THE PEOPLE v. HERBERT SAZO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Herbert M. Sazo ¹ appeals from an order denying his petition for a writ of error coram nobis, by which he sought to vacate his 1991 guilty plea to the sale or transportation of a controlled substance, cocaine.   Sazo contends his counsel was ineffective, and the trial court failed to advise him regarding the immigration consequences of his plea, as required by Penal Code section 1016.5.²

We conclude that to the extent the petition was based on an ineffective assistance of counsel claim, it was properly denied.   Denial was also proper because a statutory motion pursuant to section 1016.5, rather than a coram nobis petition, is the proper procedural vehicle by which a defendant may challenge a trial court's purported failure to give the requisite immigration advisements.   However, because Sazo originally could have brought such a statutory motion under section 1016.5, and, on this record, it is appropriate for the trial court in the first instance to determine the propriety of granting such a motion, we remand the matter with directions to treat the coram nobis petition as a statutory motion under section 1016.5.   (People v. Carty (2003) 110 Cal.App.4th 1518, 1521.)

FACTUAL AND PROCEDURAL BACKGROUND

In August 1991, Sazo, a Guatemalan citizen, was charged with sale or transportation of a controlled substance, cocaine (Health & Saf.Code, § 11352, subd. (a)).  On August 14, 1991, Sazo pleaded guilty to the charge.   According to Sazo, the reporter's transcript of the August 1991 plea hearing is no longer available.   However, a document entitled “Certificate and Order of Magistrate” survives.   That document bears a stamp stating:  “Defendant further advised:  [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged 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.”   On August 29, 1991, Sazo was sentenced to three years probation, with 180 days in county jail.

In November 2008, the trial court granted Sazo's motions to reduce the conviction to a misdemeanor and to expunge the conviction pursuant to section 1203.4.³

On February 14, 2009, Sazo, acting in propria persona, filed a petition for a writ of error coram nobis, by which he sought to vacate his guilty plea.   Sazo explained that he was 20 years old when he pleaded guilty in 1991.   He has resided in the United States for the past 25 years, and his family and children all reside in California.   He has been self-employed as a contractor for the past 20 years.   As a result of the 1991 conviction, he is unable to obtain a contractor's license, is “barred from lawful gainful employment” in the United States, and has been “deprived ․ of being together with [his] United States citizen children and family.”

Sazo claimed that he received ineffective assistance of counsel in the 1991 case because (1) he and counsel spoke different languages and, as a result, never meaningfully conferred;  and (2) his attorney never advised him of the immigration consequences of his plea.   Further, he asserted that neither the trial court, the prosecutor, nor anyone else advised him of the immigration consequences of his plea, in violation of section 1016.5.⁴  As a result, his plea was neither knowing nor voluntary.

The trial court considered and denied the petition without a hearing.   It reasoned that a claim of ineffective assistance of counsel in making a guilty plea is not an appropriate basis for coram nobis relief.   Instead, the appropriate means of raising an ineffective assistance claim is by direct appeal or by a petition for a writ of habeas corpus.   Because Sazo had been placed in federal custody by the Immigration and Customs Enforcement (ICE)⁵ in connection with deportation proceedings, California courts no longer had jurisdiction to review a habeas petition.   Sazo appeals the denial of the coram nobis petition.⁶

DISCUSSION

1. Contentions of the parties.

On appeal, Sazo concedes that his ineffective assistance of counsel claim is not cognizable via a coram nobis petition.   However, he complains that the trial court failed to address his alternate contention, that the 1991 trial court failed to advise him of the immigration consequences of the plea as required by section 1016.5.   He asserts that because the reporter's transcript cannot be located, and the stamp on the 1991 order is insufficient to establish he was actually given the required advisements, his plea and conviction must be vacated.

The People, on the other hand, assert that the coram nobis petition is deficient because Sazo has failed to establish he was not advised of the immigration consequences of his plea as required by section 1016.5.   The People argue that the stamp on the order mirrors the language required by the statute, and it is unlikely a court would have stamped the order if it had not given the proper advisements.   Further, the People contend the coram nobis petition, brought 18 years after entry of the plea, is untimely, and the petition does not sufficiently allege Sazo would not have pleaded had he been accurately advised.

