Filed 2/26/16 P. v. Benes CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062551
v. (Super.Ct.No. FMB700380)
JAN BENES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,
Judge. Affirmed.
Commonwealth Law Group and James A. Fraser, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J.
Beale, Parag Agrawal, and Christopher P. Beesley, Deputy Attorneys General, for
Plaintiff and Respondent.
1 Defendant and appellant Jan Benes pled guilty in 2007 to cultivating marijuana
(Health & Saf. Code, § 11358). Pursuant to the plea agreement, the remaining charge
was dismissed and defendant was placed on probation on various terms and conditions,
including serving 90 days in county jail on weekends. Defendant successfully completed
probation in 2010, his previous conviction was set aside, a plea of not guilty was entered,
and the case was dismissed pursuant to Penal Code1 sections 1203.4 and 1203.4a.
In 2014, defendant, a citizen of the Czech Republic, filed an unsuccessful motion
to set aside his conviction based on ineffective assistance of counsel (IAC) pursuant to
section 1016.5. Defendant appeals from the denial of the motion, arguing that (1) the
record is unclear as to whether the trial court at the time of his plea had adequately
advised him of his immigration consequences; (2) his prior counsel was ineffective in
advising him as to the immigration consequences; and (3) he established due diligence in
pursuing his claims. We find no error and affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND2
In August 2007, defendant was found in possession of approximately 155
marijuana plants, a tray of harvested marijuana buds, and equipment used in the
cultivation of marijuana. Defendant admitted to cultivating marijuana.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual background is taken from the probation officer’s report.
2 On August 16, 2007, a complaint was filed charging defendant with cultivation of
marijuana (Health & Saf. Code, § 11358) and possession of marijuana for sale (Health &
Saf. Code, § 11359).
On October 3, 2007, defendant entered into a negotiated plea agreement whereby
he pled guilty to cultivating marijuana. In return, the remaining charge was dismissed
and defendant was placed on probation on various terms and conditions for a period of
three years.
On April 19, 2010, defendant filed a motion for early termination of probation and
dismissal of the complaint pursuant to sections 1203.4 and 1203.4a. The motion was
granted on May 21, 2010, at which time, the court terminated defendant’s probation, set
aside the previous conviction, entered a plea of not guilty, and dismissed the case.
On January 7, 2013, defendant received notice from the U.S. Department of
Homeland Security that removal proceedings had been issued against him in immigration
court based on his 2007 cultivation of marijuana conviction.
Defendant was eventually detained by Immigration and Naturalization Services.
And, on June 13, 2013, in an attempt to fight the removal proceedings, defendant, in pro.
per., filed a motion to vacate his conviction with supporting exhibits based on IAC. The
court denied the motion for lack of jurisdiction on June 17, 2013.
On August 21, 2013, defendant, in pro. per., filed a second motion to vacate his
conviction. On September 23, 2013, the trial court found the matter had already been
reviewed on May 21, 2010.
3 On October 8, 2013, defendant, in pro. per., filed a third motion to vacate his
conviction, but withdrew the motion prior to the October 23, 2013 hearing date.
On July 2, 2014, defendant, represented by counsel, filed a fourth motion for
postconviction relief to vacate his plea and/or to modify his sentence with supporting
declarations and exhibits.
On August 5, 2014, the People filed an opposition with supporting exhibits. The
People argued that defendant failed to exercise due diligence and that defendant failed to
meet his section 1016.5 claim because the record established defendant was advised of
and understood his immigration consequences.
A hearing on defendant’s motion was held on October 23, 2014. At that time,
defendant’s counsel argued that defendant did not “fully understand” the nature of his
immigration consequences and that the trial court had failed to appropriately advise
defendant of his immigration consequences. Following a recitation of the record, the trial
court denied defendant’s motion to vacate his conviction pursuant to section 1016.5. The
court found defendant’s plea agreement, the reporter’s transcript, and the court’s minute
order established defendant was advised of his immigration consequences and that
defendant understood his rights and had time to discuss his rights with his lawyer. The
court also denied defendant’s nonstatutory motion to vacate or petition for writ of error
coram nobis based on IAC, because defendant failed to show reasonable due diligence.
4 On December 17, 2014, defendant filed a notice of appeal from the denial of his
fourth motion to vacate his conviction, and a request for certificate of probable cause.
Defendant’s request for a certificate of probable cause was granted.
