Opinion
B229073
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. ROGER FERNANDEZ, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA058558)
APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a negotiated agreement Roger Fernandez pleaded guilty in 1992 to aggravated assault and admitted he had personally used a firearm in committing the offense. He was sentenced to an aggregate state prison term of six years and was deported from the United States immediately after his release from prison in 1998. In 2010 Fernandez, again in federal custody awaiting deportation, moved to vacate the 1992 conviction, contending the court lacked jurisdiction to try him as an adult because he was only 16 years old at the time of the offense and his trial counsel was constitutionally ineffective because she failed to advise him of the immigration consequences of his plea. We affirm the trial court's order denying Fernandez's motion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting Incident, the Original Charges and the Plea Agreement
Fernandez was charged by information filed August 20, 1992 with two counts of attempted murder (the alleged victims were police officers) and one count of possession of a controlled substance (cocaine) for sale. As to the two attempted murder counts it was alleged Fernandez had personally used a firearm and had committed the offenses for the benefit of, at the direction of or in association with a criminal street gang and with the specific intent to promote, further or assist in criminal conduct by gang members.
Based on testimony at Fernandez's preliminary hearing, the shooting occurred in May 1992 after two Los Angeles police officers responded to a large gang-related incident near the campus of the University of Southern California. When the officers arrived, a group of approximately 25 Latino males quickly dispersed; only Fernandez remained at the scene. Fernandez walked toward the two officers, raised a handgun and fired a single shot in their direction. The officers took cover and requested assistance. Thereafter, Fernandez responded to the officers' commands, dropped the gun and was subdued. During a pre-booking search, a film canister containing rock cocaine was recovered from a pocket in Fernandez's pants.
According to Fernandez's May 2010 declaration, following his arrest he told the officers transporting him his true name and date of birth, August 12, 1975. Because they believed he was still a minor, the officers drove him to a hospital to treat a deep cut over his left eye sustained during his arrest. Before arriving at the hospital, however, one of the officers informed Fernandez the Los Angeles Police Department database had a record reporting his birth date as August 12, 1973 and, as a result, he did not need to be treated at the hospital before being taken to jail. Fernandez once more said he was born in 1975 and was only 16 years old, but the officers ignored him and took him to jail for booking. Fernandez did not again raise the issue of his age during the criminal proceedings.
On October 7, 1992, pursuant to a negotiated agreement, the People added a new count IV to the information, assault with a firearm (Pen. Code, § 245, subd. (a)(2)) with a related personal-use-of-a-firearm enhancement (Pen. Code, § 12022.5, subd. (a)). Following advisement and waiver of his constitutional rights, Fernandez pleaded guilty to that charge and admitted the firearm-use enhancement in return for a sentence of six years in state prison: the middle term of three years for aggravated assault and the low term of three years for the firearm-use enhancement. In connection with the plea, the prosecutor advised Fernandez, "Do you understand by pleading guilty to this offense that if you are not a citizen of the United States you are advised that conviction of this offense may have the consequences of deportation, exclusion from admission to the United States or denial of naturalization under the laws of the United States?" Fernandez, who had been born in Mexico but was a legal permanent resident of the United States at the time of his guilty plea, acknowledged he understood. The People's motion to dismiss the original three counts in the information was granted in the interests of justice.
2. The Motion To Vacate the 1992 Conviction
Fernandez was deported immediately upon his release from state prison in 1998. He apparently returned illegally to the United States and some time thereafter was arrested by federal officials. On May 21, 2010, while in federal custody facing felony charges in the United States District Court for the Southern District of California in connection with his illegal reentry to this country, Fernandez moved to vacate his 1992 conviction pursuant to Penal Code section 1385, alleging he had received constitutionally inadequate advice from his trial counsel regarding the immigration consequences of his guilty plea and the trial court lacked jurisdiction over him because he was a juvenile at the time of the offense and conviction.
With respect to the ineffective assistance claim, in his declaration in support of the motion to vacate Fernandez stated his lawyer, a public defender, never told him he would lose his green card and be deported upon pleading guilty to aggravated assault. He also declared he would have gone to trial if there was a chance he could stay in the United States. In the accompanying legal memorandum Fernandez argued under the recent United States Supreme Court decision in Padilla v. Kentucky (2010) 559 U.S. ______ [130 S.Ct. 1473, 176 L.Ed.2d 284] his lawyer had an affirmative obligation to warn him of the near-certain deportation and her failure to do so constituted ineffective assistance of counsel.
