Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. LA040244, Jessica Perrin Silvers, Judge. Appeal dismissed.
Law Office of Antonio M. Zaldana, Antonio M. Zaldana and Milad Sadr for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
In this case, defendant Carlos Humberto Melendez filed a petition for writ of error coram nobis to vacate his conviction of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) on grounds of mistake of fact and ineffective assistance of counsel. Defendant argued his attorneys affirmatively misadvised him there would be no adverse immigration consequences of his negotiated plea. Crimes of domestic violence, misdemeanors as well as felonies, constitute offenses of moral turpitude under federal immigration law, triggering deportation or removal. (See 8 U.S.C. § 1227(a)(2)(E)(i).) The trial court denied defendant’s petition and his subsequent motion to reconsider the petition. On appeal, defendant contends he was entitled to coram nobis relief. Because the petition fails to state a prima facie case, we dismiss the appeal.
Defendant is also known as Carlos Marroquin.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
A. Plea and Sentencing Hearings
Defendant is a citizen of Guatemala, who apparently unlawfully entered the United States and has remained here since 1989 with his wife and daughter. Following an altercation involving his wife, defendant was charged by felony complaint in 2002 with three counts of making a criminal threat (§ 422; counts 1, 2, and 4) and one count of inflicting corporal injury on a spouse (count 3).
On May 2, 2002, defendant negotiated a no contest plea to count 3, a felony. According to the terms of the plea agreement, imposition of sentence was to be suspended and defendant placed on five years’ formal probation on condition he serve 364 days in county jail, with credit for time served. The prosecutor agreed the remaining counts would be dismissed.
Defendant was assisted at the plea hearing by attorney Craig S. Robinson and a Spanish language interpreter. At the time he entered his plea, defendant was advised of his constitutional rights and the nature and consequences of his plea. During the proceedings, the trial court told defendant, “If there’s anything that you don’t understand, just stop me and speak to your attorney until you do understand, all right?” Defendant answered, “Yes.” The court then advised defendant, “If you are not a citizen of the United States, this conviction could result in your being deported, excluded from admission to the United States and denied naturalization rights under the laws of the United States.” Thereafter, defendant informed the trial court he was entering his negotiated plea because it was in his best interest to do so. The court found defendant had knowingly, intelligently, and voluntarily waived his constitutional rights, his plea was knowingly, intelligently, and voluntarily entered, and there was a factual basis for the plea. Attorney Robinson joined in the plea and stipulated to a factual basis.
On May 16, 2002, defendant was sentenced in accordance with terms of the negotiated plea. Defendant did not appeal from the judgment.
B. Subsequent Proceedings
On June 4, 2002, the Immigration and Naturalization Service (INS) charged defendant with being subject to removal or deportation for illegal entry into the United States. In 2003, defendant retained new counsel, Herbert Weiss, “who advised me that further changes to my conviction were necessary for immigration purposes.” In 2004, defendant’s probation period was purportedly reduced from five to three years. In 2005, his felony conviction was apparently reduced to a misdemeanor under section 17, subdivision (b)(5). In addition, the conviction was apparently set aside, a plea of not guilty was entered, and the case was dismissed under section 1203.4. Defendant anticipated this “expungement” would result in cancellation of removal, thereby allowing him to apply for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act or as a lawful permanent resident.
In March 2003, the Department of Justice transferred functions of the INS to the Department of Homeland Security.
The sparse record presented with defendant’s appeal contains no documentation showing defendant’s probation period was modified, his probation was terminated, his felony conviction was reduced to a misdemeanor under section 17, subdivision (b)(5), or his no contest plea was withdrawn and the misdemeanor charge dismissed under section 1203.4. However, the People do not dispute defendant’s representations on these points; and we, therefore, accept them as true. Because a dismissal under section 1203.4 does not eradicate the conviction for all purposes, however, the 2002 conviction remains subject to attack by a petition for writ of error coram nobis in an appropriate case. (See People v. Wiedersperg (1975) 44 Cal.App.3d 550, 554.)
On January 22, 2007, defendant was ordered deported from the United States. He then retained attorney Antonio M. Zaldana, who is also one of his appellate counsel, and filed an appeal with the Board of Immigration from the order of the immigration judge.
C. Petition for Writ of Error Coram Nobis
On September 7, 2007, defendant filed a petition for writ of error coram nobis, alleging he had been ordered deported from the United States because his 2002 domestic violence conviction was a crime of moral turpitude for immigration purposes that did not entitle him to alternative discretionary relief. According to defendant’s petition, violations of section 273.5, subdivision (a), and section 422 were crimes of moral turpitude under federal immigration law. Consequently, a conviction under either statute would generally have rendered defendant inadmissible to the United States. (See 8 U.S.C. § 1182(a)(2)(A)(i)(I).) However, unlike a section 273.5, subdivision (a), conviction, which, as a domestic violence offense, makes the offender ineligible for cancellation of removal, a section 422 conviction falls within the “petty offense” exception such that the offender is eligible for cancellation of removal on other discretionary grounds. (8 U.S.C. § 1182(a)(2)(A)(ii)(II).) Accordingly, defendant alleged that had he been aware his plea to violating section 422, rather than to violating section 273.5, would produce “different immigration results,” he would have requested more time to negotiate with the People in an effort to secure his future in the United States.
The petition was supported by defendant’s declaration he believed after consulting two attorneys that each of them took legal steps (under §§ 17, subdivision (b)(5), and 1203.4, respectively) to forestall any adverse immigration consequences arising from his plea. Defendant further declared had he “known that a no contest plea to a violation of section 422 and a sentence of 180 days were necessary to protect me from adverse immigration consequences, I would not have pled no contest to a violation of section 273.5, [subdivision] (a) but, at a minimum, would have insisted on more time to negotiate with the People.”
