P. v. Lopera

Filed 6/18/07 P. v. Lopera CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County,

David M. Mintz, Judge. Affirmed.

Law Offices of Mark J. Werksman, Mark J. Werksman, and Kelly C. Quinn for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Janet Lopera appeals from the trial courts April 22, 2006 order denying her motion pursuant to Penal Code section 1016.5^[1]to set aside her 1991 negotiated no contest plea to one count of possession for sale of cocaine. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Felony Complaint and Plea Agreement

On February 8, 1991 Lopera and multiple codefendants, including her then fianc Jose Palacio, were charged by amended complaint with possession for sale of cocaine (Health & Saf. Code, 11351) (count 1), possession of proceeds in excess of $100,000 from the sale of cocaine (Health & Saf. Code, 11370.6) (count 2), conspiracy to sell cocaine (Health & Saf. Code, 11352) (count 3) and conspiracy to possess proceeds in excess of $100,000 from the sale of cocaine (Health & Saf. Code, 11370.6) (count 4).^[2] The amended complaint specially alleged as to count 1 the cocaine exceeded 50 pounds by weight and as to count 3 the cocaine exceeded 100 pounds by weight within the meaning of Health and Safety Code section 11370.4, subdivision (a), requiring the imposition of additional state prison terms.

On March 18, 1991 Lopera and Palacio agreed to accept the prosecutors joint offer that Lopera plead no contest to possession for sale of cocaine and Palacio plead guilty to possession for sale of cocaine in excess of 25 pounds (Health & Saf. Code,  11351, 11370.4, subd. (a)). In return, rather than face trial on felony charges and enhancements that could result in 15- to 20-year aggregate state prison terms, Lopera would be placed on three years of summary probation with no additional jail time beyond the 165 days she had already served. For his part, Palacio would be sentenced to an aggregate state prison term of 12 years. As an additional term of the plea agreement, prison officials were to arrange for Lopera to marry Palacio within a few days.

Lopera is a foreign national, who apparently lawfully entered the United States.^[3]It was additionally agreed in Loperas plea negotiations that, if Loperas felony conviction interfered with her ability to visit Palacio in prison or created a danger of deportation, she could withdraw her plea of no contest to the felony and instead enter a guilty plea to an unspecified misdemeanor.

2. The Plea Hearing

At a hearing on March 18, 1991 the trial court recited its understanding of the plea agreement between Lopera and Palacio, on the one hand, and the People, on the other hand. With respect to Loperas conditional right to withdraw her plea, the court stated, The agreement is that on or about the 28th of March [1991], Ms. Lopera will come back into the court, the court will permit her to withdraw her guilty plea to 11351 and allow her to enter a new and different plea. The prosecutor immediately corrected the courts description, Thats incorrect. As far as her returning back to court, that will be at a much later date. She will be waiting to see if she will be allowed to see Mr. Palacio while hes in prison, and should that be a problem, Ms. Lopera will come back into court. Counsel for Lopera did not object to the accuracy of the courts description as modified by the prosecutor.

Before the court accepted their pleas, Lopera and Palacio were advised through a Spanish language interpreter of their constitutional rights relating to trial. The prosecutor further advised, [I]f you are not a citizen of the United States, a plea of guilty or no contest in this case could result in your deportation, denial of admission or exclusion from naturalization in this country. Do you understand that Mr. Palacio?

Palacio answered: Yes.

The prosecutor then asked, Do you understand that, Ms. Lopera?

Loperas counsel said, Im going to answer on behalf of Ms. Lopera so Im sure that she understands, your Honor. She understands that there is a danger of deportation with this felony on her record. She also understands that her husband, that is her husband to be in a few days, will be in prison, and she may not be able to visit him with a felony on her record. In any event, we anticipate, and we ask the court to make a notation on the file that it is our intention to return to the court, and the court has already approved this as part of the plea bargain, to withdraw the plea to the count charged, make a plea to 11352[^[4]]. We ask the court to make a notation in the file because we know that assignments into the courtroom may change because your Honor may be elevated or whatever. And we ask the court to make that notation. With that comment, then I would repeat the question the district attorney asked of my client. Do you understand this situation, Ms. Lopera?