II
DISCUSSION
A. Advisement of Immigration Consequences
Defendant contends that the trial court abused its discretion when it denied his
motion to vacate his conviction and withdraw his plea under section 1016.5 because he
was not adequately advised of the immigration consequences of the plea.
“Before accepting a plea of guilty or no contest, a trial court is statutorily required
to advise a defendant that if the defendant is not a citizen of this country, the plea could
result in deportation, exclusion from the United States, or denial of naturalization. (Pen.
Code, § 1016.5, subd. (a).)” (People v. Arriaga (2014) 58 Cal.4th 950, 955 (Arriaga).)
If the court fails to give the admonition required by subdivision (a), upon defendant’s
motion, it must vacate the judgment and allow the defendant to withdraw his or her plea
and enter a plea of not guilty if the defendant can show that the conviction or offense to
which he or she pleaded guilty or nolo contendere might result in his or her deportation,
exclusion from admission to the United States, or in denial of naturalization. (§ 1016.5,
subd. (b).)
“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
5 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 (2002) 28 Cal.4th 876, 884; People v. Superior Court (Zamudio) (2000) 23 Cal.4th
183, 192 (Zamudio).) The purpose of section 1016.5 is to ensure that a defendant has
both actual knowledge of the possible adverse immigration consequences of a guilty or
no contest plea and a chance to make an intelligent choice whether to plead guilty or no
contest. (Zamudio, at pp. 193-194.)
A trial court’s denial of a motion to vacate under section 1016.5 is reviewed for
abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192.) The court deciding whether
the defendant has made a sufficient showing under section 1016.5 “is the trier of fact
and . . . the judge of the credibility of the witnesses or affiants. Consequently, it must
resolve conflicting factual questions and draw the resulting inferences. [Citation.]”
(People v. Quesada (1991) 230 Cal.App.3d 525, 533 (Quesada), superseded by statute on
other grounds as stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206-1207,
fn. 5.) To the extent the court’s denial is based on statutory interpretation, it is an issue of
law which we review de novo. (People v. Akhile (2008) 167 Cal.App.4th 558, 562-563
(Akhile).)
At the October 3, 2007 plea hearing, the reporter’s transcript is clear that the court
itself never expressly advised defendant of his immigration consequences as required by
section 1016.5. Rather, the court relied on the contents of the plea form to ensure
6 defendant received the relevant advisements. At the plea hearing, the following colloquy
occurred between defendant and the court:
“THE COURT: [Defendant], I am showing you a three-page document that has
the initials on the right-hand side ‘JB.’
“Are those your initials?
“THE DEFENDANT: Yes.
“THE COURT: And on the last page right here is a signature. Is this your
signature?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: Did you place your initials in the boxes and sign the third page
only after you assured yourself you understand everything on this document?
“THE DEFENDANT: Yes, I did.
“THE COURT: Did you have enough time to review your rights, the evidence
against you and any possible defenses you might have with your lawyer?
“THE COURT: Do you need any more time or have any questions?
“THE DEFENDANT: No. [¶] . . . [¶]
“THE COURT: Was anything else promised to you that is not on this [plea]
form?
“THE DEFENDANT: No.
7 “THE COURT: You understand that all of the rights that are contained on this
three-page form are rights that you are waiving and giving up so as to get the benefit of
this bargain?
“THE DEFENDANT: Yes, I do.”
Following defendant’s plea, the court found “the defendant’s plea and waiver was
done both orally and in writing; that he understands the nature and consequences of plea
as well as each of his constitutional rights; further, that his plea and waiver was knowing,
intelligent, free and voluntary; finally, that a factual basis exists for the plea.”
The reporter’s transcript of the plea hearing is clear that the court did not provide
its own, separate admonition that defendant would be deported as a result of the plea. It
was simply presumed that the appropriate admonitions and advisements had been given
by defendant’s trial counsel.
In Arriaga, supra, 58 Cal.4th at page 963, our Supreme Court held that where the
record does not reflect whether the court gave the section 1016.5 advisements at the time
of the plea, the burden shifts to the People. The “presumption of nonadvisement
established by section 1016.5’s subdivision (b) is controlling unless and until the
prosecution rebuts it by proving it is more likely than not that the defendant was properly
advised.” (Arriaga, at p. 963.) The question then becomes whether “the prosecution”
carried “its burden of proving that defendant received the proper advisements.” (Ibid.)