Defendant’s petition was also supported by the declaration of Attorney Robinson, essentially stating he knew defendant was concerned about the potential adverse immigration consequences of a conviction. Attorney Robinson therefore negotiated a plea which he believed would not have the deportation or removal consequences of an aggravated felony conviction.
At the October 18, 2007 hearing on his petition, defendant was represented by Attorney Zaldana. The judge was the same bench officer who had presided over the plea hearing. The court read and considered the petition and heard argument from counsel. At the conclusion of the hearing, the court denied the motion. Defendant filed a motion to reconsider the petition, in part because the superior court file, including the transcript of the plea hearing, was not available for the October 18, 2007 hearing. At the December 12, 2007 hearing, the same bench officer read and considered the transcript of the plea hearing, heard argument from counsel and denied the motion.
DISCUSSION
A petition for a writ of error coram nobis, the equivalent of a nonstatutory motion to vacate the judgment (People v. Dubon (2001) 90 Cal.App.4th 944, 950; People v. Gallardo (2000) 77 Cal.App.4th 971, 982), lies to give relief to a petitioner who “through fraud, coercion, or excusable mistake, was deprived of a fair trial on the merits.” (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The denial of a defendant’s request for coram nobis relief is reviewed for an abuse of discretion. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) However, denial of a petition for writ of error coram nobis is not appealable unless the petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [“[i]n an appeal from a trial court’s denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal”]; see Dubon, supra, at p. 950; Gallardo, supra, at p. 982.)
“The writ of coram nobis is granted only when three requirements are met. (1) Petitioner 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 which if presented would have prevented the rendition of the judgment.’ [Citations.] (2) Petitioner must also show that the ‘newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner ‘must show 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.)
Defendant has failed to raise any claims properly cognizable in a petition for writ of error coram nobis. A writ of error coram nobis will not issue to correct purported errors of law. (People v. Reid (1924) 195 Cal. 249, 258 overruled on other grounds in People v. Hutchinson (1969) 71 Cal.2d 342, 347-348; accord, People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) That defendant was unaware the conviction for inflicting corporal injury on his spouse, even when reduced to a misdemeanor, would subject him to deportation or removal under federal immigration law is not a mistake of fact, but one of law. (See McElwee, at p. 1352 [defendant’s belief he would be paroled after serving 15 years in state prison was a mistake of law not fact].) As a mistake of law purportedly attributable to his defense counsel, it cannot be remedied by a petition for writ of error coram nobis. (People v. Miranda (2004) 123 Cal.App.4th 1124, 1132, fn. 6 [“[C]oram nobis does not lie for a claim of ineffective assistance of counsel”]; People v. Gallardo, supra, 77 Cal.App.4th at p. 987 [“claim that the defendant was deprived of effective representation of counsel is not an appropriate basis for relief by writ of coram nobis and must be raised on appeal or by petition for writ of habeas corpus instead”]; see People v. Ibanez (1999) 76 Cal.App.4th 537, 547 [defendant’s ignorance of potential civil commitment consequences of his plea under the Sexually Violent Predators Act because he was not so advised by the court or his counsel was an error of law and thus not within the scope of coram nobis relief]; see People v. Gutierrez (2003) 106 Cal.App.4th 169, 176 [claim was, at best, a disguised claim of ineffective assistance of counsel].) The appropriate procedure to raise a legal error is direct appeal or habeas corpus relief. (People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.)
The questions (a) whether a writ of error coram nobis is available to challenge a California conviction on which the sentence has fully expired if the conviction is currently the basis of federal immigration proceedings and the petitioner alleges trial counsel failed to properly advise him as to the immigration consequences of the conviction and he did not in fact know what those consequences would be, and (b) whether the trial court has the power to grant a nonstatutory motion to vacate the judgment for ineffective assistance of counsel in those circumstances, are currently pending before the Supreme Court. (People v. Kim (2007) 150 Cal.App.4th 1158, review granted July 25, 2007, S153183.)
Defendant’s reliance on People v. Wiedersperg, supra, 44 Cal.App.3d 550 is misplaced. In Wiedersperg, the trial court ruled it did not have jurisdiction to consider a coram nobis petition because the underlying judgment had been dismissed under section 1203.4. (Id. at p. 553.) The petition alleged the defendant’s lawyer was ignorant of the defendant’s status as an alien. (Id. at pp. 552-553.) The Court of Appeal reversed, concluding counsel’s ignorance of his client’s immigration status was an unknown fact that could serve as the basis for coram nobis relief. (Id. at pp. 554-555.) The holding in Wiedersperg is “an extremely limited one.” (People v. Soriano, supra, 194 Cal.App.3d at p. 1475.) Wiedersperg only stands for the proposition the trial court had “jurisdiction to consider the petition,” and the defendant “had stated facts which, if they could be proven, would permit issuance of the writ in the discretion of the trial court.” (Ibid.; People v. Ibanez, supra, 76 Cal.App.4th at p. 547.)
The trial court in the instant case did not base its denial of defendant’s petition on a lack of jurisdiction. Instead, the trial court concluded, assuming the facts asserted in defendant’s petition were true, defendant failed nonetheless to meet the requirements entitling him to coram nobis relief. Wiedersperg provides no support for defendant’s petition.
Because the claims asserted by defendant are not properly raised by a petition for writ of error coram nobis, the appeal must be dismissed. However, defendant is not precluded from seeking further coram nobis relief in the superior court following the pending California Supreme Court decision on this issue.
DISPOSITION
The appeal is dismissed.
We concur: PERLUSS, P. J., ZELON, J.