Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS011307
ELIA, J.Frank Vasquez appeals from the trial court's denial of his petition for a writ of coram nobis filed to vacate his conviction for assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a).) The purpose of the petition was to prevent defendant's mandatory removal from the United States. We dismiss the appeal.
At respondent's request, we have taken judicial notice of the record and our opinion in People v. Vasquez, H026805, filed December 21, 2004. In that matter, Vasquez appealed from the denial of his motion to modify probation or, alternatively, to vacate the judgment. This court affirmed.
On May 22, 2001, a complaint was filed against defendant, charging him with one count of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)), one count of willful infliction of corporal injury on a spouse or cohabitant (§ 273.5), and one count of misdemeanor battery (§ 242) on or about May 13, 2001. Each count involved a different victim. The complaint also contained an enhancement allegation that defendant personally inflicted great bodily injury in the commission of the assault charged in count one. (§ 12022.7, subd. (a) [consecutive three-year term]; see 1192.7, subd. (c)(8) [serious felony]; 667.5, subd. (c)(8) [violent felony].)
All further statutory references are to the Penal Code unless otherwise specified.
On July 10, 2001, defendant pleaded no contest to counts one and two on condition that he received felony probation and "there would be no objection" to count two being reduced to a misdemeanor if he completed 52 weeks of domestic violence counseling and there were no other incidents or problems. The plea form signed and initialed by defendant provided: "I understand that if I am not a citizen of the United States a plea of 'Guilty'/'No Contest' could result in deportation, exclusion from admission to this country, and/or denial of naturalization." Before accepting his plea and, upon learning defendant was not a citizen, the court advised: "This could affect your residency status; you could be deported and could be refused re-entry into the United States." Count three was taken "under submission for dismissal."
The court imposed and suspended execution of a four-year prison term on count one (§ 245, subd. (a)(1)) and suspended imposition of sentence on count two. The court placed defendant on three years of formal probation on count one and ordered him to serve 365 days in custody and to enroll in and complete a one-year domestic counseling program as conditions of probation. As to count two, the court indicated that it would place defendant on "informal reporting probation" and order him to serve 360 days in custody consecutive to the 365 days ordered on count one. Defendant accepted the grant of probation on count two as stated and the court dismissed count three.
On July 11, 2002, defendant appeared before Judge Kingsley to ask the court to modify its probation by "lift[ing] the remaining balance of the jail term" or, alternatively, to order him "released from custody into the Sobriety Works alcohol treatment living environment." The court acknowledged that defendant had "completed rehabilitation education through the jail programs." The judge suspended the remaining jail time conditioned upon defendant spending a minimum of six months in the Sobriety Works residential program and no credits being allowed for defendant's time in that program.
On August 1, 2003, defendant was arraigned on a violation of probation for "failure to obey all laws." Defense counsel acknowledged that defendant "did pick up a driving under the influence." Defendant admitted violating probation by consuming alcohol. The court revoked probation and released defendant on his own recognizance.
On August 29, 2003, defendant appeared before Judge Scott on the probation violation. Judge Scott ordered probation "reinstated on the same terms and conditions" except defendant was ordered to serve 460 days in county jail, with total credit of 404 days. The court indicated that, in order for the court to do that, defendant would have to waive all custody credits in excess of 365 days. Defendant was told that, as consequence of that waiver, he would receive a maximum of 365 days credit toward any state prison commitment following a future violation of probation. The court also required defendant to waive custody credits for any time spent in a residential treatment program. The judge ordered defendant "to enroll and successfully complete in-residence alcohol treatment program approved by the Probation Department...." Defendant was ordered to commence serving the remainder of his jail time on October 3, 2003, following completion of a residential sobriety program.
The probation report shows that defendant had already served 270 actual days through and including July 12, 2002. Section 19.2 imposes a one-year limitation on the time that can be served in county jail as a condition of probation for any single violation but a trial court has discretion to condition reinstatement of probation upon a defendant's express waiver of custody credits. (See People v. Arnold (2004) 33 Cal.4th 294, 298; see also People v. Johnson (2002) 28 Cal.4th 1050, 1055.)
On September 23, 2003, defendant filed a "motion to modify probation, or, in the alternative, to vacate judgment." The purpose of the motion was to prevent serious immigration consequences, including mandatory removal from the United States and raised claims of ineffective assistance of counsel in regard to those immigration consequences. The notice of motion stated that "[u]nless this court either modifies probation or vacates the judgment of conviction the defendant, a lawful permanent resident of the U.S. for 33 years, who came to this country when he was less than two months old, will be deported to Mexico for a 'crime of violence' with a sentence of one year or more which for immigration purposes is an 'aggravated felony.' " He requested the court, pursuant to section 1203.3, to change the original grant of probation on count one to an order suspending imposition of sentence. He also requested the court to change the terms of probation to specify that he serve 364 days in county jail on count one and the remainder of local custody time be served as a condition of probation on count two. Defendant alternatively asked the court to vacate the judgment of conviction based upon ineffective assistance of counsel.
