PEOPLE v. KIM









Filed 3/16/09 (this opinion should follow the companion case, S151561, also filed 3/16/09)





IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Appellant, )
) S153183
v. )
) Ct.App. 6 H029324
HYUNG JOON KIM, )
) Monterey County
Defendant and Respondent. ) Super. Ct. No. SM970463
__________________________________ )

Defendant Hyung Joon Kim was born in South Korea and entered this country legally with his parents when he was a young child. He has lived in this country as a legal resident for more than two decades but never became a citizen. As a result of his multiple criminal convictions, the federal government now seeks to remove him from the country and return him to South Korea. He petitioned for a writ of error coram nobis in the trial court, seeking to vacate the state felony convictions that triggered his federal removal proceedings. His case is one of two we decide today in which litigants seek to challenge the validity of old, otherwise final criminal convictions to eliminate them as a possible basis for removal from this country by federal authorities. As we explain in a companion case (People v. Villa (Mar. 16, 2009, S151561) __ Cal.4th ___), a person in federal immigration detention is ineligible for a writ of habeas corpus from a state court if his state sentence and probation or parole have been completed. In the instant case, we conclude defendant Kim is ineligible for a writ of error coram nobis on the facts of this case. Accordingly, because the Court of Appeal below correctly reversed the trial court’s decision to issue the writ, we affirm.

I. Facts

A. Background

Defendant Kim was born in South Korea in 1977. His parents brought him and his brother to this country on a family visa when defendant was six years old. He became a lawful permanent resident in 1986 and has resided continuously in this country since his initial entry. His mother and brother are naturalized citizens; his father is a lawful permanent resident.
While still a juvenile, defendant was arrested on several occasions and eventually became a ward of the court in February 1995, having been found to be a minor in possession of live ammunition, a misdemeanor. (Pen. Code, § 12101, subd. (b).)^[1] The juvenile court placed him on probation on certain conditions, including a specific prohibition against possessing weapons or ammunition. Defendant turned 18 years old in December of that year.
In April 1996, while still on juvenile probation, defendant and two juveniles burglarized a tool shed behind a residence in Pacific Grove, Monterey County, stealing three firearms. When police searched a storage shed to which defendant had access, they found the three stolen guns, some ammunition, and a ski mask. Police also found a fourth gun, a .38-caliber revolver with matching ammunition and an attached laser sight that had been stolen in a burglary in the City of Marina in 1995. Defendant was convicted of first degree burglary (§ 459), but imposition of sentence was suspended and he was sentenced to five years’ probation on the condition he serve 180 days in jail. He was, however, granted an early release, with 117 days suspended, so that he could begin his freshman year at the University of California, Santa Barbara (UCSB).
Later that same year (1996), defendant was arrested and convicted of misdemeanor petty theft and second degree burglary for stealing four CD-ROM games, batteries, and cables from the UCSB bookstore. (§§ 484, subd. (a), 459, 460, subd. (b), 461, subd. 2.) The total value of the stolen merchandise was about $184. He was sentenced to three years’ probation on the condition he serve 30 days in jail, which was suspended until the end of the school year.
In February 1997, defendant’s parents gave him some money to buy groceries before returning to college. He went to a Costco store in Monterey County with two younger friends, one a juvenile. They proceeded to shoplift three prepaid telephone cards and a video game. They acted in concert, two of them using their bodies to shield the third from other customers while packages were opened. The trio then purchased other items and attempted to leave the store. Their activities had been observed by security personnel, however, and security guards detained them. Costco recovered the stolen merchandise, which was valued in the aggregate at less than $100.
As a result of this last incident, the People charged defendant with felony burglary for the Costco crimes (§ 459), a strike (§ 1170.12, subd. (c)(1)) for the tool shed burglary, a misdemeanor petty theft with a prior (§§ 666/484), and misdemeanor contributing to the delinquency of a minor (§ 272). Defendant negotiated a plea bargain in which he would plead guilty to felony petty theft with a prior theft-related conviction and admit the strike allegation. In exchange, the prosecution agreed to dismiss the charges of felony burglary and misdemeanor contributing to the delinquency of a minor. Significantly, in connection with this plea, defendant personally executed a written waiver of rights and placed his initials next to several statements, including this one: “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.”
The trial court accepted the plea and noted in the record that it would reserve jurisdiction to strike the prior serious felony allegation at the time of sentencing. At sentencing in October 1997, the trial court struck the strike allegation and sentenced defendant to the upper term of three years for felony petty theft with a prior and to the lower term of two years, to be served concurrently, for violating his probation in the Monterey County tool shed burglary case.

