Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C9749863
McAdams, J.
Defendant Shabvani appeals from the trial court’s denial of his petition for writ of error coram nobis after a hearing. Defendant sought to vacate his 1997 guilty plea to felony possession of a controlled substance (Health & Saf. Code § 11350, subd. (a)) because he now faces the adverse immigration consequences of his plea. Defendant argues that he is entitled to relief on two grounds: (1) the attorney who represented him on the 1997 plea had a conflict of interest; and (2) the trial judge who took his plea failed to advise him properly of the immigration consequence of his plea. We affirm.
HISTORICAL AND PROCEDURAL FACTS
On August 1, 1997, defendant was charged in count 2 of a two-count complaint with felony possession of cocaine. Vahid Akbarzadeh was charged with the same offense in count 1. On October 9, 1997, defendant pleaded guilty to count 2 and count 1 against Akbarzadeh was dismissed. Defendant was diverted into a deferred entry of judgment program on certain terms and conditions, including a county jail sentence.
On November 3, 1998, a petition to terminate the diversion program was filed. The petition alleged that defendant had failed to complete his assigned treatment program, failed to submit to drug testing, failed to attend a support group and failed to respond to several warning letters. On March 9, 1999, defendant pleaded guilty to being under the influence of a narcotic, a misdemeanor. (Health & Saf. Code § 11550, subd. (a).) The court also terminated diversion and entered judgment on the felony case. Defendant was placed on formal probation on various terms and conditions in both cases.
On November 2, 2006, defendant filed a combined motion to vacate his felony conviction pursuant to Penal Code section 1016.5 and petition for writ of error coram nobis. In his declaration in support of the motion and petition, defendant alleges that he is a citizen of India and has been a lawful permanent resident of the United States since 1986. He was a passenger in a car driven by Akbarzadeh when the car was detained for speeding. Drugs were found on the floor of the vehicle. He was charged with illegal possession of a controlled substance.
He and Akbarzadeh were represented by the same attorney and he paid the legal fees for both of them. The attorney never explained to him “the concept of conflict of interest.” Defendant told the attorney that he was not guilty; the drugs were not his and the car was not his. The attorney told him not to worry because he qualified for deferred entry of judgment and the case would eventually be dismissed. Because of his understanding that the case would be dismissed, defendant “was not worried about the case having any effect on my lawful permanent resident status.”
On October 9, 1997, defendant pleaded guilty to the charge “based upon the assurances from my lawyer that the case would be dismissed.” However, the judge taking the plea informed defendant of the consequences of the plea, but also told him that “these consequences would apply only if I did not successfully complete the deferred entry of judgment program.” Later in the same proceedings the judge informed defendant that “if I was not a citizen, the plea could result in deportation, exclusion from the U.S. or denial of naturalization.” Since his lawyer told him “only that the case would be dismissed,” and the judge told him the consequences would not apply unless he failed the program, defendant “did not think that this plea of guilty was going to cause me any immigration problems.”
Defendant admits in his declaration that he failed to successfully complete the deferred entry of judgment program and therefore was “sentenced to three years probation with ninety days concurrent to a new misdemeanor case to which I plead [sic] guilty that same day.”
In April 2006 defendant went to see an immigration lawyer about renewing his green card. She informed him that “any drug conviction other than possession of 30 grams or less of marijuana made any alien removable and excludable and that a deferred entry of judgment was considered a conviction under federal immigration law as of September 30, 1996, when the immigration laws were changed.” This was the first time he realized that he had been given incorrect advice about the immigration consequences of his 1997 plea insofar as he had been led to believe that “there was no conviction unless I failed the program.”
Defendant avers: “Since I had a strong defense, as the drugs were not mine and the car was not mine, I would not have plead [sic] guilty if I knew that in fact I was becoming removable and excludable immediately [upon entering the plea]. [¶] In the absence of any advice from my lawyer, I relied upon the statement by the judge that the consequences of a conviction would not occur unless I failed to successfully complete deferred entry of judgment. I would not have plead [sic] guilty if I knew the actual result was to make me removable immediately. [¶] I am now unable to renew my green card because of these convictions as I would be placed into removal proceedings if I did so, and if I applied for naturalization, the same result appears likely.”
A transcript of the plea taken October 9, 1997, shows that the trial court did inform defendant that the consequences of his plea, including the immigration consequences, “will apply if you fail the program in any way.” Defendant acknowledged that he understood. Defendant was also asked if he “had a sufficient opportunity to discuss your case with your attorney, specifically the charges against you, the possible defenses available, the constitutional rights and the consequences of your decision to enter a plea of guilty.” He said “yes, sir.” He was asked if any other promises or conditions had been made to him in exchange for his plea, besides the promises stated in court, and if anyone had threatened, pressured or coerced him or anyone close to him, in order to get him to change his plea. Defendant said “no.” Finally, defendant was asked: “There is a co-defendant in this case; are you entering your plea of guilty solely for your own benefit and not for the benefit of your co-defendant?” Defendant said, “Yes, sir.” The attorneys stipulated to a factual basis for the plea.