In support of the motion, defendant submitted a number of declarations, including his own, the declaration of his criminal defense attorney who had represented him at the time of his plea, the declaration of Norton Tooby, an attorney that "specialized in representation of immigrants (non-U.S. citizens) in criminal courts," and the declaration of attorney Michael Mehr who was representing defendant in the pending immigration removal proceedings.
In his declaration, defendant stated that he was 33 years of age, he had come to this country with his parents when he was less than two months old, and he had resided in the U.S. continuously since that time. He reported that his entire immediate family resides in the U.S. He indicated that he, his mother, and four of his siblings are lawful permanent residents and his father and three of his siblings are U.S. citizens. He stated that he has "no ties to Mexico other than that I was born there" and he had applied for naturalization before being arrested in this matter. He reported that removal proceedings against him had been commenced.
Defendant stated that, prior to pleading no contest, he had asked his attorney if the plea bargain would affect his pending naturalization since his application had been approved but he had not yet been sworn in. Defendant recalled that his attorney Donald Kelly told him "something to the effect" that he should wait and go back to the INS after he completed his sentence and he "should try to reduce the felonies to misdemeanors and expunge the convictions to naturalize." Defendant further stated that his attorney never told him that "[he] faced mandatory deportation, permanent ineligibility to reenter and [he] would be forever barred from naturalizing if [he] received a one year sentence or a suspended state prison sentence."
Defendant indicated that he understood that he would face prosecution for the same offenses if the judgment were vacated. He further stated that he understood that he might be "subject to deportation for having committed two crimes of moral turpitude" even if the court modified probation.
Attorney Donald Kelly described the plea negotiations in his declaration: "When I negotiated the case with the People's representative and the Court, the People agreed to a felony probation sentence, as well as striking the great bodily injury enhancement, and were willing to reduce the domestic violence charge to a misdemeanor assuming Mr. Vasquez completed a one year of [sic] domestic violence counseling class and had no violations of probation. As the negotiations were proceeding, I inquired about and tried to get the Court to agree to a limitation on time (i.e. a lid) for the jail term. The Court informed me that she would not do so in this case because she needed to see a probation report first before she determined what would be an appropriate jail term and that it is against her custom and practice to do so in felony probation cases. However, I never specifically asked for a conditional plea bargain with a negotiated sentence subject to the Court's review of a probation report and victim witness statements."
Attorney Kelly confirmed that, prior to entering the plea, defendant had informed Kelly that he was not a U.S. citizen. Kelly stated that he told defendant that "any plea to a felony charge might get him deported." Kelly recalled that defendant said "he was either in the process of applying for or had applied for naturalization to become a citizen." When defendant asked whether the plea would affect such an application, Kelly told him "yes it would and that he should not apply, or if he had already, to not take any further action on it."
Kelly admitted in his declaration that he did not realize, and did not inform defendant, that "if the Court structured the sentence a certain way, in this case a suspended prison term or sentence, on either count of more than 364 days, that he was facing mandatory deportation without the possibility of relief, assuming the INS found out about the convictions and sentence." He indicated that, had he realized these immigration consequences, he would have sought to negotiate a disposition that avoided them and, if necessary to achieve such disposition, he would have offered to have defendant serve up to two consecutive 364-day jail terms as a condition of probation and, as a last resort, he would have offered to have defendant admit the enhancement allegation. He indicated that he believed that the District Attorney would have been amenable to a disposition that avoided a sentence of 365 days or more on each count "since the D.A. was pushing for a 365 day sentence" and "since the D.A. was willing to dismiss the 'strike' allegation." Kelly also believed "that if the D.A. went along with any of these dispositions, that the Court would have seriously considered them" "because the Judge was willing to grant defendant felony probation, and each of these dispositions would involve substantial jail time."
Attorney Tooby indicated in his declaration that defendant was immediately subject to mandatory removal under title 8, United States Code, section 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony once a state prison sentence was imposed on the assault charged in count one or once the court ordered defendant to serve 365 days in jail as a condition of probation. "Any alien who is convicted of an aggravated felony at any time after admission is deportable." (8 U.S.C., § 1227(a)(2)(A)(iii).)