B. Subsequent Federal Proceedings and Defendant’s Responses

Defendant’s 1997 plea to felony petty theft with a prior theft-related conviction plunged him into a labyrinth of legal problems. On December 16, 1998, the Immigration and Naturalization Service (INS)^[2] initiated proceedings for defendant’s mandatory deportation based on his status as an alien who has been convicted of an “aggravated felony,”^[3] which for deportation purposes is defined as “a theft offense . . . or burglary offense for which the term of imprisonment [is] at least one year.” (8 U.S.C. § 1101(a)(43)(G).) A few months later, on February 1, 1999, defendant completed his three-year term (reduced by applicable credits) and was released on parole. He was detained by the INS the next day (Kim v. Ziglar (9th Cir. 2002) 276 F.3d 523, 526) and held in federal custody without bond. He was eventually released from INS custody on August 20, 1999.
Defendant successfully completed his three-year parole on February 1, 2002. On August 16 of that year, the INS filed an amended charging document, alleging that in addition to mandatory removal, defendant was also subject to discretionary removal due to his having been convicted of two crimes involving moral turpitude: the tool shed burglary and the Costco felony petty theft with a prior. (8 U.S.C. § 1227(a)(2)(A)(ii).)^[4]
Defendant then began filing collateral challenges to his various state convictions in an attempt to eliminate them as the basis for deportation. In 2003, he filed a nonstatutory motion to vacate his three-year sentence (but not the actual convictions) for the Costco petty theft with a prior and the concurrent two-year sentence for the tool shed burglary. Although both sentences had been served, he claimed that when he entered his plea, he did not know the sentences would subject him to mandatory deportation by the INS. When the trial court asked the prosecutor whether he opposed the motion, the prosecutor replied: “No. I just want to say we’re not opposing it. That’s as far into it as I want to get.” The trial court granted the motion, vacated the sentences, and resentenced defendant to serve a one-day probation on the condition he serve 364 days in jail, with credit for time served.^[5] The result of this resentencing was that defendant served no additional time in prison (having already served a full three-year sentence), but his official sentence for the Costco crimes was now modified to be one day short of a year, thereby avoiding having either crime characterized as an aggravated felony for immigration purposes.^[6]
As a result of this retroactive resentencing, the INS amended its charging document, dismissing the allegation of mandatory removal based on the aggravated felony conviction (8 U.S.C. § 1227(a)(2)(A)(iii)) and clarifying that it was proceeding only on the basis of discretionary removal as a result of defendant’s two convictions involving moral turpitude (8 U.S.C. § 1227(a)(2)(A)(ii)). The elimination of the allegation based on an aggravated felony conviction opened another avenue of possible relief for defendant in that he became eligible to move for cancellation of removal.^[7] He so moved, and on June 27, 2003, a federal immigration judge granted his motion, thereby permitting him to remain in the country. On the INS’s appeal to the Board of Immigration Appeals (BIA), however, the BIA reversed, concluding it was “unconvinced that [defendant’s] long residence in the United States, his family ties and his rehabilitation outweigh his substantial criminal history and recidivism.” Consequently, the BIA ordered defendant “removed from the United States to South Korea.”
Despite this setback, defendant continued his efforts to avoid deportation. First, he filed a petition for a writ of habeas corpus in federal district court. That matter has since been removed to the Ninth Circuit Court of Appeals under the REAL ID Act of 2005.^[8] Second, he began proceedings to vacate his remaining state court convictions. On October 19, 2004, the Santa Barbara County Superior Court granted his motion to vacate his misdemeanor convictions for petty theft and second degree burglary stemming from his thefts at the UCSB campus bookstore. The same court later dismissed both charges. Having ameliorated the effect of his convictions for petty theft with a prior (the Costco crimes) and burglary (the tool shed crime) by having his aggregate sentence reduced to less than one year, and having obtained dismissal of his Santa Barbara misdemeanor theft-related convictions, all that remained for defendant to do was to obtain dismissal of his Costco conviction for petty theft with a prior, which would leave him with only a single conviction for a crime of moral turpitude (the tool shed burglary) and thus ineligible for removal from the country (because 8 U.S.C. § 1227(a)(2)(A)(ii) requires convictions of “two or more crimes involving moral turpitude”. That brings us to the present proceeding.