Lopera answered, Yes.

Loperas counsel continued, We have made this a part of the plea and a part of the promise to you, that you can come back to the court, if there is a danger of deportation, because of your entry into this plea or because you cannot visit your husband, Mr. Palacio, in prison, and this court has agreed, together with the district attorney and with your attorney, myself, that you can withdraw your plea of guilty and enter a plea to a misdemeanor, a less serious charge; do you understand all of this?

Lopera answered, Yes.

Lopera then pleaded no contest to count 1 of the information (Health & Saf. Code, 11351); her counsel joined in the waivers, concurred in the plea and stipulated to a factual basis for the plea. The court continued Palacios sentencing, but with the consent of Loperas counsel proceeded to sentence her to three years of summary probation with the condition she serve 165 days in county jail (a period equal to her actual presentence time served and her conduct credits) plus additional standard conditions of probation for drug violations. The remaining counts and all special allegations were dismissed on the prosecutors motion.

Lopera did not appeal from the judgment. At some point after successfully completing the three-year period of probation, Lopera was apparently allowed to withdraw her plea of no contest, substitute a plea of not guilty and have her case dismissed pursuant to section 1203.4.^[5]

3. The Motion to Set Aside the Plea Pursuant to Section 1016.5

On March 27, 2006, 15 years after her no contest plea, Lopera filed a motion pursuant to section 1016.5 to set aside her no contest plea on the ground she was not advised of the immigration consequences of her plea.Loperas counsel, the same attorney who had represented her in 1991, attached to the motion a copy of section 1016.5^[6]and asserted Lopera entered a plea of no contest without being advised of her rights [under section 1016.5] and it is mandatory that the court vacate the plea.^[7]In her declaration in support of the motion, Lopera testified she was never advised that a plea of no contest may cause deportation out of the United States;she would never have pleaded to the felony charge had she known it may subject her to deportation; she believed it was likely she would have prevailed at trial, but nonetheless agreed to accept the package deal offered by the prosecutor in order to be released from jail; and she was legally in the United States, qualified for legal resident status, self-employed and the divorced mother of an 11-year-old child born in the United States.

Also accompanying Loperas motion was the declaration of Connie Y. Jones-Isais, an immigration attorney. Jones-Isais opined, although the United States Immigration Service has not instituted any deportation proceedings against Lopera, it had the discretion to do so at any time; in November 2006 Loperas lawful permanent resident status would expire and her application to renew status or to attain United States citizenship would entail an investigation into her criminal history; and there is a strong probability Loperas 1991 felony conviction would be discovered and result in her deportation.

At the April 25, 2006 hearing on the motion the trial court read portions of the reporters transcript of the 1991 plea hearing establishing Lopera had been fully advised of the section 1016.5 immigration consequences of her felony plea, directly contradicting Loperas declaration and her attorneys assertion that no such advisement had been given. Defense counsel responded by arguing the transcript also showed Lopera realized she ran the risk of being deported by having a felony conviction and, to avoid that consequence, Lopera ensured the agreement provided she could withdraw her felony plea if there was a danger of deportation. Because such a danger now existed, as attested by her immigration attorney, counsel argued Lopera was entitled to specific performance of the agreement by having her felony plea withdrawn and the judgment vacated. The People opposed the motion.

The trial court denied the motion. The court observed the section 1016.5 advisement was properly given by the court in 1991, but then indicated the advisement was to some extent negated by the court permitting Loperas counsel to tell her that deportation [ ] was not something that she needed to be concerned about, because if it ever came to pass that there was that danger of deportation, she would be able to change that plea to a misdemeanor. The court concluded a persuasive argument could be made that, viewing the record as a whole, Lopera was not properly advised of possible deportation consequences. Nonetheless, given there were no deportation proceedings pending against Lopera and the threat of deportation was no greater in 2006 than had it been during the prior 15 years, the court found the declaration from Loperas immigration counsel was speculative and insufficient to demonstrate an actual danger of deportation, as required for relief under section 1016.5, subdivision (b). In addition, the court also found Lopera had not demonstrated due diligence in waiting more than 15 years to bring her motion and to bring it at a time when she could not reasonably be prosecuted for the underlying offenses if she were allowed to withdrew her plea and abrogate the original plea agreement.

