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November 30, 2010


The opinion of the court was delivered by: Margulies, J.

P. v. Rodriguez CA1/1


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal was filed following the denial of defendant's petition for writ of error coram nobis. Defendant's counsel has asked this court, pursuant to People v. Wende (1979) 25 Cal.3d 436, to conduct an independent review of the record to determine whether it contains any arguable issues. Counsel has notified defendant he can file a supplemental brief with the court. No supplemental brief has been received. Upon review of the record, we conclude no arguable issues are presented for review and affirm the judgment.


An amended information was filed on March 8, 2004, charging defendant with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count one), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count two), possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count three), felon in possession of a firearm (Pen. Code,*fn2 § 12021, subd. (a)(1); count four), possession of ammunition (§ 12316, subd. (b)(1); count five), and carrying a switchblade knife (§ 653k; count six). The information alleged defendant was personally armed with a firearm during the commission of the charged offense (§ 12022, subd. (c)), and was armed with a firearm within the meaning of section 12022, subdivision (a)(1). As to counts one, two, three, four and five, it was further alleged defendant suffered a prior strike conviction for first degree burglary in 1996.

On March 8, 2004, defendant entered a no contest plea to count two, and no contest admissions to being personally armed with a firearm pursuant to section 12022, subdivision (c), and having suffered a prior strike conviction. A plea waiver form was completed and signed by defendant advising him of his constitutional rights, the consequences of his plea, and the agreed upon sentence of six years eight months. Before he entered his plea, the court asked defendant if he had carefully read, initialed, and signed the plea form. Defendant replied he had done so and understood all of the information in the plea form. He also stated he had discussed the form with his attorney. After the court explained to defendant that the plea form set forth his legal and constitutional rights, defendant stated he wished to waive each of the rights. The court went on to specifically explain the rights defendant was waiving, the terms of the plea agreement, as well as mandatory drug registration requirements, parole consequences, fines, and the doubling of the term under the "Three Strikes" law, but did not advise him of the potential immigration consequences of his plea. The plea form, however, did advise defendant as follows: "I understand, that if I am not a United States citizen, a plea of guilty or no contest could result in my deportation, exclusion from admission to this country, or denial of naturalization."

Defendant requested and was sentenced on the same day as his plea. Our court affirmed his conviction and sentence on September 13, 2005. (People v. Rodriguez (Sept. 13, 2005, A106218) [nonpub. opn.].)

Over four years later, on January 26, 2010, defendant filed a "Notice of Motion to Vacate Writ of Error Coram Nobis," alleging under section 1016.5,*fn3 that his counsel and the trial court had failed to properly advise him of the immigration consequences of his plea. He also claimed the written plea was unclear and contained a defective advisement. At the hearing on the writ, counsel argued there had been a failure to adequately advise defendant of the immigration consequences of his plea, and consequently he was currently in the custody of the immigration authorities. According to defendant's declaration in support of the writ, if he had been properly advised of the immigration consequences of his plea, he would not have "signed [the] paperwork." The trial court denied defendant's writ finding the written advisement on the plea form was "sufficient."

Defendant filed a timely appeal challenging the denial of his writ of coram nobis.


"In this state coram nobis is a limited remedy of narrow scope which is available (where no other remedy exists) to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court." (People v. Sharp (1958) 157 Cal.App.2d 205, 207.) "A writ of error coram nobis may be granted when three requirements are met: (1) the 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.)

"It is well established in California that, despite the lack of statutory authority for such a proceeding, a defendant, after judgment, may seek to enforce the terms of a plea bargain by bringing a motion to vacate the judgment or a petition in the nature of a writ of coram nobis." (People v. Collins (1996) 45 Cal.App.4th 849, 863.) The writ of error coram nobis is also "an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion." (People v. Chaklader (1994) 24 Cal.App.4th 407, 409.) "The writ of error coram nobis generally lies to give relief where the petitioner, 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.)

However, the California Supreme Court has confirmed "the narrow scope of a motion to vacate a judgment in the nature of a petition for coram nobis." (Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 799, citing People v. Adamson (1949) 34 Cal.2d 320, 326.) It is the equivalent to a motion to vacate the judgment, and is used "to correct only errors of fact as distinguished from errors of law." (People v. Ibanez (1999) 76 Cal.App.4th 537, 545.) " ' "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 ...

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