C. The Proceedings Below

On July 8, 2005, defendant filed two motions in Monterey County Superior Court. The first, termed a “MOTION TO VACATE JUDGMENT (CORAM NOBIS),” sought to vacate his 1997 guilty plea to felony petty theft with a prior theft-related conviction (the Costco crimes) on the ground that the judgment was “based on a mistake of fact, in that no one knew: [¶] (a) South Korea was incarcerating Jehovah’s Witnesses (like Mr. Kim) for three years in prison for refusing on religious grounds to serve in the military, and that Mr. Kim would face that fate if deported as a result of this plea; [¶] (b) the problem that the plea of guilty would cause defendant’s deportation, even without a sentence of one year in custody; or [¶] (c) the solution that an equivalent plea to burglary under Penal Code section 459, if properly framed, would not cause this result, and if these facts had been known to court and counsel, the plea would not have been entered. . . . [¶] The plea was therefore not knowing, intelligent, free or voluntary, and was void ab initio in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and parallel provisions of the California Constitution.” (Original italics and underscoring.)
The second motion, termed a “NON-STATUTORY MOTION AND MOTION TO VACATE JUDGMENT,” sought to vacate the same 1997 guilty plea on different grounds. This motion alleged defendant’s state and federal constitutional rights were violated because his trial counsel “rendered ineffective assistance of counsel for his failure adequately to investigate the immigration consequences of the conviction” and also “for his failure to defend Mr. Kim against a plea that would result in mandatory deportation or to make any effort to get an equivalent nondeportable conviction.”
In support of these motions, defendant’s then trial attorney, Thomas Worthington, provided a declaration stating that at the time of defendant’s pleas, counsel “was unaware . . . that a conviction of petty theft with a prior conviction would be considered a ‘crime of moral turpitude’ by the immigration authorities, and trigger deportation for Mr. Kim, exposing him to arrest by the immigration authorities, requiring him to post a bond and hire immigration counsel, and resulting in his mandatory deportation if he was unsuccessful in obtaining a waiver of deportation. Therefore, I did not advise Mr. Kim of the actual adverse immigration consequences of this plea. [¶] . . . If I had been aware that an alternative plea to burglary, in the language of the statute, entry with intent to commit ‘theft or any felony,’ would have avoided deportation on account of a crime of moral turpitude conviction, I believe there is a reasonable probability the prosecution and [trial] court would have been willing to agree to this plea.”
In a joint opposition to both motions, the prosecution argued it would have been improper to change the wording of the plea in order to thwart the immigration consequences flowing from the plea, that no mistake of fact supports issuance of a writ of error coram nobis, that evidence of defendant’s religious beliefs is not relevant, that a correction nunc pro tunc is inappropriate because defendant does not seek to correct a clerical error, that no court authority exists to grant a nonstatutory motion to vacate and to withdraw the plea, that defense counsel was not ineffective, and that the trial court should not attempt to nullify the order of another court (i.e., the BIA). In support, the prosecutor in defendant’s petty theft case, Charles Olvis, provided a declaration stating: “I would not have agreed to allow the defendant to plead to a charge to assist the defendant in thwarting actual or potential immigration consequences. I specifically would not have agreed to a plea to a felony violation . . . with the altered language to reflect ‘any felony.’ I believe that a criminal conviction should appropriately reflect the criminal conduct engaged in by the defendant.”
After a hearing, the trial court granted both motions. Regarding the nonstatutory motion to vacate, the court explained: “[T]he Court does find that — and based in no small part on Mr. Worthington’s own declaration in that regard — that given the facts presented in this case, the fact that the defendant is a Korean, that was known at the time. It was clear that there was some belief that there was — there were ties to Korea and even some possibility of him leaving the country for Korea, that immigration should have probably been an issue. [¶] As to the prejudice, based on my 30-plus years of experience in this business, I believe it’s not only reasonably possible but frankly highly likely that had Mr. Worthington realized what the situation was, he would have been able to find a way to avoid the immigration consequences of . . . the defendant’s conduct. I base that in part on actually Judge Curtis’s remarks at the time of sentencing . . . wherein he actually demonstrates some sympathy for and some optimism for the defendant’s future in striking the strike. . . . [¶] So the Court does find that there is prejudice, given the facts and circumstances of this particular case, and that it’s likely Mr. Worthington would have had an opportunity to prevail on either or probably both the [prosecutor] and Judge Curtis in part in arriving at a disposition that . . . would not have incurred the consequences that Mr. Kim faces at this time.” The trial court granted the petition for a writ of error coram nobis as well, explaining: “I don’t know if it’s necessary for the Court to even rule on that at this point, but for the sake of the record, the Court — I must say I’m a lot less sanguine about the distinctions between a mistake of fact and mistake of law and how you categorize those. But so the record is clear, the Court grants that motion as well on the grounds that there was a mistake in fact which materially affected the result.”
The Court of Appeal reversed, and we granted review.