DISCUSSION

1. The Statutory Motion To Set Aside Plea Was Properly Denied

Before the court accepted Loperas plea in 1991, Lopera was fully and properly advised by the prosecutor through a Spanish language interpreter, in accordance with the terms of section 1016.5, subdivision (a), of the potential immigration consequences of her decision to plead no contest to a felony charge. Immediately following the advisement, Lopera answered yes when asked by the court if she understood; and her counsel confirmed, She understands that there is a danger of deportation with this felony on her record.

Notwithstanding the subsequent discussion concerning the conditions under which Lopera might be able to withdraw her plea to the felony charge and re-plead to a misdemeanor, there can be no question on this record that the trial court complied with section 1016.5; that Lopera understood she could be deported as a result of the 1991 felony conviction; and that, as a result, Lopera is not entitled to relief on her statutory motion to set aside the plea. [O]nce the defendant receives a [section 1016.5] subdivision (a) advisement from the trial court prior to the plea, the defendant can no longer claim that the defendant was unaware of the immigration consequences specified in that advisement; the defendant is deemed to have understood the recitation if it was given in the defendants language. (People v. Carty (2003) 110 Cal.App.4th 1518, 1526.)

Even if there were some deficiency in the advisement Lopera received at the time of her 1991 plea, however, and putting aside the trial courts factual finding Lopera did not actually face a danger of deportation, Lopera would still not be entitled to relief on her statutory motion because she failed to establish that, if properly advised, she would not have pleaded no contest. (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198 [[n]ormally a motion to vacate a plea based on misadvisement or omission of a collateral consequence requires the defendant to demonstrate that he would not have entered into the plea had he known of the consequence. [Citations.] We see no indication that the Legislature intended section 1016.5 to operate as an exception]; id. at p. 200 [when ruling on 1016.5 motion, trial court must consider not only whether it formerly failed to advise defendant as 1016.5 requires and whether, as a consequence of conviction, defendant actually faces one or more of the statutorily specified immigration consequences, but also whether defendant was prejudiced by the courts having provided incomplete advisements].)

Lopera was charged with four serious drug-related felonies and was facing a maximum term calculated at various times as 15 years or 20 years in state prison. In return for agreeing to plead to a single felony count of possession of cocaine for sale, she received a minimum sentence -- three years of summary probation and term served (less than six months) in county jail. In view of the disparity between the terms of the proposed plea agreement and the possible consequences of proceeding to trial, it strains credulity to suggest a critical term in the negotiations was Loperas purported ability to withdraw her felony plea and plead instead to a misdemeanor whenever in the future she believed the danger of possible deportation grew too large. Indeed, this aspect of the plea agreement was so insignificant that Lopera apparently did not even recall it at the time she filed her statutory motion, which, as discussed, was based not on her desire to plead to a misdemeanor to avoid possible immigration consequences but to withdraw her plea entirely on the specious ground she had received no immigration advisements at all. The only evidence Lopera submits that she would not have entered into the plea had she been properly advised of the immigration consequences is her own self-serving statement. The Supreme Court has repeatedly held such a statement, standing alone, is insufficient to establish prejudice and must be corroborated independently by objective evidence. (In re Alvernaz (1992) 2 Cal.4th 924, 938; In re Resendiz (2001) 25 Cal.4th 230, 253.)

