IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
November 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CARLOS ALBERTO ECHEVERIA RODRIGUEZ, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Margulies, J.
P. v. Rodriguez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.)
Furthermore, "[a]s a general proposition, review of constitutional issues is outside the ambit of coram nobis." (Prickett, The Writ of Error Coram Nobis in California (1990) 30 Santa Clara L.Rev. 1, 25.) Thus, "lack of counsel or effective aid of counsel are not properly raised by a petition for a writ of error coram nobis." (People v. Sharp, supra, 157 Cal.App.2d at p. 208; see also People v. Howard (1965) 62 Cal.2d 237, 238 [petition that included ineffective assistance claim did not meet requirements for coram nobis].) In People v. Soriano (1987) 194 Cal.App.3d 1470, 1477, the court held that a claim of ineffective assistance of counsel based on improper advice regarding the immigration consequences of a plea could not be asserted in a petition for a writ of error coram nobis. "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." (Ibid.)
Here, defendant has failed to "meet the first prong" of the three requirements for coram nobis relief, "the showing of a previously unknown fact." (People v. Ibanez, supra, 76 Cal.App.4th at p. 549.) He has claimed that the court and his attorney failed to adequately advise him of the immigration consequences of his plea. The asserted lack of proper admonitions by counsel does not constitute any new evidence or fact that was not presented to the court. Rather, defendant has presented as the basis for his petition a mistake or misrepresentation of law attributed to his trial counsel. (See People v. Ibanez, at p. 549.) That defendant believed there were no immigration consequences is not a mistake of fact, but one of law. Because defendant's claim of ineffective assistance of counsel relates more to a mistake of law than fact, he has failed to state a case for relief on coram nobis. (People v. Kim (2009) 45 Cal.4th 1078, 1104.)
In addition, contrary to defendant's allegations in his petition, the plea form clearly and unambiguously advised him of the immigration consequences of his plea. Moreover, in response to court questioning defendant indicated he had carefully read, initialed, and signed the plea form and had discussed it with his attorney.
Accordingly, without a prima facie showing of merit in the coram nobis petition, we affirm the judgment.
We concur: Marchiano, P.J. Banke, J.