A hearing was held on defendant’s motion to vacate on November 21, 2006. The prosecution called the attorney hired by defendant to represent him in 1997 on the felony drug charge and again in 1999 on both the felony and misdemeanor drug charges. The attorney testified that he had been practicing law since 1980 and was a certified criminal law specialist. The attorney further testified that to the best of his recollection, defendant did not tell him that the drugs did not belong to him, and defendant did not tell the attorney that he was innocent. The attorney knew that defendant’s co-defendant had told the police that the drugs belonged to defendant. Although the attorney had no specific recollection of the pre-plea advice he gave to Mr. Shabvani regarding the immigration consequences of pleading guilty, as of 1997 it was his practice to warn his clients that a guilty plea could lead to deportation, denial of naturalization and refusal of admission. Likewise, he did not specifically recall his conversations with defendant in 1999, but he did recall speaking with him before the plea in 1999 and, as in 1997, it would have been his practice to advise defendant of the immigration consequences of his plea agreement. The superior court denied defendant’s combined motion/petition without comment.
DISCUSSION
Trial Court Failure to Advise of Immigration Consequences
Defendant argues that the trial court should have granted his motion to vacate his plea because that the trial judge who took his 1997 plea did not properly advise him of the immigration consequences of his plea, as required by Penal Code section 1016.5. “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.” (People v. Totari (2003) 28 Cal.4th 876, 884.) In the context of a section 1016.5 motion, prejudice means that “ ‘the sentencing court must determine whether … it is “reasonably probable” the defendant would not have pleaded guilty if properly advised.’ ” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210 (Zamudio).) In addition, the defendant must show reasonable diligence in bringing a motion to vacate his conviction. (People v. Totari, at pp. 1206-1207.) We review the trial court’s ruling on the motion to vacate for abuse of discretion. (Zamudio, at p. 192; § 1016.5, subd. (c).)
Penal Code section 1016.5 provides:
The trial court properly advised defendant of the immigration consequences of his plea. However, when the trial court informed defendant that none of the consequences of his plea would obtain in his case unless he failed the program, the trial court effectively vitiated those proper advisements. This was error.
Nevertheless, we conclude defendant was not entitled to relief on this ground because the record supports the trial court’s implied finding that defendant was not prejudiced by the court’s misadvisement. In this case, prejudice means that it was reasonably probable defendant would not have pleaded guilty had the court advised him that he was subject to adverse immigration consequences because of his plea, notwithstanding his successful completion of the deferred entry of judgment program. Although defendant avers that he would not have pleaded guilty had he been properly advised, the trial court was not required to accept that averment at face value. In the related context of immigration-based ineffective assistance of counsel claims, our Supreme Court has warned that a defendant’s “assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’ ” (In re Resendiz (2001) 25 Cal.4th 230, 253; see also In re Alvernaz (1992) 2 Cal.4th 924, 938.) We think that advice is equally sound when a court is called upon to evaluate a defendant’s claim of prejudice under section 1016.5. (But see People v. Zaidi (2007) 147 Cal.App.4th 1470, 1490 [Resendiz and Alvernaz “concern claims of ineffective assistance of defense counsel based on incompetent advice from counsel prior to entering a plea, not a claim of insufficient advisement by the court.”].)
In our view, the trial court was entitled to conclude on the record before it that the objective evidence did not corroborate defendant’s declaration. First, defendant’s claim of innocence was not corroborated by his trial counsel, nor was his claim that counsel had led him to believe that his guilty plea would have no immigration consequences. On the contrary, counsel testified that to the best of his recollection, defendant did not tell him that the drugs did not belong to him, and defendant did not tell him that he was innocent. Furthermore, although counsel had no specific recollection of the pre-plea advice he gave to Mr. Shabvani regarding the immigration consequences of pleading guilty, as of 1997 it was his practice to warn his clients that a guilty plea could lead to deportation, denial of naturalization and refusal of admission.
Second, had defendant asserted his right to trial, the objective circumstances did not suggest that defendant had a strong defense. On the contrary, the record suggests that his co-defendant was in a position to testify against him. If convicted after a trial, defendant faced the possibility of a state prison sentence. Against this backdrop, the chance to avoid state prison and win a dismissal of the charge if he pleaded guilty and successfully complied with the terms of the deferred judgment program appears objectively very advantageous. Moreover, the fact that defendant later pleaded guilty to a violation of Health and Safety Code section 11550, even though he was warned that he could face adverse immigration consequences as the result of the plea, suggests that the potential adverse immigration consequence of pleading guilty was not a determinative consideration at that time or earlier. Finally, even if defendant was misadvised in 1997 that the adverse immigration consequences of his plea would attach only if he failed the deferred judgment program, when he did fail the program and judgment was entered, defendant made no effort to vacate his 1997 plea. This suggests that defendant was not so concerned with the immigration consequences of his conviction that he would have refused to plead guilty if he had known they attached at the moment of his plea. The trial court did not abuse its discretion in denying defendant’s motion to vacate pursuant to Penal Code section 1016.5.