The People attempted to meet their burden by relying on defendant’s signed guilty
plea form under penalty of perjury with the advice of his counsel, defendant’s statements
8 at the plea hearing, and the minute order of the plea hearing. In relevant part, defendant
initialed the following immigration warning: “14. I understand that if I am not a citizen
of the United States, deportation, exclusion from admission to the United States, or denial
of naturalization will result from a conviction of the offense(s) to which I plead
guilty/nolo contendere (no contest).” Defendant’s counsel also signed the plea form,
under penalty of perjury, indicating that she “personally read and explained the contents”
of the plea form to defendant. As indicated above, during the plea hearing, defendant
indicated that he understood and personally initialed the advisements on the plea form
and that he discussed them with his attorney. Defendant’s counsel joined in the plea.
The minute order of the October 3, 2007 plea hearing notes, “The Court, after
readvisement of each of these rights, finds that the Defendant understands the charge(s),
the possible penalties, right against self-incrimination, to confront and cross examine
witnesses, to a public and speedy trial, to Jury trial, to have an attorney present at all
stages of the proceedings and to the Public Defender if indigent and to the compulsory
process to the court to subpoena witnesses.”
An attorney’s private consultation with his or her client about immigration
consequences is to be encouraged. But the immigration advisements required by
section 1016.5 involve the court proceedings. (Akhile, supra, 167 Cal.App.4th at p. 564.)
Those immigration advisements “must occur within the context of the taking of the plea.”
(Ibid.) In Akhile, the trial court gave the section 1016.5 advisements at the arraignment.
But the Court of Appeal held that providing the section 1016.5 advisements at the
9 arraignment is not a substitute for the failure to give them when defendant pled guilty. In
this case, there is no evidence the trial court gave a section 1016.5 advisement.
The People contend “there is no legislative or case law requirement that the
defendant be verbally warned” and that “the required warning was properly provided to
[defendant] in compliance with section 1016.5 in written form and [defendant]
acknowledged that he understood all the conditions on the written form.” In People v.
Ramirez (1999) 71 Cal.App.4th 519 (Ramirez), the court concluded section 1016.5 does
not require a trial court to orally advise a defendant of the possible immigration
consequences of a guilty plea; the written change of plea form signed by the defendant
satisfied the section 1016.5 requirements. (Ramirez, at pp. 521-523.) “[T]here is no
language [in section 1016.5] which states the advisements must be verbal, only that they
must appear on the record and must be given by the court.” (Id. at p. 521.)
Citing In re Ibarra (1983) 34 Cal.3d 277 (Ibarra), the Ramirez court noted that the
“Supreme Court has held a validly executed waiver form is a proper substitute for verbal
admonishment by the trial court.” (Ramirez, supra, 71 Cal.App.4th at p. 521.) Although
the court in Ibarra expressly addressed the constitutionally mandated advisements
required under Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969)
1 Cal.3d 122 (Tahl), Ramirez concluded its reasoning was equally applicable to
legislatively mandated advisements. (Ramirez, at pp. 521-522.) Ramirez also stated, “As
the Third Appellate District noted in People v. Quesada[, supra,] 230 Cal.App.3d 525,
the legislative purpose of section 1016.5 is to ensure a defendant is advised of the
10 immigration consequences of his plea and given an opportunity to consider them. So
long as the advisements are given, the language of the advisements appears in the record
for appellate consideration of their adequacy, and the trial court satisfies itself that the
defendant understood the advisements and had an opportunity to discuss the
consequences with counsel, the legislative purpose of section 1016.5 is met. [Citation.]
We agree with the analysis in Quesada.” (Id. at p. 522.)
Because the record contained a copy of the change of plea form signed by the
defendant, which warned of all three possible immigration consequences, and showed
that the trial court asked the defendant whether he reviewed the form with his attorney
and understood it, the Ramirez court affirmed the trial court’s denial of the defendant’s
section 1016.5 motion. (Ramirez, supra, 71 Cal.App.4th at p. 523.)
