. at p. 1074.) This challenge also cannot properly be raised in a petition for writ of error coram nobis. (Kim, supra, 45 Cal.4th at p. 1095; People v. Ibanez, supra, 76 Cal.App.4th at p. 546.) “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. [Citations.]” (Kim, supra, at p. 1104.) “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.)
Paramo raised a number of complaints about his legal representation, including being misadvised about the immigration consequences of his plea, failure to request favorable jury instructions, and the failure to object to certain jury instructions requested by the prosecution.
DISPOSITION
The order denying the petition for writ of error coram nobis is affirmed.
WE CONCUR: Hill, J., Kane, J.