2. Lopera Is not Entitled to Relief by Deeming Her Statutory Motion To Vacate Judgment a Petition for Writ of Error Coram Nobis

Although Lopera filed only a statutory motion to vacate the judgment and to withdraw her plea under section 1016.5, once it became clear in the trial court she had in fact been given immigration advisements in 1991, her counsel shifted ground and argued for what he termed specific enforcement of the plea agreement. The trial court discussed that issue with counsel and referred to a petition for writ of error coram nobis,^[8]as well as a motion under section 1018, when analyzing Loperas obligation to exercise due diligence in moving to set aside the judgment. However, the trial court did not treat Loperas motion as a petition or nonstatutory motion to vacate and denied her motion only on the basis of the requirements for relief under section 1016.5. Similarly, in her notice of appeal Lopera sought review only of the denial of her motion under section 1016.5 and did not indicate she had presented to the trial court a nonstatutory motion or a petition for writ of error coram nobis. Nonetheless, in her briefs on appeal, without discussion of the appropriate procedural context for doing so, Lopera once again argues she is entitled to specific performance of her plea agreement -- that is, that she be allowed to withdraw her no contest plea to the felony charge and plead instead to some unspecified misdemeanor -- relief that on occasion has been granted by a writ of error coram nobis, but that is not properly sought under section 1016.5.^[9]

Lopera did not ask the trial court, nor does she ask us, to consider her statutory motion to vacate the judgment and withdraw her guilty plea as a petition for writ of error coram nobis;^[10]and we decline to consider the merits of any purported nonstatutory claim for relief. [O]ur Supreme Court has made clear that a petition is the equivalent of a motion to vacate judgment, but appellate cases err by asserting that [a] motion to vacate the judgment is the equivalent of a petition for a writ of error coram nobis [citations], since a statutory motion is not a nonstatutory petition. (People v. Carty, supra, 110 Cal.App.4th at p. 1526, fn. omitted.) Because the requirements for relief, and thus the evidentiary showing necessary to prevail on a statutory motion under section 1016.5, differ significantly from those for relief on a coram nobis petition, [o]ur insistence upon distinguishing between the statutory motion and a petition does not promote form over substance. (Carty, at p. 1527.)

Moreover, although there is no need to decide the issue, the trial courts conclusion Lopera failed to exercise due diligence in filing her statutory motion under section 1016.5 would be equally fatal to a petition for writ of error coram nobis had Lopera attempted to file one. (People v. Shipman (1965) 62 Cal.2d 226, 230 [writ of error coram nobis will not issue unless petitioner establishes he or she did not know and could not have discovered with due diligence the facts he or she relies on earlier than the time of the petition]; see In re Watkins (1966) 64 Cal.2d 866, 870-872 [three-year delay precluded coram nobis relief]; see also People v. Shorts (1948) 32 Cal.2d 502, 513 [timeliness of presentation of facts supporting coram nobis petition must be pleaded with particularity].)

Lopera, through her counsel, acknowledged at the time of her 1991 plea agreement she understood her felony conviction created a danger of deportation. Although that danger was apparently reconfirmed by her immigration counsel in 2006, the trial court appropriately concluded Loperas 15-year delay in seeking to eliminate that danger by invoking her right to withdraw her felony plea and plead instead to a misdemeanor was unreasonable.^[11] Nor is it proper to measure Loperas diligence in asserting her purported rights under the plea agreement, as Lopera suggests on appeal, from the hearing in April 2006 when she learned the District Attorney would oppose her belated request to withdraw her felony plea. Lopera could have attempted at any time during her three years on summary probation to withdraw her felony plea and plead instead to a misdemeanor. Had the People opposed that request, enforcement of the terms of the plea agreement would be available by a petition for writ of habeas corpus. Similarly, Lopera, apparently concerned about the felony conviction on her record, successfully pursued relief under section 1203.4, which permitted her to withdraw her plea and to have the charges dismissed; yet she offers no explanation why she failed to seek enforcement of her plea agreement at that time. Having elected for whatever reasons to forgo those procedures,^[12]Lopera is not now entitled to seek relief by way of coram nobis. (See People v. Brady (1973) 30 Cal.App.3d 81, 88 [[C]oram nobis is a remedy of narrow scope . . . . Its purpose is to secure relief, where no other remedy exists]; see also Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 798 [denying coram nobis relief; maxim for every wrong there is a remedy is not to be regarded as affording a second remedy to a party who has lost the remedy provided by law through failing to invoke it in time -- even though such failure accrued without fault or negligence on his part].)