According to Ramirez, neither the language nor the purpose of section 1016.5
requires a trial court to orally advise a defendant of the possible immigration
consequences before accepting a guilty plea. Rather, a written change of plea form
describing those possible immigration consequences may, if duly signed and understood
by the defendant after having an opportunity to review it and ask questions of his counsel,
satisfy the section 1016.5 requirements. As with the Boykin-Tahl rule discussed in
Ibarra, the underlying purpose of section 1016.5 is to ensure the defendant has actual
knowledge of the possible immigration consequences of a guilty plea and has had an
opportunity to make an intelligent choice to plead guilty. (Ibarra, supra, 34 Cal.3d at
p. 285; Ramirez, supra, 71 Cal.App.4th at p. 522; Quesada, supra, 230 Cal.App.3d at
11 pp. 535-536; People v. Gutierrez (2003) 106 Cal.App.4th 169, 175.) A ritual oral
recitation by a trial court of the possible immigration consequences of a guilty plea adds
little to a defendant’s actual knowledge of those consequences if the defendant has
previously read and understood the written form describing those possible consequences
and discussed the form’s advisements with his or her counsel. (Cf. Ibarra, at p. 286.)
Defendant argues that by “simply relying upon the plea form, the court cannot
correct any errors in advisement made by defense counsel.” However, defendant fails to
ignore that he signed a plea form containing a section 1016.5 advisement that mirrored
the statutory language and warned him of the three possible immigration consequences
enumerated in section 1016.5. Defendant initialed the plea form indicating that if he was
not a citizen of the United States, “deportation, exclusion from admission to the United
States, or denial of naturalization will result from a conviction of the offense(s) to which”
he pled guilty. Before taking defendant’s plea, the trial court confirmed that defendant
had read and understood the provisions of the plea form before signing and initialing it.
As previously explained, the trial court was not required to provide a further verbal
advisement; “a validly executed waiver form is a proper substitute for verbal
admonishment by the trial court.” (Ramirez, supra, 71 Cal.App.4th at p. 521.) Thus, the
evidence at the hearing established defendant was properly advised in compliance with
section 1016.5, and the trial court’s ruling was not an abuse of discretion.
12 Even if we assume, for the sake of argument, that the court erred in failing to
orally advise defendant of the immigration consequences pursuant to section 1016.5,
defendant cannot establish prejudice.
“On the question of prejudice, defendant must show that it is reasonably probable
he would not have pleaded guilty or nolo contendere if properly advised.” (People v.
Totari, supra, 28 Cal.4th at p. 884.) This question is a factual one. (Zamudio, supra, 23
Cal.4th at p. 210.) Accordingly, on review we apply the substantial evidence rule.
(Quesada, supra, 230 Cal.App.3d at p. 533.) Under this rule, we do not reweigh the
evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.
(Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d
557, 578.) Rather, “we ‘must view the evidence in a light most favorable to respondent
and presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. . . . If the circumstances reasonably justify the trial
court’s findings, an appellate court cannot reverse merely because the circumstances
might also be reasonably reconciled with a contrary finding.’ ” (Quesada, at p. 533.)
“Whether defendant knew of the potential immigration consequences, despite
inadequate advisements at the time of the plea, may be a significant factor in determining
prejudice . . . .” (People v. Totari, supra, 28 Cal.4th at p. 884.)
Defendant contends he was prejudiced by the court’s failure to comply with
section 1016.5 because he entered his plea “without fully understanding the collateral
consequences, foregoing any further plea negotiations or even trial, and unknowingly
13 subjecting himself to deportation proceedings.” In his declaration in support of his
motion to vacate, defendant asserts that had he known of the immigration consequences,
he would not have agreed to the conviction and would have waited to hear the result of
his suppression motion. He also would have sought advice from an immigration
attorney, would not have waived his trial rights, and would have requested an alternative
plea that would not have affected his permanent residency in the United States.
There is no merit to this contention. As indicated above, defendant executed the
plea waiver form in which he acknowledged the immigration consequences of his plea.
He also verbally indicated to the court at the plea hearing that he understood his rights;
that he had sufficient time to review his rights, the evidence, and any possible defenses
with his attorney; that he did not need any more time; and that he had no questions. From
these facts it is reasonably inferable that defendant understood the consequences of his
plea. The court reasonably could have concluded that defendant was still aware of these
consequences when he entered his plea; therefore it was not reasonably probable that
defendant would not have pled guilty to the charges had the court, at the time defendant
entered his plea, orally advised defendant of the immigration consequences pursuant to
section 1016.5 and inquired further of defendant. Thus, substantial evidence supports the
denial of defendant’s motion to vacate his conviction and withdraw his guilty plea.
