Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. HEF001584 Rodney L. Walker, Judge.
Mark A. Davis for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, Garrett Beaumont and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Humberto Reyes appeals from an order denying a post judgment motion to vacate judgment (Pen. Code, § 1016.5) and petition for writ of error coram nobis. The post judgment applications were made on the ground a Spanish language interpreter did not sign the change of plea form prior to defendant’s guilty plea to possession for sale of methamphetamine (Health & Saf. Code, § 11378) in 1998. We affirm.
1. Background
On July 2, 1998, the defendant was charged with possession for sale of methamphetamine (Health & Saf. Code, § 11378, count 1), and unlawful sale, transportation or furnishing of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) On July 14, 1998, at a pre-preliminary hearing felony settlement conference (Pen. Code, § 859a), the defendant entered into a plea agreement by which he agreed to plead guilty to count 1 in return for dismissal of count 2 and another pending case, No. HED 99534, and the agreement that probation would be granted. A Spanish language interpreter translated the proceedings relating to the entry of the plea. The change of plea form, which defendant signed under penalty of perjury, stated he understood that the consequences of the plea included possible deportation or exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. The interpreter did not sign the form.
In open court, the court asked defendant if his signature on the change of plea form meant that he understood all of his legal and constitutional rights, and defendant responded in the affirmative. The court also asked defendant if he needed more time with his attorney before proceeding, and defendant gave a negative response. After the defendant entered his guilty plea, the court found defendant had been advised of and understood his constitutional rights, that he knowingly, intelligently, freely and voluntarily waived those rights and it accepted the plea. In pronouncing immediate judgment, the court placed defendant on probation for three years under several conditions. Among the terms of probation were the conditions that, “If you are expelled or deported, you shall not enter the United States illegally,” followed by, “And terms 2 through 19 shall be suspended during any period of deportation.” When asked if he understood the terms and conditions of probation, defendant responded, “Yes.”
Nine years later, on March 27, 2007, defendant filed a motion to vacate judgment, or, alternatively, a petition for writ of error coram nobis on the ground his plea of guilty was not knowing, intelligent or voluntary and was entered into by excusable mistake in that the trial court did not know that petitioner did not review his plea form in Spanish with a Spanish speaking interpreter. In support of the motion/petition, defendant included his declaration, stating that at the time of his plea, the interpreter did not translate the form he signed, she only assisted him when he stood in front of the judge and that he did not believe that anyone translated the plea documents he signed. He also did not recall any admonitions relating to immigration consequences given by the court, and if he had known that signing the plea form would trigger his deportation he would not have signed the form.
On June 1, 2007, the court denied the motion to vacate judgment and petition for writ of error coram nobis. Defendant timely appealed the denials. On appeal, defendant claims that (1) the trial court erred in denying the petition for writ of error coram nobis because it could not have legally rendered judgment if it had known the change of plea form had not been translated for defendant; (2) his due process rights were violated due to lack of adequate admonition of immigration consequences of his plea; and (3) the court erred in denying the statutory motion to vacate the judgment (Pen. Code, § 1016.5) because the record does not establish that defendant understood the potential immigration consequences of his plea. We disagree with his contentions and affirm.
2. Discussion
A. The Trial Court Properly Denied the Petition for Writ of Error Coram Nobis.
In support of his argument that the court erred in denying his petition for writ of error coram nobis, defendant claims the court failed to see that defendant’s change of plea form was not translated or signed by an interpreter, which he claims constitutes an unknown fact justifying coram nobis relief. Defendant is mistaken for three reasons: (1) the fact the plea form was not signed by an interpreter does not necessarily mean the immigration consequences were not explained to him; (2) the fact the interpreter did not sign the plea form was known at the time of the plea; and (3) the ground asserted constitutes a legal error for which relief by way of coram nobis is unavailable.
A writ of error coram nobis permits the court that rendered judgment to reconsider it and give relief from errors of fact. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) It does not lie to correct errors of law. (Ibid.; Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 798.) A writ of error coram nobis is reviewed under the standard of abuse of discretion. (People v. Ibanez (1999) 76 Cal.App.4th 537, 544.)
To be entitled to relief by way of coram nobis, the defendant must meet three requirements: (1) He must show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and that would have prevented the rendition of the judgment; (2) that the newly discovered evidence does not go to the merits of issues tried; and (3) 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. Shipman (1965) 62 Cal.2d 226, 230.)
A mistake of fact is where a person understands the facts to be other than they are; whereas a mistake of law is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts. (People v. LaMarr (1942) 20 Cal.2d 705, 710.) A claim that defendant was ignorant of a legal consequence before he pleaded guilty is an insufficient ground in support of his petition, because it is a legal, not factual issue. (People v. Ibanez, supra, 76 Cal.App.4th at p. 546.) A trial court’s failure to advise a defendant of immigration consequences pursuant to Penal Code section 1016.5, subdivision (a), although arguably a legal error, may be a “fact” for purposes of Shipman’s requirement that a petition must show “some fact existed.” (People v. Carty (2003) 110 Cal.App.4th 1518, 1528, fn. 10.) But our inquiry does not end there.