In support of his claim he had been tried in adult court while still a juvenile, Fernandez declared he was born on August 12, 1975; after his arrest he gave the officers his true birth date and told them he was 16 years old; the officers told him their database showed his birthday as August 12, 1973, which meant he was 18 years old; he told them again he was only 16; and the officers said they did not believe him. Fernandez also stated he did not think he could correct the mistake once the official paperwork reflected the wrong information; and he concluded, "That is why I did not tell the judge I was 16." In his memorandum in support of the motion, Fernandez contended he had affirmatively raised the issue of his age during the adjudication of his case by giving his true birth date to the arresting officers and argued the trial court had an independent obligation under Welfare and Institutes Code section 604, subdivision (a), to suspend proceedings, investigate Fernandez's age and certify the matter to the juvenile court upon confirming that Fernandez was under the age of 18 on the date of the charged offenses. The memorandum referred to Fernandez's legal permanent resident card, attached as an exhibit, which reflected his August 12, 1975 birthday, as well as to the presentence probation report prepared in the case, which listed three different dates of birth for Fernandez, August 12, 1973, August 12, 1975 and August 12, 1976.
The moving papers did not address the procedural requirements for a writ of error coram nobis or attempt to explain Fernandez's purported reliance on Penal Code section 1385 as a basis for the motion.
In opposition the People argued there was insufficient evidence Fernandez had not been properly advised of the immigration consequences of his plea, noting he was admonished in the language of Penal Code section 1016.5 that his guilty plea may lead to deportation. The People also insisted there was an inadequate showing of prejudice. To the extent Padilla v. Kentucky, supra, 559 U.S. ______expanded the responsibilities of defense counsel, the People contended, it should have no retroactive effect.
The People also argued there was insufficient evidence Fernandez was in fact a minor at the time the offense was committed. The People explained, although the probation report included three different birth dates (as well as three aliases by which Fernandez had been known), it identified his actual birthday as August 12, 1973 and expressly referred to him as a 19-year-old. In addition, the descriptions of Fernandez's juvenile history, with his age and the date of each offense noted, are consistent with a 1973 birth date, not one in 1975. Thus, the People contended, the trial court had no reason to believe Fernandez was a minor and, therefore, no obligation under Welfare and Institutions Code section 604, subdivision (a), to investigate the matter further. Finally, the People argued the issue had been forfeited because Fernandez did not raise it during the criminal proceedings or in a direct appeal from his conviction.
Like the moving papers, the People's opposition did not address the requirements for issuance of a writ of error coram nobis or otherwise argue Fernandez's motion was procedurally improper.
The trial court heard oral argument and denied the motion to vacate in a minute order dated September 24, 2010.
DISCUSSION
1. Governing Law and Standard of Review
In People v. Villa (2009) 45 Cal.4th 1063 (petitioner seeking relief by writ of habeas corpus) and People v. Kim (2009) 45 Cal.4th 1078 (Kim) (petitioner seeking relief by writ of error coram nobis) the Supreme Court considered two challenges to the validity of "old, otherwise final criminal convictions to eliminate them as a possible basis for removal from this country by federal authorities." (Kim, at p. 1084.) In Villa the Court held a person in federal immigration detention is ineligible for a writ of habeas corpus from state court if his or her state sentence and probation or parole have been completed. (Villa, at pp. 1073-1075.)
As explained in People v. Villa, supra, 45 Cal.4th at page 1076, the Legislature has enacted statutory remedies covering several analogous situations without the need to demonstrate custody, as required for a writ of habeas corpus, or to satisfy the strict requirements for a writ of error coram nobis. (See, e.g., Pen. Code, §§ 1016.5 [authorizing a motion to vacate for the trial court's failure to admonish defendant of immigration consequences], 1473.6 [authorizing a motion to vacate for newly discovered evidence of fraud or false testimony by a government agent].)
In Kim, quoting from its earlier decision in People v. Shipman (1965) 62 Cal.2d 226, 230, the Court described the extremely limited grounds on which a litigant may obtain relief through a petition for a writ of error coram nobis or its legal equivalent, a nonstatutory motion to vacate (see Kim, supra, 45 Cal.4th at p. 1096 ["a nonstatutory motion to vacate has long been held to be the equivalent of a petition for a writ of error coram nobis"]) "'The writ of [error] 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. . . (Kim, at p. 1093 ["[t]hese factors set forth in Shipman continue to outline the modern limits of the writ"].) The Kim Court emphasized the writ of error coram nobis does not lie to correct errors of law and is not available when the litigant had a remedy by way of appeal or motion for a new trial and failed to avail himself or herself of those remedies. (Ibid.)