B. IAC
Defendant also argues his motion to vacate his plea should have been granted
because he received IAC when his attorney affirmatively misadvised him and
14 misrepresented the immigration consequences of his plea. The People respond that
defendant’s nonstatutory motion to vacate based on IAC was properly denied because it
was untimely. In the alternative, the People argue that there is no evidence, other than his
self-serving statements, that he received IAC.3
In Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the United States Supreme
Court held that an attorney’s misadvice or failure to advise about the potential
immigration consequences of a plea may constitute ineffective assistance. There, the
defendant, a Honduran citizen, pleaded guilty to transporting a large quantity of
marijuana after his attorney erroneously advised that he need not worry about the
immigration consequences of his plea. (Id. at p. 359.) When Padilla sought
postconviction relief, the Kentucky Supreme Court held the Sixth Amendment’s
guarantee of effective assistance of counsel did not protect a criminal defendant from
erroneous advice about the collateral consequences of a conviction. (Padilla, at pp. 359-
360.) The Unites States Supreme Court disagreed, holding that constitutionally
competent counsel must inform his or her client whether a plea carries a risk of
deportation. (Id. at pp. 360, 374.) Padilla’s holding was not limited to affirmative
misadvice; instead, the high court reasoned that an attorney has an affirmative duty to
3 The People, in passing, also contend that the motion to vacate the plea based on IAC was properly denied because the trial court did not have jurisdiction to hear the matter. However, after having reviewed the trial court’s comments during the hearing on defendant’s fourth motion to vacate his conviction, the record, in our view, demonstrates that the court operated from the assumption that it had jurisdiction to rule on the statutory motion and the nonstatutory motion.
15 advise a client when the client faces a risk of deportation. (Id. at pp. 370-371, 374.)
Because it set forth a new rule of law, Padilla’s holding cannot be applied retroactively.
(Chaidez v. United States (2013) 133 S.Ct. 1103, 1105.)
Prior to Padilla, our Supreme Court held in In re Resendiz (2001) 25 Cal.4th 230
(Resendiz), abrogated on another ground in Padilla, supra, 559 U.S. at pp. 370-371, that
an attorney’s affirmative misadvice regarding the immigration consequences of a guilty
plea may give rise to a claim for IAC. (Resendiz, at pp. 235, 240.) In Resendiz, a habeas
matter, the court reasoned that a defendant may pursue a claim for relief for IAC based
on counsel’s misadvice regarding a plea’s immigration consequences, notwithstanding
the fact that the trial court properly advised the defendant under section 1016.5.
(Resendiz, at pp. 240-242.) The Resendiz court was “not persuaded that the Sixth
Amendment imposes a blanket obligation on defense counsel, when advising pleading
defendants, to investigate immigration consequences or research immigration law.” (Id.
at pp. 249-250.)
Defendant argues that his 2007 trial counsel’s affirmative misadvice and
misrepresentation concerning the immigration consequences of his plea constituted IAC
and that he is entitled to relief as a result of trial counsel’s errors.
At the outset, we note defendant presented alternative forms of relief to the trial
court. He presented a motion to vacate the judgment pursuant to section 1016.5. He also
purportedly presented a petition for a writ of error coram nobis. The trial court denied
both (the petition, for failure to show due diligence). As observed in People v. Carty
16 (2003) 110 Cal.App.4th 1518 (Carty), a motion to vacate the judgment pursuant to
section 1016.5 is a statutory motion, while a petition for a writ of error coram nobis,
which seeks a common law remedy, is a nonstatutory motion to vacate the judgment.
(Carty, supra, at pp. 1523, 1526; see People v. Kim (2009) 45 Cal.4th 1078, 1096 (Kim).)
To prevail on a coram nobis petition, the petitioner must establish that: (1) some
fact existed which, without his fault or negligence, was not presented to the trial court,
and which would have prevented the rendition of the judgment; (2) the newly discovered
evidence does not go to the merits of the issues of fact determined at trial; and
(3) petitioner did not know nor could he have, with due diligence, discovered the facts
upon which he relies any sooner than the point at which he petitions for the writ. (Kim,
supra, 45 Cal.4th at p. 1093; People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1146-1147
[Fourth Dist., Div. Two]; People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) The
writ is “ ‘ “not intended to authorize any court to review and revise its opinions; but only
to enable it to recall some adjudication made while some fact existed which, if before the
court, would have prevented the rendition of the judgment,” ’ ” (italics omitted) such as a
party’s death, infancy, or insanity, or that his plea was procured by means of fraud or
threat of violence. (Kim, supra, at pp. 1092, 1094.) The grounds on which relief may be
granted via a petition for writ of error coram nobis are narrower than on a petition for
writ of habeas corpus; the purpose of a writ of error coram nobis “ ‘is to secure relief,
where no other remedy exists, from a judgment rendered while there existed some fact
which would have prevented its rendition if the trial court had known it and which,
17 through no negligence or fault of the defendant, was not then known to the court’
[citation].” (Kim, supra, 45 Cal.4th at p. 1091.)