"The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546, 'realigned the vocabulary of immigration law, creating a new category of "removal" proceedings that largely replaces what were formerly exclusion proceedings and deportation proceedings.' [Citations.]" (Evangelista v. Ashcroft (2004) 359 F.3d 145, 147, fn. 1.)
"The term 'alien' means any person not a citizen or national of the United States." (8 U.S.C. § 1101(a)(3).) The term "aggravated felony" includes "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." (8 U.S.C., § 1101(a)(43)(F), fn. omitted.) Section 16 of title 18 of the United States Code defines "crime of violence" as follows: "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or [¶] (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." "The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—[¶] (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and [¶] (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed." (8 U.S.C., § 1101(a)(48)(A).) "Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." (8 U.S.C., § 1101(a)(48)(B).)
Attorney Tooby stated that "[a]fter removal Mr. Vasquez will be permanently ineligible to reenter the United States under 8 USC 1182(a)(9)(A)(i), and is inadmissible under 8 USC 1182 (a)(2)(A)(i)(I) (conviction of crime of moral turpitude not falling within petty offense exception)" and Vasquez "is permanently precluded from naturalization, under 8 USC 1101(f)(8)" "[b]ecause Mr. Vasquez's conviction and sentence is deemed an 'aggravated felony' for immigration purposes...."
Section 1182 of title 8 of the United States Code provides in part regarding admission of aliens previously removed: "(a) Classes of aliens ineligible for visas or admission [¶] Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:... [¶] (9) Aliens previously removed [¶] (A) Certain aliens previously removed [¶] (i) Arriving aliens [¶] Any alien who has been ordered removed under section 1225(b)(1) of this title or at the end of proceedings under section 1229a of this title initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. [¶] (ii) Other aliens [¶] Any alien not described in clause (i) who—[¶] (I) has been ordered removed under section 240 or any other provision of law, or [¶] (II) departed the United States while an order of removal was outstanding, [¶] and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. [¶] (iii) Exception [¶] Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, [¶] the Attorney General has consented to the alien's reapplying for admission." (Italics added.) Section 1182(a)(2)(A), of title 8 of the United States Code provides: "(i) In general [¶] Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—[¶] (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or [¶] (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible. [¶] (ii) Exception [¶] Clause (i)(I) shall not apply to an alien who committed only one crime if—[¶] (I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or [¶] (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed)."
Section 1101(f), of title 8 of the United States Code provides in part: "For the purposes of this chapter—[¶] No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was—... [¶] (8) one who at any time has been convicted of an aggravated felony (as defined in subdivision (a)(43) of this section)." Section 1427 of the United States Code, title 8, provides in part: "(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." (Italics added.)
Attorney Tooby further acknowledged that "Mr. Vasquez is also subject to removal for conviction of a crime of domestic violence (for the P.C. 273.5(a)...) and is subject to removal for two crimes of moral turpitude (for the convictions of P.C. 273.5(a) and P.C. 245(a)(1))." Attorney Tooby indicated, however, that "[f]or these grounds of deportation, there is discretionary immigration relief known as 'Cancellation of Removal' for long-term permanent residents" if the convictions do not constitute aggravated felonies. He stated: "If the defendant had been sentenced to less than a year in jail on both counts, he would have been eligible to apply for this relief." According to Tooby, "[t]he correct advice would have been that the defendant 'would' become immediately deportable (or removable) upon pleading no contest to P.C. 245(a)(1) and P.C. 273.5, but that to preserve his chance to remain in the United States by means of discretionary immigration relief he needed a sentence of 364 days or less on both counts."
"Any alien who at any time after admission is convicted of a crime of domestic violence... is deportable. For purposes of this clause, the term 'crime of domestic violence' means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government." (8 U.S.C. § 1227(a)(2)(E)(i).) "Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable." (8 U.S.C. § 1227(a)(2)(A)(ii).)
"The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien--[¶] (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, [¶] (2) has resided in the United States continuously for 7 years after having been admitted in any status, and [¶] (3) has not been convicted of any aggravated felony." (8 U.S.C., § 1229b(a).)
