Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 00WF1042 Thomas M. Goethals, Judge.
Andrés Z. Bustamante for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant John Javier Williamson appeals from the denial of a motion to vacate the judgment following his conviction in 2001 of violating Penal Code section 273.5, subdivision (a), corporal injury to a spouse. He based the motion on ineffective assistance of counsel. The trial court correctly concluded that under People v. Kim (2009) 45 Cal.4th 1078 (Kim) he was not entitled to this relief. We therefore affirm the order.
FACTS
In 2001, defendant, a citizen of Nicaragua, was convicted of corporal injury to a spouse, a felony. The court sentenced him to two years in prison, execution of sentence suspended, and he was placed on formal probation. Defendant had previously rejected a plea bargain of 120 days in jail and three years of formal probation. He claims that, as a result of his conviction, he will be deported, denied residency, and naturalization, and excluded from the United States. He also claims that, had he accepted to the plea bargain offer, he “would have been spared... some or all the immigration consequences.”
In 2010, defendant filed a motion in the trial court entitled “non-statutory motion to vacate plea or sentence on constitutional grounds of ineffective assistance of counsel and for sua sponte order dismissing action... and vacating judgment.” (Capitalization omitted.) Defendant’s claim of ineffective assistance of counsel is based on his contention that his lawyer in the earlier criminal proceedings failed to advise him of the more serious immigration consequences that might result if he failed to accept the plea bargain offer. The trial court denied the motion.
DISCUSSION
This case is governed by Kim, supra, 45Cal.4th 1078 upon which the trial court relied and which presented facts substantially similar to those here. In Kim, the defendant, a non-citizen, was subject to federal removal proceedings because of state felony convictions. He petitioned the trial court in what he denominated a “motion to vacate judgment (coram nobis)” (capitalization omitted and italics added) and a “non-statutory motion and motion to vacate judgment.” (Capitalization omitted.) (Id. at p. 1089.) The second motion was, as is the motion here, based on counsel’s alleged ineffective representation in failing to adequately investigate the immigration consequences of his plea. The Supreme Court treated both motions as being for a writ of error coram nobis and concluded the writ was not available to the defendant. It characterized the remedy provided by the writ as “narrow” (id. at p. 1093), and stated that because it “applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, ‘[t]he remedy does not lie to enable the court to correct errors of law.’ [Citations.]” (Id. at p. 1093.) Clearly, defendant here fails to meet this test.
The Kim court also noted that “‘A writ of [error] coram nobis is not available where the defendant had a remedy by (a) appeal or (b) motion for a new trial and failed to avail himself of such remedies.’ [Citations.]” (Id. at p. 1093.) Further, “with regard to defendant’s claims that his counsel was constitutionally ineffective for failing to investigate and for failing to negotiate a different plea, we conclude neither allegation states a case for relief on coram nobis. 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.]” (Id. at p. 1104.)
It is of some significance that, despite the fact the trial court specifically relied on Kim, defendant fails to even mention the case in his opening brief. And although the Attorney General cites the case in the respondent’s brief, defendant failed to file a reply to that brief.
Both in the trial court and here defendant relies primarily on Murgia v. Municipal Court (1975) 15 Cal.3d 286 and People v. Fosselman (1983) 33 Cal.3d 572. But neither case presents a situation that is analogous to the one here. Murgia involved a discovery order sought to support a pretrial motion to dismiss. Fosselman dealt with a motion for a new trial based upon ineffective representation.
In Murgia, the court held that the mere absence of statutory authority did not preclude the trial court from entertaining a motion to dismiss based on constitutional violations. (Murgia v. Municipal Court, supra, 15 Cal.3d at p. 294, fn. 4.) Fosselman held that, even though the new trial statute did not specify ineffective representation as a ground for the motion, the trial judge nevertheless had a duty to consider violations of constitutional rights when ruling on such a motion. (People v. Fosselman, supra, 33 Cal.3d at p. 582.) In both cases the motions were made while the trial court still had jurisdiction of the cases. And neither teaches that the trial court has the power to vacate judgments that have long been final.
DISPOSITION
The order is affirmed.
WE CONCUR: BEDSWORTH, J.FYBEL, J.