DISPOSITION

The order denying the statutory motion to vacate the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORT

PERLUSS, P. J.

We concur:

JOHNSON, J. WOODS, J.

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^[1]Statutory reference are to the Penal Code unless otherwise indicated.

^[2]Additional counts with enhancement allegations were charged against Palacio and other codefendants.

^[3] Loperas country of origin is not indicated in the record.

^[4] The reference by Loperas counsel to 11352 was an error. There was (and is) no section 11352 in the Penal Code (as Lopera suggests in her appellate briefs); and in 1991 the offense of selling, transporting or offering to sell a controlled substance in violation of Health and Safety Code section 11352, subdivision (a), was, as it is now, a felony.

^[5] The record filed with Loperas appeal does not include any documents or orders relating to the section 1203.4 dismissal. However, the People do not dispute Loperas representations on this point; and we, therefore, accept them as true. Because a dismissal under section 1203.4 does not eradicate the conviction for all purposes, however, the 1991 judgment remains subject to attack by a motion pursuant to section 1016.5 or, in an appropriate case, by a petition for writ of error coram nobis. (See People v. Wiedersperg (1974) 44 Cal.App.3d 550, 554.)

^[6]As it did in 1991, section 1016.5 provides, (a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law . . . the court shall administer the following advisement on the record to the defendant: [] 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. [] (b) . . . If . . . 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 defendants 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.

^[7] Apparently in preparing the motion Loperas counsel did not locate a copy of the transcript of the 1991 plea hearing and based the motion on the abstract of judgment and minute order in the court files.

^[8]A petition for a writ of error coram nobis, the equivalent of a motion to vacate the judgment (People v. Dubon (2001) 90 Cal.App.4th 944, 950), lies to give relief to a petitioner who through fraud, coercion or excusable mistake was deprived of a fair trial on the merits. (People v. Carty, supra, 110 Cal.App.4th at p. 1523.) The writ of 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. . . . [Citations.] (People v. Shipman (1965) 62 Cal.2d 226, 230.)

^[9] A petition for writ of error coram nobis has been recognized in some instances as an appropriate procedure for a defendant, after judgment, to seek to enforce the terms of a plea agreement. (See, e.g., People v. Collins (1996) 45 Cal.App.4th 849, 863; In re Dorsey (1947) 81 Cal.App.2d 584, 586 [coram nobis lies when a defendant has been fraudulently coerced or persuaded to plea guilty or is deprived of the right to trial by extrinsic fraud, deceit, duress, persuasion or misrepresentation, when no statutory remedy for the wrong exists, or when the statutory remedy is inadequate].)

^[10]Because Lopera did not appeal her 1991 no contest plea and judgment of conviction, she may not file a petition for writ of error coram nobis directly in this court. (See 1265; People v. Griggs (1967) 67 Cal.2d 314, 316, fn. 1 [The superior court was the proper court to petition for the writ, because petitioner had not appealed his judgment of conviction]; People v. Westbrook (1964) 62 Cal.2d 197, 202 [coram nobis petition must be presented in first instance to trial court].)

^[11]Indeed, because the danger of deportation resulting from the felony conviction was discussed with Lopera and the trial court before Lopera entered her plea, it is not a fact that existed but was not presented to the court at the trial on the merits, an essential element for issuance of a writ of error coram nobis. (See People v. Shipman, supra, 62 Cal.2d at p. 230.)

^[12] As discussed, the prosecutor at the 1991 plea hearing indicated Lopera would return to court to change her plea if her ability to visit Palacio in prison was adversely affected by the felony conviction on her record. Presumably Lopera was able to see Palacio once he had been sentenced to state prison -- or she ceased to be interested in doing so -- and thus perceived no reason to return to court prior to 2006 notwithstanding the on-going danger of adverse immigration consequences.