Although not abandoning entirely his claim to relief pursuant to Penal Code section 1385—an issue we discuss in the final section of this opinion—Fernandez now acknowledges his motion to vacate the 1992 conviction is properly considered a petition for writ of error coram nobis. We review the trial court's order denying the motion for an abuse of discretion. (Kim, supra, 45 Cal.4th at p. 1095 ["a lower court's ruling on a petition for the writ is reviewed under the abuse of discretion standard"].)
2. A Claim of Ineffective Assistance of Counsel Is Not Cognizable on Coram Nobis
Confirming well-established California case authority, the Supreme Court in both Kim, supra, 45 Cal.4th 1078 and People v. Villa, supra, 45 Cal.4th 1063 reiterated a claim of ineffective assistance of counsel, like any number of other constitutional challenges to a conviction, cannot be vindicated on coram nobis. (Kim, at p. 1095; Villa, at p. 1076.) "That a claim of ineffective assistance of counsel, 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. [Citations.] Although an attorney has a constitutional duty at least not to affirmatively misadvise his or her client as to the immigration consequence of a plea [citations], any violation in that regard should be raised in a motion for a new trial or in a petition for a writ of habeas corpus." (Kim, at p. 1104; see People v. Banks (1959) 53 Cal.2d 370, 377-378 [coram nobis relief unavailable when defendant voluntarily and with knowledge of the facts enters a plea because of ignorance or mistake as to the legal consequences of the plea].)
The Supreme Court in Kim, supra, 45 Cal.4th 1078, also declined the invitation to expand the scope of a statutory motion to vacate under Penal Code section 1016.5, which governs the duty of the trial court to admonish a defendant regarding the possible immigration consequences of his or her plea, to encompass relief for a defendant, properly advised by the trial court, whose attorney failed to adequately supplement the statutory warnings.
Questions regarding the scope of an attorney's affirmative duty to advise his or her client about the immigration consequences of a guilty plea after Padilla v. Kentucky, supra, 559 U.S. at page ______ or the retroactive application of that decision—the focus of much of the argument in the trial court and the briefs on appeal—are simply beside the point. Even if Fernandez's counsel provided ineffective assistance, that claim is not cognizable on coram nobis.
3. Fernandez Is Not Entitled to a Writ of Error Coram Nobis Based on His Claim He Was a Minor at the Time He Committed the Aggravated Assault
Fernandez's second ground for coram nobis relief—his claim he was only 16 years old at the time he committed the aggravated assault and his case, therefore, properly heard by the juvenile court—suffers from multiple flaws. First, the relevant fact, Fernandez's age at the time of the offense to which he pleaded guilty, was not unknown to him, and thus not "newly discovered evidence" as required for obtaining a writ of error coram nobis. (Kim, supra, 45 Cal.4th at p. 1093; People v. Shipman, supra, 62 Cal.2d at p. 230.) That Fernandez may have been unaware of the legal significance of being a minor is not determinative: "For a newly discovered fact to qualify as the basis for the writ of error coram nobis, we look to the fact itself and not its legal effect." (Kim, at p. 1093.)
In addition, like the petitioner in Kim, Fernandez "failed to avail himself of other remedies when he had the chance." (Kim, supra, 45 Cal.4th at p. 1099.) Fernandez could easily have raised the issue of his age directly with the court at any time during the criminal proceedings, through a post-plea motion for a new trial or by direct appeal. In addition, although Fernandez was deported immediately after completing his six-year state prison sentence, while serving that sentence he could have filed a petition for writ of habeas corpus and presented the trial court with evidence that his conviction was improper because he was a minor at the time of the offense and no fitness hearing had been conducted in the juvenile court. Fernandez has proffered no plausible explanation for his failure to do so.
Fernandez has suggested his silence was the result of his defense attorney's advice he would be sentenced to the California Youth Authority (now the Division of Juvenile Justice), "leading him to believe that he had only been convicted of a juvenile offense." Even were we to credit that contention, once Fernandez found himself in state prison and not a juvenile facility, any such mistaken belief surely was corrected. Yet he still took no steps to assert his claim.
Beyond the procedural requirements for coram nobis relief itself, Fernandez forfeited his purported right to treatment as a juvenile by failing to raise the issue during the prosecution of his case. (See In re Harris (1993) 5 Cal.4th 813, 837-838 ["'[I]t is well settled that a person who is eligible to have his or her case proceed in juvenile court may waive this right either knowingly, or by failing to timely and properly raise the matter'"]; People v. Level (2002) 97 Cal.App.4th 1208, 1212-1213.) In Level Division Six of this court considered the sentence of a defendant with a prior conviction when she was 17 years old that qualified as a strike if treated as an adult conviction but not if treated as a juvenile adjudication. The appellate court affirmed the sentence imposed, finding the defendant had forfeited her right to a juvenile court adjudication or disposition because she had never revealed her true age in the course of the prior action. (Id. at p. 1211.) "[A]ppellant has waived any right to a juvenile court disposition of the prior action at issue here. Had she disclosed her true age while the juvenile court in the prior action still had jurisdiction over the matter, the prosecution could have petitioned the court to find her unfit for juvenile adjudication [citation] and, if appropriate, challenged her claim that she was only 17 when she committed the charged offense. . . . By her silence, appellant deprived the prosecution of these opportunities." (Id. at p. 1213.)