II. Discussion

A. The Writ of Error Coram Nobis

1. Background

The writ of error coram nobis is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown.^[9] “Far from being of constitutional origin, the ‘proceeding designated “coram nobis” . . .’ . . . was contrived by the courts at an early epoch in the growth of common law procedure to provide a corrective remedy ‘because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment.’ ” (People v. Sica (1953) 116 Cal.App.2d 59, 62.) The grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower than on habeas corpus (In re Lindley (1947) 29 Cal.2d 709, 724-725); the writ’s purpose “is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court” (People v. Adamson (1949) 34 Cal.2d 320, 326-327).
We described the writ of error coram nobis in People v. Reid (1924) 195 Cal. 249:^[10] “The principal office of the writ of error coram nobis was to enable the same court which had rendered the judgment to reconsider it in a case in which the record still remained before that court. The conventional language of this writ in the King’s Bench makes reference to the record ‘which remains before us [the king], quae coram nobis resident.’ In the Common Pleas the form of the writ was [‘]coram vobis,’ ‘before you’ (the judges). The most comprehensive statement of the office and function of this writ which has come to our notice is the following . . . : ‘The office of the writ of coram nobis is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian, or coverture, where the common-law disability still exists, or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake; these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned.’ ” (Id. at pp. 254-255.)
We long ago emphasized the limited nature of this legal remedy. Quoting from an old treatise, we opined the writ of error coram nobis “ ‘does not lie to correct any error in the judgment of the court nor to contradict or put in issue any fact directly passed upon and affirmed by the judgment itself. If this could be, there would be no end of litigation. . . . The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment; and which without fault or negligence of the party, was not presented to the court.’ ” (People v. Mooney (1918) 178 Cal. 525, 528.) As one Court of Appeal described it: “It is not a writ whereby convicts may attack or relitigate just any judgment on a criminal charge merely because the unfortunate person may become displeased with his confinement or with any other result of the judgment under attack.” (People v. Hayman (1956) 145 Cal.App.2d 620, 623.)
With the advent of statutory new trial motions, the availability of direct appeal, and the expansion of the scope of the writ of habeas corpus, writs of error coram nobis had, by the 1930’s, become a remedy “practically obsolete . . . except in the most rare of instances” (People v. Lumbley (1937) 8 Cal.2d 752, 755) and applicable to only a “very limited class of cases” (People v. Sandoval (1927) 200 Cal. 730, 737). (See Prickett, The Writ of Error Coram Nobis in California (1990) 30 Santa Clara L.Rev. 1, 14-24; 6 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Judgment, § 182, p. 211 [“the statutory motion for new trial has, for most purposes, superseded the common law remedy; and, until recent years, coram nobis was virtually obsolete in California”].)
The seminal case setting forth the modern requirements for obtaining a writ of error coram nobis is People v. Shipman (1965) 62 Cal.2d 226. There we stated: “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. . . .’ ” (Id. at p. 230.) These factors set forth in Shipman continue to outline the modern limits of the writ. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.)
Several aspects of the test set forth in Shipman illustrate the narrowness of the remedy. Because the writ of error coram nobis 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.” (People v. Banks (1959) 53 Cal.2d 370, 378; see People v. McElwee, supra, 128 Cal.App.4th at p. 1352 [defendant’s belief he would serve only 15 years in prison “was not a mistake of fact but one of law”].) Moreover, the allegedly new fact must have been unknown and must have been in existence at the time of the judgment. (People v. Shipman, supra, 62 Cal.2d at p. 230.)
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. “It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts.” (People v. Banks, supra, 53 Cal.2d at p. 378.)
Finally, the writ of error coram nobis is unavailable when a litigant has some other remedy at law. “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.” (People v. Blalock (1960) 53 Cal.2d 798, 801; see People v. Howard (1965) 62 Cal.2d 237, 238 [claims could have been raised on direct appeal]; People v. Adamson, supra, 34 Cal.2d at p. 327 [claims should have been raised in a petition for a writ of habeas corpus].) “The writ of error coram nobis is not a catch-all by which those convicted may litigate and relitigate the propriety of their convictions ad infinitum. In the vast majority of cases a trial followed by a motion for a new trial and an appeal affords adequate protection to those accused of crime. The writ of error coram nobis serves a limited and useful purpose. It will be used to correct errors of fact which could not be corrected in any other manner. But it is well-settled law in this and in other states that where other and adequate remedies exist the writ is not available.” (People v. Martinez (1948) 88 Cal.App.2d 767, 774.)