2. Section 1016.5.  

Section 1016.5, subdivision (a), requires that a trial court, prior to accepting a defendant's plea of guilty or nolo contendere to an offense punishable as a crime under California law, advise the defendant that:  “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged 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.”   Subdivision (b) of section 1016.5 provides in pertinent part:  “If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.   Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.”   In enacting the statute, the Legislature demonstrated concern that “those who plead guilty or no contest to criminal charges are aware of the immigration consequences of their pleas.”   (People v. Kim (2009) 45 Cal.4th 1078, 1107.)

To prevail on a motion brought pursuant to section 1016.5, a defendant must establish:  (1) at the time of the plea, the trial court failed to advise the defendant of the immigration consequences of the plea as provided in 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) properly advised, the defendant would not have entered the plea.  (People v. Totari (2002) 28 Cal.4th 876, 884;  People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199-200 (Zamudio );  People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.)   We review a trial court's ruling denying a motion to vacate the judgment for abuse of discretion.  (People v. Chien (2008) 159 Cal.App.4th 1283, 1287;  People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.)

3. Although the petition was properly denied, remand is appropriate so the trial court can consider the petition as a statutory motion pursuant to section 1016.5.

Our decision in People v. Carty, supra, 110 Cal.App.4th 1518, guides our resolution of Sazo's case.   In Carty, the defendant pleaded no contest to a crime in 1996, and was placed on probation and house arrest.   In 2002, Carty filed a petition for a writ of error coram nobis, seeking vacation of his plea.   Carty alleged in his petition that, as a direct consequence of his plea, he was facing deportation proceedings and other “grave immigration consequences.”  (Id. at p. 1522.)   As here, Carty claimed both that the trial court had failed to give him the immigration advisements required by section 1016.5, and that his counsel was ineffective for failing to advise him concerning the immigration consequences of the plea.   As a result, he urged, his plea was neither intelligent nor voluntary.  (Ibid.) The trial court denied the petition on the ground that coram nobis would not lie to vacate a judgment due to ineffective assistance of counsel, and because the petition was untimely.  (Ibid.)

We concluded that the petition was properly denied, but that remand was appropriate so the trial court could treat the coram nobis petition as a statutory motion brought pursuant to section 1016.5.  (People v. Carty, supra, 110 Cal.App.4th at p. 1521.)   We explained that coram nobis is a common law, nonstatutory remedy that generally lies to give relief where the petitioner, through fraud, coercion, or excusable mistake, was deprived of a fair trial on the merits, and no other remedy exists.  (Id. at p. 1523;  see also People v. Kim, supra, 45 Cal.4th at p. 1091.)   After enactment of section 1016.5 in 1977, however, a statutory remedy exists when a defendant enters a plea without being given the statutorily-mandated immigration advisements by the trial court.  (Id. at pp. 1524-1526.)   Subdivision (b) of section 1016.5 expressly provides that, upon a defendant's motion, a trial court shall vacate the judgment and permit the defendant to withdraw the plea if the court failed to give the proper immigration advisements.   We reasoned that this statutory motion, not a coram nobis petition, is the proper vehicle by which a defendant may seek to vacate his or her conviction on section 1016.5 grounds.  (People v. Carty, supra, at pp. 1524-1525.)   Thus, we held in Carty that, because the statutory remedy had supplanted the common law, coram nobis remedy, the trial court properly denied Carty's coram nobis petition.   Accordingly, we affirmed the trial court's order denying the petition.  (Id. at p. 1529.)   Nonetheless, we observed that Carty originally could have brought a statutory motion.  (Id. at p. 1530.)  “[I]n the interests of judicial economy and fairness,” we remanded the matter “with directions that the trial court treat Carty's petition as a statutory motion” and directed the court to conduct such further proceedings as it deemed appropriate.  (Id. at p. 1531.)

Here, as in Carty, Sazo's motion was properly denied.   As the trial court concluded, and as Sazo concedes, to the extent the petition raised an ineffective assistance of counsel claim, coram nobis did not lie.  (See People v. Kim, supra, 45 Cal.4th at pp. 1095, 1104;  People v. Chien, supra, 159 Cal.App.4th at p. 1290;  People v. Gallardo (2000) 77 Cal.App.4th 971, 987.)   Further, a statutory section 1016.5 motion cannot be used to assert defense counsel's failure to provide adequate representation relating to immigration consequences.  (People v. Chien, supra, at p. 1285.)   The trial court was also correct that it could not treat the coram nobis petition as a habeas petition, given that California courts lack jurisdiction to hear such petitions when the petitioner is in ICE custody.  (People v. Villa, supra, 45 Cal.4th at p. 1067 & fn. 1.) ⁷ Finally, as in Carty, to the extent the petition sought relief on the ground the trial court had failed to advise Sazo concerning immigration consequences, denial was proper because a statutory motion, rather than a coram nobis petition, was the proper remedy for relief.   (People v. Carty, supra, 110 Cal.App.4th at p. 1521.)