Attorney Mehr stated in his declaration: "[Defendant's] naturalization application was approved by [the] INS prior to the conviction in this case. However, because he had not yet been sworn in, the INS reopened his naturalization case, and then denied it based on the conviction in this case since it was an 'aggravated felony'.... In this case the conviction was an 'aggravated felony' because there was a conviction for a 'crime of violence' with a sentence of one year or more." He explained: "Unless the conviction and sentence for the P.C. 245(a)(1) offense is vacated or modified, Mr. Vasquez will absolutely be removed from the U.S. since his conviction and sentence... triggers mandatory removal (previously known as deportation). If the judgment of conviction for P.C. 245(a)(1) is modified to 'imposition of sentence suspended' with 364 days as a condition of probation on Count 1, the defendant will be eligible for a discretionary immigration remedy called 'Cancellation of Removal' which is available for long-term permanent residents with no 'aggravated felony.' "
In support of the motion, defendant argued that his previous counsel had rendered ineffective assistance by failing to correctly advise him of the conviction's actual immigration consequences, namely mandatory deportation and permanent ineligibility to reenter this country and by failing to pursue a more favorable disposition in terms of immigration consequences with the prosecutor and the court. He asserted that "[a] reasonably diligent advocate would have sought at or after the original sentencing hearing, or at the time of the modification of probation, or later,... a sentence which would not trigger permanent banishment...." He alternatively argued that his defense attorney provided ineffective assistance by failing to move to withdraw defendant's plea within six months of entering it pursuant to section 1018.
On November 12, 2003, Judge Scott denied the motion to modify probation or set aside the plea. Vasquez appealed from the denial of the motion. On December 21, 2004, in People v. Vasquez, H026805, this court affirmed that denial. The California Supreme Court denied the petition for review on April 13, 2005.
Meanwhile, formal charges against defendant were filed by Immigration and Customs Enforcement (ICE) in January 2003. Defendant was detained by ICE for about 10 months before being released on bond. On April 26, 2004, he was ordered removed and an administrative appeal was denied on September 10, 2004. A petition for review was filed in the Ninth Circuit and was denied on February 20, 2008. A petition for rehearing or for a hearing en banc was denied May 1, 2008 and the mandate or judgment of removal was entered shortly thereafter.
In April 2008, appellant filed a "Notice of motion and motion for coram nobis to vacate judgment" in which he sought to vacate the court's order that granted probation and imposed a 365 day jail sentence. Defendant stated that the trial court "should grant the motion for coram nobis to vacate the sentence and allow the defendant to be re-sentenced after a sentencing hearing. The conviction can stand. The gist of the coram nobis motion was that at the time of the sentencing the court, the defendant, and the defendant's attorney did not know that a sentence of one day less – with imposition of sentence suspended – would have meant the difference between mandatory deportation and a discretionary immigration court decision about whether Mr. Vasquez should be deported." The prosecutor responded by arguing, "There is no published opinion holding that lack of knowledge as to immigration consequences constitutes a mistake of fact for coram nobis relief." The prosecutor also argued that defendant had not shown diligence.
On June 6, 2008, the trial court said that appellant had not shown due diligence in presenting his claim because he knew of the immigration consequences in 2003. The trial court denied the petition for writ of coram nobis.
Discussion
A petition for writ of error coram nobis is a type of motion to vacate the judgment, and "[f]or better or worse, the terms... are often used interchangeably and the two procedures are similar in scope and effect." (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) A petition for writ of error coram nobis is generally used to bring factual errors or omissions to the court's attention. "A writ of error coram nobis may be granted when three requirements are met: (1) 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) petitioner has shown that the newly discovered evidence does not go to the merits of the issues tried; and (3) 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. Wiedersperg (1975) 44 Cal.App.3d 550, 554.)
A denial of a petition for writ of error coram nobis is not appealable unless the petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 ["[i]n an appeal from a trial court's denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal"]; see People v. Dubon (2001) 90 Cal.App.4th 944, 950.)
Defendant's position is that he has properly presented in his petition the assertion of his lack of knowledge of a critical fact--that being the immigration consequences of his plea and sentence--which justifies relief on coram nobis. But this argument has been put to rest in People v. Kim(2009) 45 Cal.4th 1078, 1102 , where the court stated that such an alleged fact spoke "merely to the legal effect of [a] guilty plea and thus [is] not [a] ground[ ] for relief on coram nobis."
The parties were aware during the briefing process of the significance of People v. Kim(2009) 45 Cal.4th 1078. In his opening brief, appellant noted that "the legal issues concerning the applicability of coram nobis relief for mistake as to immigration consequences is pending, and fully briefed, before the California Supreme Court[.]... Most of the same legal issues would be determinative of this appeal." On March 16, 2009, this court granted appellant's request to postpone filing his reply brief pending the expected decision in Kim and a companion case on counsel's representation that these cases would "be pertinent to, and perhaps dispositive of, the issues presented by the instant case." Kim was decided that day, and appellant did not file a reply brief. This court requested, and has received, supplemental letter briefs from the parties discussing the applicability of Kim.