Here, the trial court properly denied defendant’s nonstatutory motion to vacate (or
petition for writ of error coram nobis) for the procedural reason that he did not show due
diligence. We see no evidence in the record of any conduct by defendant challenging his
2007 drug conviction by plea until he initiated the current matter by his first nonstatutory
motion to vacate his plea based on IAC in June 2013. Defendant was apparently satisfied
with the outcome of his 2007 case until immigration problems arose in January 2013. In
April 2010, defendant was aware of potential immigration consequences when he filed
his motion for early termination of probation and expungement of the conviction. In that
motion, defendant stated that he was a legal resident alien, originally from the Czech
Republic, and married to a United States citizen with five minor children and that
granting the motion for early termination from probation “would look good to the U.S.
Immigration Department when they again review his status here.” Even then, defendant
waited until June 2013 to file his first motion to vacate and until July 2014 to file his
fourth motion to vacate his 2007 conviction based on statutory and nonstatutory grounds.
This is not a record establishing due diligence.
Defendant argues that the delay was the result of error by his 2007 trial counsel
because at the time he filed his 2010 motion for early termination from probation and
expungement of his conviction he was “still operating under the assumption that the
conviction would have, at most, some effect upon the renewal of his green card, which
18 prior counsel had mistakenly told him.” Defendant maintains that his trial counsel
“utterly failed in her capacity to properly advise” him, “as she believed that an
expungement would assist” him “in remedying the immigration consequences of his
criminal conviction.”
Assuming the delay is ignored, we would find the trial court properly denied
defendant’s motion because it failed on the merits in that a claim of IAC may not be
raised by such a vehicle. It is settled that a “writ of error coram nobis, based on a claim
of IAC for failure to advise the defendant of the immigration consequences of his or her
plea, cannot be used to challenge a conviction or withdraw the plea.” (People v. Aguilar
(2014) 227 Cal.App.4th 60, 68 (Aguilar); see Kim, supra, 45 Cal.4th at p. 1104 [“That a
claim of IAC, which relates more to a mistake of law than of fact, is an inappropriate
ground for relief on coram nobis has long been the rule”]; People v. Mbaabu, supra, 213
Cal.App.4th at pp. 1144-1145; People v. Shokur (2012) 205 Cal.App.4th 1398, 1403-
1404 (Shokur); People v. Chien (2008) 159 Cal.App.4th 1283, 1290.) As our Supreme
Court explained in Kim, supra, 45 Cal.4th 1078, a presentation of facts which show that a
defendant’s willingness to enter a plea would have been affected by better legal advice
does not constitute a showing of facts that would have prevented rendition of the
judgment. (Id. at p. 1103.)
In Kim, for example, the defendant, Kim, alleged two purported mistakes of fact:
first, that he was unaware his plea to petty theft with a prior would subject him to
deportation; and second, he was unaware that, if deported, he would face religious
19 persecution. (Kim, supra, 45 Cal.4th at p. 1096.) Our Supreme Court held Kim had “not
demonstrated that facts existed at the time of his plea that satisfy the strict requirements
for this extraordinary type of collateral relief from a final judgment. Specifically, he has
not shown ‘ “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.” ’ ” (Id. at pp. 1101-1102.) Counsel’s
failure to fully advise Kim of the consequences of his plea or seek an immigration-neutral
disposition involved only “the legal effect of his guilty plea and thus [were] not grounds
for relief on coram nobis.” (Id. at p. 1102; see Aguilar, supra, 227 Cal.App.4th at p. 69.)
“New facts that would merely have affected the willingness of a litigant to enter a plea, or
would have encouraged or convinced him or her to make different strategic choices or
seek a different disposition, are not facts that would have prevented rendition of the
judgment.” (Kim, supra, at p. 1103.) Here, as in Kim, defendant’s allegations that his
2007 trial counsel misadvised him regarding the immigration consequences of his plea,
and that he was unaware of such consequences, are not the sort of new facts that give rise
to a coram nobis remedy. (Id. at p. 1103; Aguilar, supra, at pp. 69-70.)