However, as in Carty, Sazo's claim is cognizable in a statutory motion brought pursuant to section 1016.5, and Sazo could have brought such a motion in the first instance.  (People v. Carty, supra, 110 Cal.App.4th at pp. 1521, 1530-1531.)   It appears that there exists more than a remote possibility that the 1991 conviction will have one or more of the specified adverse immigration consequences.   The trial court concluded that the petition sufficiently avers Sazo would not have entered his plea had he been properly advised.   Sazo states in his declaration that the trial court did not give him the immigration advisements required by section 1016.5.   The stamp on the order suggests otherwise.  (See People v. Dubon, supra, 90 Cal.App.4th at p. 954 [minute order may, under proper circumstances, qualify as a record within the meaning of section 1016.5].) Therefore, the questions of whether Sazo faces adverse immigration consequences as a result of the 1991 conviction, whether he was actually given and understood the proper advisements by the trial court (see People v. Carty, supra, at pp. 1525-1526), and whether he would have entered the plea had he been properly advised, are factual issues appropriate for resolution by the trial court in the first instance after an examination of the entire cause, including the evidence.  (Id. at p. 1530, citing Zamudio, supra, 23 Cal.4th at p. 210.)   The trial court did not address or rule upon these questions.⁸  Remand is therefore appropriate.

DISPOSITION

The order denying Sazo's petition for a writ of error coram nobis is affirmed.   The matter is remanded to the trial court with directions to treat the petition as a statutory motion to vacate the judgment brought pursuant to section 1016.5, subdivision (b), and to conduct such further proceedings with respect to such motion as are appropriate.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Sazo is also known as Adrian Rodriguez..  FN1. Sazo is also known as Adrian Rodriguez.

FN2. All further undesignated statutory references are to the Penal Code..  FN2. All further undesignated statutory references are to the Penal Code.

FN3. Section 1203.4, subdivision (a), provides in part that a successful probationer “shall thereafter be released from all penalties and disabilities resulting from the offense․”  (See generally People v. Field (1995) 31 Cal.App.4th 1778, 1786-1788.).  FN3. Section 1203.4, subdivision (a), provides in part that a successful probationer “shall thereafter be released from all penalties and disabilities resulting from the offense․”  (See generally People v. Field (1995) 31 Cal.App.4th 1778, 1786-1788.)

FN4. Sazo's coram nobis petition also complained that his due process rights were violated because the record does not contain a Spanish translation of the proceedings.   Sazo does not advance this contention on appeal, and accordingly we do not address it..  FN4. Sazo's coram nobis petition also complained that his due process rights were violated because the record does not contain a Spanish translation of the proceedings.   Sazo does not advance this contention on appeal, and accordingly we do not address it.

FN5. The Immigration and Naturalization Service (INS) has been reorganized into the Department of Homeland Security.   Deportations are now prosecuted by the United States Immigration and Customs Enforcement, or “ICE.” (People v. Villa (2009) 45 Cal.4th 1063, 1066, fn. 1.).  FN5. The Immigration and Naturalization Service (INS) has been reorganized into the Department of Homeland Security.   Deportations are now prosecuted by the United States Immigration and Customs Enforcement, or “ICE.” (People v. Villa (2009) 45 Cal.4th 1063, 1066, fn. 1.)

FN6. The trial court granted Sazo's request for a certificate of probable cause..  FN6. The trial court granted Sazo's request for a certificate of probable cause.

FN7. Unlike a habeas petition, a motion brought pursuant to section 1016.5 is cognizable even though the defendant is not in California custody.  (See People v. Villa, supra, 45 Cal.4th at p. 1076;  People v. Kim, supra, 45 Cal.4th at p. 1106.).  FN7. Unlike a habeas petition, a motion brought pursuant to section 1016.5 is cognizable even though the defendant is not in California custody.  (See People v. Villa, supra, 45 Cal.4th at p. 1076;  People v. Kim, supra, 45 Cal.4th at p. 1106.)

FN8. We express no opinion on these issues..  FN8. We express no opinion on these issues.

KLEIN, P. J. CROSKEY, J.