Defendant recognizes that in Kim, the Supreme Court "declined to 'expand' the writ of coram nobis to invalidate convictions entered despite the parties' and the court's ignorance of the actual immigration consequences." Defendant argues, "This decision did nothing, however, to change the Supreme Court's long-standing precedent under People v. Fosselman. That decision holds that a trial court has authority to order a new trial on the basis of ineffective assistance of counsel or another constitutional infirmity, even though no statutory authority existed for such a motion, because 'the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.' (People v. Fosselman (1983) 33 Cal.3d 572; see also Murgia v. Municipal Court (1975) 15 Cal.3d 286 (holding that, though there was no statutory authority for a motion to dismiss, there was 'no doubt in light of the constitutional nature of the issue as to the trial court's authority to entertain such a claim.').)" Defendant asserts, "Because the trial court failed to consider or adjudicate the non-statutory motion to vacate on the grounds of ineffective assistance of counsel, this Court should remand to the trial court to allow it to consider this issue."
We decline this invitation for two reasons. First, the trial court impliedly rejected the ineffective assistance argument on November 12, 2003. In bringing this petition for a writ of coram nobis, defendant noted "that a prior non-statutory motion in the nature of a writ of habeas corpus to vacate the conviction and sentence based on a constitutional ground of ineffective assistance of counsel was filed with the Superior Court on September 23, 2003, heard by Judge Scott, and denied." Defendant acknowledges that he "specifically stated in the Memorandum of Points and Authorities that 'the present motion is different [than the prior motion to vacate and the writ of habeas corpus] since it is not based on the constitutional ground of ineffective assistance of counsel and is not in the nature of a writ of habeas corpus.'" In his moving papers in the petition for a writ of coram nobis defendant said, "We cannot go back and reconstruct what sentence Judge Kingsley would have given defendant had she been informed that a 365 day sentence on either count would subject Frank Vasquez to mandatory deportation and permanent banishment. However, defendant submits that it is highly unlikely that a reasonable judicial officer would have refused to accept a 364 day consecutive sentence on each count with a waiver of time credits in lieu of the sentence imposed since such a sentence would have subjected defendant to more actual time in local custody than the sentence the court imposed."
However, during the hearing on November 12, 2003, counsel argued, "There is no doubt that the court would have granted the request for a nondeportable sentence if counsel had made it." Judge Scott responded to this argument by stating, "You talked about ineffective assistance of counsel back at the time of the modification of sentence. It sounds like the chamber conversation that we had after the court had prepared to deal with the motion earlier.... And I think the words that the court used is that the court is not going to participate in a charade which is the way the court perceived the request to modify the sentence at that time." The court reviewed the history of the case and said, "What was going on at Judge Kingsley's sentencing is it was very difficult for her not to send him straight to prison....What your client did was escape a certain lengthy prison sentence, and that was very effective assistance of counsel, nothing less.... There hasn't been anything presented that's new that would cause the court to change the court's mind, and I don't believe for a moment that it would have been appropriate for Judge Kingsley to engage in this charade back then."
Second, Fosselman and Murgia are distinguishable. In Fosselman, the court held that criminal defendants may raise claims of ineffective assistance of counsel in a motion for new trial even though the statute authorizing such a motion, Penal Code section 1181, "expressly limits the grant of a new trial to only the listed grounds, and ineffective assistance is not among them." (People v. Fosselman, supra, 33 Cal.3d at p. 582.) The court stated, "the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process," and noted further, "[i]t is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial." (Ibid.)
In Murgia, the defendants, charged with various crimes, moved to dismiss the charges on the ground that prosecutions violated their constitutional right to the equal protection of the laws. In approving of the use of a pretrial motion to raise this issue, the court stated "because a claim of discriminatory prosecution generally rests upon evidence completely extraneous to the specific facts of the charged offense, we believe the issue should not be resolved upon evidence submitted at trial, but instead should be raised, as defendants have done here, through a pretrial motion to dismiss. Although no clear California statutory authority provides for such a pretrial motion to dismiss, we have no doubt in light of the constitutional nature of the issue as to the trial court's authority to entertain such a claim." (Murgia v. Municipal Court, supra, 15 Cal.3d at fn. 4, pp. 293-294.)
Thus, Murgia dealt with a pretrial motion and Fosselman dealt with a timely post-trial motion. These cases do not provide authority for the proposition that a constitutionally-based claim may be raised years after judgment in violation of the principles governing coram nobis petitions.
Although one could argue that this case is an example of the disproportionately severe penalties that the current immigration laws impose, this court is bound by People v. Kim, which declined to expand the writ of coram nobis to invalidate convictions entered despite the parties' and the court's ignorance of the actual immigration consequences.
Disposition
The appeal is dismissed.
WE CONCUR: RUSHING, P. J., PREMO, J.