Defendant does not assert that the trial court failed to advise him of the immigration consequences of the plea. He asserts the newly discovered “fact” was the trial court’s failure to see that defendant’s plea form was not translated or signed by an interpreter. The fact the court did not see that an interpreter did not translate the form word for word does not mean the immigration consequences of the plea were not fully explained to — or understood by — the defendant. A court’s failure to see that an interpreter has not signed a change of plea form is not a fact which would have prevented the rendition of judgment.
Further, the “fact” that the interpreter did not sign the form was known—or at least obvious—at the time the defendant entered his guilty plea, and is not a newly discovered fact. The “fact” defendant now claims that the contents of the form were not explained to him in Spanish is not a newly discovered fact; it is an assertion he was ignorant of the legal consequences of the plea, which is not an issue of fact that may be resolved by a writ of error coram nobis. (People v. Ibanez, supra, 76 Cal.App.4th at p. 546.)
The “fact” the court did not see that the interpreter failed to sign the change of plea form was not a newly discovered fact that would have prevented the rendition of the judgment. The court did not abuse its discretion in denying the petition for writ of error coram nobis.
B. A Due Process Violation May Not Be Presented in a Petition For Writ of Error Coram Nobis.
Defendant claims his due process rights were violated because the inadequate admonishment respecting the immigration consequences of the plea did not put him on notice of his constitutional rights nor the potential immigration consequences he faced. This ground must fail because coram nobis is not available to correct legal errors. (People v. Ibanez, supra, 76 Cal.App.4th at p. 545.) A constitutional challenge to the legality of the guilty plea is a legal challenge.
C. The Motion to Vacate the Judgment Pursuant to Penal Code Section 1016.5 Was Properly Denied Where the Record Shows the Court Substantially Complied With the Requirement and Defendant Acknowledged He Understood the Potential Immigration Consequences of His Plea.
Defendant asserts the court erred in denying the motion to vacate the judgment under Penal Code section 1016.5, governing situations in which the defendant is not advised of the immigration consequences of his guilty plea. He refers to his arguments relating to the denial of the coram nobis petition to establish the failure of the court to give the advisement. He appears to be arguing that the lack of the interpreter’s signature on the change of plea form constitutes a failure to admonish him in compliance with Penal Code section 1016.5. We disagree.
The legislative intent behind the provision of relief from a guilty plea for defendants who were not advised of the immigration consequences of his plea was to promote fairness. (Pen. Code, § 1016.5, subd. (d).) A defendant who seeks to set aside his plea must show prejudice, namely, that but for the failure to advise, he would not have entered the guilty plea. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200, 209-210.) Substantial, not literal, compliance with Penal Code section 1016.5 is sufficient. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 174.) An advisement contained in the change of plea form utilized by the trial judge in accepting the plea cures any defect respecting an oral advisement because a court may rely upon a defendant’s validly executed waiver form as a proper substitute for a personal admonishment. (People v. Gutierrez, supra, at pp. 174-175.)
In Gutierrez, the defendant argued that he hastily signed the change of plea form, did not read the form or understand it. (People v. Gutierrez, supra, 106 Cal.App.4th at p. 175.) In affirming the denial of the motion to vacate, the reviewing court observed the trial court disbelieved defendant’s statement in his declaration that his understanding was different than what he said in court at the time he changed his plea, and defendant did not contradict his statement to the court that he read, signed, initialed and understood the form. (Ibid.)
Here, defendant argues that because the interpreter did not translate word for word, he was not properly admonished of the immigration consequences. As we have explained, however, the evidence before the trial court showed change of plea form was explained to the defendant, although it might not have been translated word for word. The change of plea form included the advisement of the immigration consequences, and the numbered paragraph containing the advisement in the statutory language was initialed by the defendant. In open court, the defendant was advised that by signing the form, he was indicating he understood all of his legal and constitutional rights and that he was willing to give them up in order to enter into the plea agreement. The defendant acknowledged the truth of that statement. The defendant was asked if he needed more time with his attorney and the defendant said, “No.”
The change of plea form cures any oral lack of advisement by the trial court. (People v. Gutierrez, supra, 106 Cal.App.4th at pp. 174-175.) Because Penal Code section 1016.5 does not require literal compliance, counsel’s explanation of the immigration consequences, as written in the change of plea form, and acknowledged by defendant’s initials on the form, satisfies the requirements of Penal Code section 1016.5.
There was no abuse of discretion in denying the motion.
3. Disposition
The judgment is affirmed.
We concur: Ramirez P. J, McKinster J.