A quick perusal of the types of situations in which the writ of error coram nobis has issued illustrates these limitations. Thus, the writ has issued in these circumstances: “Where the defendant was insane at the time of trial and this fact was unknown to court and counsel [citations].^[[11]] Where defendant was an infant and appeared by attorney without the appointment of a guardian or guardian ad litem [citations]. Where the defendant was a feme covert and her husband was not joined [citation]. Where the defendant was a slave and was tried and sentenced as a free man [citation]. Where the defendant was dead at the time judgment was rendered [citations]. Where default was entered against a defendant who had not been served with summons and who had no notice of the proceeding [citations]. Where counsel inadvertently entered an unauthorized appearance in behalf of a defendant who had not been served with process [citation]. Where a plea of guilty was procured by extrinsic fraud [citation]. Where a plea of guilty was extorted through fear of mob violence [citations]. Where defendants and their counsel were induced by false representations to remain away from the trial under circumstances amounting to extrinsic fraud [citation]. Where by the failure of the clerk to properly file an answer the party was deprived of his defense [citation].” (People v. Reid, supra, 195 Cal. at pp. 258-259.) More recently, a lower federal court granted coram nobis relief where, many years after the fact, a Japanese-American plaintiff convicted of a misdemeanor for failing to report to a civilian control center in preparation for internment during World War II proved the federal government had intentionally suppressed favorable evidence showing the absence of any military necessity for removing those of Japanese ancestry from the West Coast. (Hirabayashi v. United States (W.D.Wn. 1986) 627 F.Supp. 1445, affd. in part & revd. in part (9th Cir. 1987) 828 F.2d 592.)
By contrast, the writ of error coram nobis was found unavailable in the following situations: where trial counsel “improperly induced” the defendant to plead guilty to render him eligible for diversion and the trial court eventually denied diversion (In re Nunez (1965) 62 Cal.2d 234, 236); where the defendant pleaded guilty to having a prior felony conviction when he was eligible to have the prior reduced to a misdemeanor (People v. Banks, supra, 53 Cal.2d at p. 379 [mistake of law]); where the defendant discovered new facts that would have bolstered the defense already presented at trial (People v. Tuthill (1948) 32 Cal.2d 819, 827 [concluding that although the new facts “would have been material and possibly beneficial to the defendant” at trial, they would not have precluded entry of the judgment]); where the defendant mistakenly believed his plea to second degree murder meant he would serve no more than 15 years in prison (People v. McElwee, supra, 128 Cal.App.4th at p. 1352 [this was “not a mistake of fact but one of law”]); where the defendant claimed neither his attorney nor the court had advised him before he pleaded that his convictions would render him eligible for civil commitment under the Sexually Violent Predators Act (SVPA) (People v. Ibanez (1999) 76 Cal.App.4th 537, 546 [“[d]efendant’s ignorance regarding the potential for civil commitment under the SVPA is a legal, not a factual, question”]); and where the defendant challenged “the legality of his arrest, the identity of the informant, and the failure of the court to make findings on the prior convictions” (People v. Del Campo (1959) 174 Cal.App.2d 217, 220 [coram nobis denied on the ground that “[a]ll of these matters could have been raised on appeal”].)
Likewise any number of constitutional claims cannot be vindicated on coram nobis. (See, e.g., People v. Howard, supra, 62 Cal.2d at p. 238 [claim of an unconstitutional sentence and inadequate representation]; People v. Blalock, supra, 53 Cal.2d at p. 801 [double jeopardy]; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [ineffective assistance of counsel]; People v. Parseghian (1957) 152 Cal.App.2d 1, 3 [improper admission of evidence]; see generally Prickett, The Writ of Error Coram Nobis in California, supra, 30 Santa Clara L.Rev. at pp. 24-28.)
We now apply these rules to the trial court’s decision to issue a writ of error coram nobis, mindful that a lower court’s ruling on a petition for the writ is reviewed under the abuse of discretion standard. (People v. McElwee, supra, 128 Cal.App.4th at p. 1352; People v. Ibanez, supra, 76 Cal.App.4th at p. 544; cf. People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 [trial court’s ruling on the defendant’s motion to vacate his conviction under § 1016.5 reviewed for abuse of discretion].)

