Filed 2/23/15 P. v. Alvarez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, E060464
v. (Super.Ct.No. CR64102)
JERONINO H. ALVAREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Karlin & Karlin and Marc A. Karlin for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and
Respondent.
On October 31, 1995, defendant and appellant Jeronino H. Alvarez entered into a
negotiated plea of guilty to a single count of transporting heroin for sale in exchange for
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the dismissal of three other related counts. (Health & Saf. Code, § 11352, subd. (a).)
The trial court sentenced defendant to five years in state prison and dismissed the other
counts alleged against him.
On November 15, 2013, defendant filed an unsuccessful motion to vacate his plea
based on ineffective assistance of counsel. He now appeals the denial of this
postjudgment request. We affirm the trial court’s order on procedural grounds we discuss
post.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant’s conviction are largely irrelevant, since we
resolve this appeal on procedural grounds. We note only that, at the preliminary hearing,
an officer from the Riverside County Sheriff’s Department testified that defendant had
personally sold him methamphetamine on one occasion and heroin on the same occasion
and one other. The officer also testified that defendant participated in the sale of
additional heroin on yet a third date.
On October 31, 1995, defendant changed his plea to a negotiated one of guilty on
one count for transporting heroin for sale. He signed a standard plea form and placed his
initials next to the following advisement: “If I am not a citizen of the United States, I
understand that this conviction 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.” Defendant also placed his initials next to a statement to the effect that
he had adequate time to discuss with his attorney the consequences of his plea. Defense
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counsel signed an attestation to the same effect. Moreover, defendant told the trial court
that he had a chance to discuss his plea decision with his attorney, as well as that he
understood and waived the rights described in the standard plea form he signed. At
defendant’s request, the trial court sentenced him on the date he pled guilty.
In his November 2013 motion to vacate his plea, defendant presented a sworn
declaration attesting that he is a citizen of Mexico and was a lawful United States resident
at the time of his arrest. He complained that the United States had terminated his legal
resident status and disqualified him from any type of “immigration relief” because of the
guilty plea he entered into in 1995. Defendant further alleged that neither his defense
attorney nor the trial court had advised him that a conviction for transporting heroin for
sale would probably cause him to be deported and rendered ineligible to return to the
United States. Relying almost exclusively on Padilla v. Kentucky (2010) 559 U.S. 356
(Padilla), defendant argued that the failure to provide specific advice about the
ramifications his conviction would likely have on his immigration status amounted to
ineffective assistance of counsel, such that his plea should be withdrawn.
ANALYSIS
As defendant acknowledges, “a nonstatutory motion to vacate has long been held
to be the legal equivalent of a petition for a writ of error coram nobis. [Citations.]”
(People v. Kim (2009) 45 Cal.4th 1078, 1096 (Kim).) We employ the deferential abuse of
discretion standard when reviewing trial court orders on writs of error coram nobis. (Id.
at p. 1095.) In this case, the trial court did not abuse its discretion when denying
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defendant’s request to vacate his guilty plea on the ground that his attorney had rendered
ineffective assistance because a claim of ineffective assistance of counsel is not
cognizable on a writ of error coram nobis.
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, through no negligence or
fault of the defendant, was not then known to the court.” (People v. Mbaabu (2013) 213
Cal.App.4th 1139, 1146 (Mbaabu) [Fourth Dist., Div. Two].) To prevail, the writ
petitioner must show three things: “ ‘(1) that some fact existed which, without his fault
or negligence, was not presented to the court at the trial and which would have prevented
the rendition of the judgment; (2) that the new evidence does not go to the merits of the
issues of fact determined at trial; and (3) that he 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. [Citations.]’ ” (People v. McElwee (2005) 128
Cal.App.4th 1348, 1352.)
As Kim explained, the remedy of a writ of error coram nobis is available to correct
errors of fact, but not errors of law. (Kim, supra, 45 Cal.4th at pp. 1093-1095.)
Therefore, a claim of ineffective assistance of counsel, which is a question of law rather
than of fact, is not cognizable on a writ of error coram nobis. (Ibid.; People v. Banks
(1959) 53 Cal.2d 370, 378 [“It has often been held that the motion or writ is not available
where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted
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alleged prior convictions because of ignorance or mistake as to the legal effect of those
facts”].)
Here, defendant’s motion to vacate his plea was based on no facts or theories other
than that his counsel had failed to adequately advise him of the immigration
consequences that might follow a guilty plea to a charge for transporting heroin for sale.
As we held in Mbaabu, coram nobis is “not a proper vehicle for relief from the
judgment” on the ground of ineffective assistance of counsel. (Mbaabu, supra, 213
Cal.App.4th at p. 1147.) Consequently, we conclude that the trial court could not have
granted defendant’s writ of error coram nobis, even had it found that his counsel had
rendered ineffective assistance in connection with the plea.
Defendant appears to assume that, because Padilla held that the failure to advise a
criminal defendant of the immigration consequences of pleading guilty may constitute
ineffective assistance of counsel, he may choose any means he wishes to put a claim that
Padilla has been implicated before the trial court. What defendant ignores is that,
“ ‘ “The writ of error coram nobis is not a catch-all by which those convicted may litigate
and relitigate the propriety of their convictions ad infinitum.” ’ [Citation.] Neither is a
nonstatutory motion to vacate the judgment.” (People v. Shokur (2012) 205 Cal.App.4th
1398, 1403-1404.) Nothing in Padilla changes the rule from Kim that ineffective
assistance of counsel may not be reached on a petition for writ of error coram nobis. (Id.
at pp. 1404-1405.)
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DISPOSITION
The denial of defendant’s posttrial request to vacate his guilty plea is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
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