Conceding, as he must, a 16-year-old's right to proceedings in juvenile court is subject to waiver or forfeiture, Fernandez argues no such waiver occurred here because he did not affirmatively misrepresent his age and, in fact, told the arresting officers his true birth date. In addition, he contends, the presentence probation report listed three different birth dates, thus putting the trial court on notice in 1992 that additional investigation was necessary. Fernandez's unsubstantiated claim to the arresting officers that he was only 16, never again repeated by Fernandez and not mentioned by him or his counsel to the court or the prosecutor, does not constitute a sufficient disclosure to trigger the court's obligation to suspend proceedings and inquire about the defendant's age under Welfare and Institutions Code section 604, subdivision (a). Similarly, although page six of the probation report listed three different birth dates for Fernandez (one each in 1973, 1975 and 1976), together with several "AKA's" for him, the first page of that report unequivocally identified his birthday as August 12, 1973; the report expressly referred to him as 19 years old; and the listing of his juvenile history included an arrest in June 1989 when he was "age 15" and a Welfare and Institutions Code section 602 petition filed in October 1989 when he was "age 16"—both descriptions inconsistent with his claim to have been born in August 1975. Absent some affirmative statement from Fernandez or any substantial evidence he was not 18 years old when he shot at the police officers, the trial court was not required to pursue the matter further before taking his guilty plea.
The report, which recommended Fernandez be sentenced to state prison if convicted, stated, "Before the court is a 19-year-old with a known history of criminal activity and antisocial behavior dating from the age of 15."
Fernandez acknowledges he was large for his age and does not suggest anything about his physical appearance suggested he was younger than 18.
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Finally, Fernandez is also precluded by estoppel from asserting any rights he may have had as juvenile in this case. Represented by counsel, he agreed to a negotiated disposition with a specified aggregate sentence of six years in return for the dismissal of the remaining three felony counts, including two for attempted murder with related gang and firearm-use enhancement allegations. "Having enjoyed the fruits of [his] negotiated disposition, [he] cannot now be heard to complain that the court exceeded its jurisdiction in convicting and sentencing [him] as an adult. 'A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when "[t]o hold otherwise would permit the parties to trifle with the courts."'" (People v. Level, supra, 97 Cal.App.4th at p. 1213; see People v. Borland (1996) 50 Cal.App.4th 124, 127-128 [defendant who received concession in a negotiated disposition was estopped from challenging factual basis of plea on appeal].)
4. Fernandez Has No Right to Relief Under Penal Code Section 1385
Even if not entitled to relief by way of coram nobis, Fernandez argues his 1992 conviction should be vacated pursuant to Penal Code section 1385, subdivision (a), which authorizes the trial court to "order an action to be dismissed" if the dismissal is "in furtherance of justice." Fernandez, of course, is not seeking dismissal of a pending action or charges or allegations in an indictment or information, but rather vacation of a long-since final judgment of conviction. Use of Penal Code section 1385 in that manner would be inconsistent with the Supreme Court's strict focus on the language of the statute in construing its scope in In re Varnell (2003) 30 Cal.4th 1132, 1138-1139 (Pen. Code, § 1385 may not be used to dismiss uncharged sentencing factors), as well as its repeated holdings that striking a prior conviction under Penal Code section 1385 for sentencing purposes "is not the equivalent of a determination that defendant did not in fact suffer the conviction." (People v. Burke (1956) 47 Cal.2d 45, 51; accord, People v. Garcia (1999) 20 Cal.4th 490, 499; Varnell, at p. 1138.) It would also be impossible to reconcile with the Court's careful delineation of the available avenues for postjudgment relief in People v. Villa, supra, 45 Cal.4th 1063 and Kim, supra, 45 Cal.4th 1078, which omitted any reference to Penal Code section 1385. Indeed, as our colleagues in the First Appellate District have noted, "this statute has never been held to authorize dismissal of an action after the imposition of sentence and rendition of judgment." (People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8.)
DISPOSITION
The order denying the motion to vacate conviction is affirmed.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.