Ineffective Assistance of “Conflicted” Counsel
Defendant contends the trial court abused its discretion in denying his petition for writ of error coram nobis on the ground that defense counsel had a conflict of interest in that he jointly represented both defendant and co-defendant, that the fact of this conflict was unknown to the trial court at the time it took the plea, and that if the conflict had been known to the court at that time, the court would not have rendered judgment.
A writ of error coram nobis is a type of motion to vacate the judgment, and “[f]or better or worse, the terms ... are often used interchangeably and the two procedures are similar in scope and effect.” (People v. Gallardo (2000)77 Cal.App.4th 971, 982.) A writ of error coram nobis is generally used to bring factual errors or omissions—not legal errors—to the court’s attention. “A writ of error coram nobis may be granted when three requirements are met: (1) petitioner has shown that some fact existed which, without fault of his own, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of judgment; (2) the petitioner has shown that the newly discovered evidence does not go to the merits of the issues tried; and (3) the petitioner has shown 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. Castaneda (1995) 37 Cal.App.4th 1612, 1618-1619; People v. Gallardo, at p. 987.) A claim of ineffective assistance of counsel in the pre-guilty plea advice given by counsel is “not an appropriate basis for relief by writ of coram nobis. [Citations.] The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by petition for a writ of habeas corpus.” (People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.)
Defendant attempts to bring his claim within the legitimate ambit of coram nobis, and outside the prohibition against bringing claims of ineffective assistance of counsel on writs of error coram nobis, by styling his claim as one of conflicted counsel, a “fact” unknown to the court that would have prevented the rendition of judgment. We reject defendant’s attempt to circumvent the rules governing coram nobis in this way, because a claim of conflicted counsel is, in essence, a claim of ineffective assistance of counsel.
“Multiple representation of criminal defendants is not per se violative of constitutional guarantees of effective assistance of counsel.” (People v. Mroczko (1983) 35 Cal.3d 86, 103, italics added.) “The standard for obtaining relief under the Sixth Amendment based upon a conflict of interest depends upon whether the defendant objected to the conflict at trial.” (People v. Clark (1993) 5 Cal.4th 950, 994.) “ ‘[A] defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected hislawyer’s performance.’ Citations. The Court in Cuyler v. Sullivan (1980) 446 U.S. 335, 348, made clear that such a defendant must ‘show that his counsel actively represented conflicting interests,’ and ‘the possibility of conflict is insufficient to impugn a criminal conviction.’ ” (People v. Easley (1988) 46 Cal.3d 712, 724.)
“As we explained in People v. Easley, supra, 46 Cal.3d at page 725, ‘[i]t is important to recognize that “adverse effect on counsel’s performance” under [Cuyler v.] Sullivan, supra, 446 U.S. at pages 348 and 350, is not the same as “prejudice” in the sense in which we often use that term. When, for example, we review a “traditional” claim of ineffective assistance of counsel (i.e., one involving asserted inadequate performance as opposed to “conflicted” performance), we require the defendant to show a reasonable probability that the result (i.e., the disposition) would have been different. [Citations.] ... As we suggested in Mroczko, supra, Sullivan requires an inquiry into whether the record shows that counsel “pulled his punches,” i.e., failed to represent defendant as vigorously as he might have had there been no conflict. [Citation.]’ [¶] Under our ‘somewhat more rigorous’ state standard, a showing that the alleged conflict prejudicially affected counsel’s representation of the defendant is also required.” (People v. Clark, supra, 5 Cal.4th at p. 995.)
From these authorities it is clear that a claim of conflicted counsel is a sub-species of ineffective assistance of counsel. The focus is on counsel’s performance. Here too, and regardless of how defendant styles his claim, the focus is on counsel’s performance. The gravamen of defendant’s complaint is that, because counsel was representing him and his co-defendant, he failed to adequately represent defendant, apparently by leading him to believe that no adverse immigration consequences would flow from his guilty plea to possession of a controlled substance. This is a claim of ineffective assistance of counsel, plain and simple, and it cannot be raised by way of coram nobis petition. The trial court properly denied defendant’s petition for writ of error coram nobis.
CONCLUSION
Defendant was not adequately advised of the consequences of his guilty plea by the trial judge who took his 1997 plea; however, the trial court below did not abuse its discretion in denying defendant’s Penal Code section 1016.5 motion, because the record supports the trial court’s implied findings of lack of prejudice or due diligence. The trial court properly denied defendant’s petition for writ of error coram nobis because his claim of conflicted counsel is a sub-species of ineffective assistance of counsel, which cannot be raised by way of coram nobis petition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.
“(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions 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) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. 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.
“(c) With respect to pleas accepted prior to January 1, 1978, it is not the intent of the Legislature that a court’s failure to provide the advisement required by subdivision (a) of Section 1016.5 should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid. Nothing in this section, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.
“(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 defendant’s counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction. It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.”