2. Application to This Case

a. Procedural bars to relief

Defendant contends he is eligible for a writ of error coram nobis as a result of two distinct mistakes of fact that, he claims, undermine the validity of his guilty plea to felony petty theft with a prior theft-related conviction. First, he claims he “was not aware, prior to entering his plea, of the fact that his plea to a petty theft with a prior would qualify as a ‘crime of moral turpitude’ and subject him to deportation to South Korea.” Second, he contends he did not know at the time of his plea that “if deported, he would almost certainly face religious persecution, including beatings and imprisonment by the authorities because of his religious objections to serving in the South Korean army.” In his nonstatutory motion to vacate his plea, he also contends he is entitled to relief because Worthington, his trial counsel, was constitutionally ineffective in failing to adequately investigate the true immigration consequences of defendant’s plea, and in failing to arrange for defendant to plead to a nondeportable offense.
As a nonstatutory motion to vacate has long been held to be the legal equivalent of a petition for a writ of error coram nobis (People v. Shipman, supra, 62 Cal.2d at p. 229, fn. 2; People v. Adamson, supra, 34 Cal.2d at p. 325), we consider these claims together.
Before we turn to the merits of these claims, however, we find defendant’s entitlement to the writ fails at the threshold for three distinct procedural reasons. First, he has not satisfied the requirement that he show due diligence when seeking such extraordinary relief. “It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis” (People v. Shorts (1948) 32 Cal.2d 502, 512; see People v. Carty (2003) 110 Cal.App.4th 1518, 1528), and the burden falls to defendant “to explain and justify the delay” (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618). “[W]here a defendant seeks to vacate a solemn judgment of conviction . . . the showing of diligence essential to the granting of relief by way of coram nobis should be no less than the similar showing required in civil cases where relief is sought against lately discovered fraud. In such cases it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts, or of the legal conclusion of diligence, is insufficient.” (Shorts, at p. 513, italics added; see also People v. Shipman, supra, 62 Cal.2d at p. 230 [defendant “ ‘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’ ”].)
This diligence requirement is analogous to that which we apply to petitions for writs of habeas corpus, where we require a petitioner to set forth with specificity when the “petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.” (In re Robbins (1998) 18 Cal.4th 770, 780.) Indeed, we previously have recognized that petitions for writs of habeas corpus and error coram nobis are essentially identical in this regard. (In re Clark (1993) 5 Cal.4th 750, 779 [“a habeas corpus petitioner, like a petitioner who mounts a collateral attack by petition for writ of [error] coram nobis,” must allege facts showing due diligence].)

TO BE CONTINUED AS PART II….

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