Defendant attempts to avoid this result by arguing that “there have been no cases
that address the problem of when a defense attorney provides affirmative
misrepresentations to a non-citizen defendant, who then relies on such mis-advice [sic] to
his own detriment.” We reject this contention. Initially, we note that there is no evidence
in the record to show that defendant’s 2007 trial counsel affirmatively misadvised
20 defendant. There is no declaration in the record from his 2007 trial counsel to attest to
his self-serving statements. In addition, neither defendant nor his 2007 trial counsel
testified at the motion to vacate hearing in October 2014. His self-serving assertions that
counsel did not properly advise him and that he otherwise would not have pled as he did
are plainly insufficient to establish ineffective assistance. (In re Alvernaz (1992) 2
Cal.4th 924, 938 [defendant’s self-serving statement that he would have acted differently
but for counsel’s ineffective assistance “must be corroborated independently by objective
evidence”].)
Moreover, similar arguments have been considered and rejected by Shokur, supra,
205 Cal.App.4th 1398 and Aguilar, supra, 227 Cal.App.4th 60. “Padilla does not require
states to provide an avenue for noncitizens to challenge their convictions based on an
erroneous immigration advisement when no other remedy is presently available.”
(Shokur, supra, at p. 1405; see Aguilar, supra, at p. 74 [same].) Neither Padilla nor
California authorities “require a nonstatutory motion safety net to provide a remedy when
other remedies through which relief might have been obtained are no longer available.”
(Shokur, supra, at p. 1401; Aguilar, supra, at p. 73 [Padilla does not support an argument
“that an unlabelled nonstatutory motion affords [a defendant] a remedy when, as here,
relief by way of coram nobis is foreclosed as a matter of law”].) “[T]he fact that [the
defendant] may be entitled to use any available remedy to seek relief from what he claims
was ineffective assistance of counsel does not mean that any particular remedy is
available to him for that purpose.” (Aguilar, supra, at p. 72.) Padilla “held that a claim
21 of ineffective assistance of counsel may be based upon misadvising or failing to advise
the defendant regarding possible immigration consequences of a plea. [Citation.] But it
did not hold that such a claim may be brought long after [the defendant’s] right to pursue
available remedies [has] lapsed.” (Aguilar, supra, at p. 73.)
Defendant’s claim of IAC does not arise in a context in which the trial court
observed counsel’s performance during the course of a jury trial. (Compare People v.
Fosselman (1983) 33 Cal.3d 572, 582-583.) His claim is that, in receiving advice from
his counsel, he did not get adequate advice or that he was misadvised concerning the
immigration consequences of his plea. In sum, his contention is based on a factual
showing akin to a petition for habeas corpus.4
As did the Supreme Court in Kim, supra, 45 Cal.4th 1078, we acknowledge that
defendant faces the “harsh consequence” of possible deportation flowing from his 2007
drug conviction (id. at pp. 1108-1109). We nevertheless conclude, as in Kim, that he is
barred from obtaining relief from his conviction at this late date. (Ibid.) The United
States Congress has plenary power over matters of immigration and naturalization,
4 Defendant could not bring a petition for habeas corpus because his probation was terminated and he is not in custody of any state official. (Kim, supra, 45 Cal.4th at p. 1108.) Because defendant is neither in actual nor constructive state custody, he is ineligible as a matter of law for habeas corpus relief. (People v. Villa (2009) 45 Cal.4th 1063, 1066, 1068-1069.) “ ‘[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual “in custody” for the purposes of a habeas attack upon it’ [citation].” (People v. Villa, supra, at p. 1071.)
22 including deportation (ibid.), and appears to have determined that a person such as
defendant, with a conviction for cultivating marijuana, is subject to possible deportation.
In sum, “[h]aving failed to pursue any of the remedies provided by law, defendant
may not now, years later, obtain relief via a nonstatutory motion to vacate the judgment.”
(Shokur, supra, 205 Cal.App.4th at p. 1406.) The trial court properly denied the motion
to vacate the judgment and withdraw the plea.5
III
DISPOSITION
The trial court’s order dated October 23, 2014, denying the statutory and
nonstatutory motions to vacate the judgment and to withdraw his plea, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
HOLLENHORST J.
McKINSTER J.
5Given our conclusion, we do not reach the parties’ arguments regarding whether defendant has shown his counsel’s purportedly ineffective performance was prejudicial.