Filed 8/29/16 P. v. Garcia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, D068728 Plaintiff and Respondent, v. (Super. Ct. No. SCD207356) JESUS ALEJANDRO GARCIA, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kathleen M.

Lewis, Judge. Affirmed.

J. Michael Kusnir for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Scott C. Taylor and Daniel John Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

In August 2007, Jesus Alejandro Garcia pleaded guilty to one count of unlawful sexual intercourse with a minor more than three years younger than himself (Pen. Code,1

FACTUAL AND PROCEDURAL BACKGROUND On August 23, 2007, Garcia pleaded guilty to one count of unlawful sexual intercourse with a minor more than three years younger than himself. Though he initialed several boxes on his plea agreement form indicating the consequences of his guilty plea, he did not initial box 7d indicating that his plea could result in his removal or deportation.2 At Garcia's plea hearing, Garcia responded in the affirmative when the court asked him if he had talked to his lawyer to discuss his rights, the contents of the change of plea form, and the consequences of his plea. In response to the court's questions, Garcia agreed he had signed the form and initialed the boxes after he read and understood the contents and after he talked to his lawyer. The court told Garcia: "If you're not a United States citizen, you can be deported, denied admission into the United States and denied naturalization as a result of this plea. [¶] Do you understand that?"

Garcia responded, "Yes Ma'am." In November 2007, the court sentenced Garcia to three years of formal probation on the condition that he serve 90 days in the custody of the sheriff.

About seven and a half years later, in March 2015, Garcia filed a motion to vacate his judgment in the form of a petition for writ of error coram nobis. Asserting that immigration proceedings had been brought against him, Garcia argued the record of his plea form, which showed the absence of his initials in box 7d on page two of the form and a line drawn through the box, showed he was not advised his plea could have negative consequences in any later immigration proceedings. According to Garcia, "[t]his indicates thought was put into the Pleading Form by counsel and the proper advice as to immigration status was not given." Garcia also submitted a declaration asserting on information and belief that his brother and two other individuals were in a sexual relationship with the victim but his brother was not subjected to DNA testing. He averred that his counsel did not advise him there could be immigration consequences arising from his plea, and he did not recall the court giving him an immigration advisal.

The People opposed the motion. They argued Garcia had received a sufficient advisement of the immigration consequences of his plea before he entered into it and his claim was not cognizable on a writ of coram nobis. They argued his ineffective assistance of counsel claim was likewise procedurally barred, but Garcia additionally could not demonstrate prejudice in view of the court's oral admonition. Finally, the People argued Garcia's claim of new information was meritless and his nearly eight-year delay rendered it untimely for purposes of coram nobis review; specifically, they asserted the victim's relationship with his brother was not newly discovered and presented evidence that Garcia's brother was in fact DNA tested for paternity purposes.

The trial court denied Garcia's motion, ruling the superior court judge at the plea hearing properly advised him of the immigration consequences of his plea, and the court's admonishment substantially complied with section 1016.5. Garcia filed this appeal, challenging the validity of his plea.

DISCUSSION I. Garcia is Not Entitled to Relief Via a Writ of Error Coram Nobis "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. . . . The grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower than on habeas corpus [citation]; 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' [citation]." (People v. Kim (2009) 45 Cal.4th 1078, 1091 (Kim), fn. omitted.)

The writ " '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 . . . ." ' " (Kim, supra, 45 Cal.4th at p. 1093, quoting People v. Shipman (1965) 62 Cal.2d 226, 230.) Coram nobis does not lie to enable the court to correct errors of law, including claims of ineffective assistance of counsel. (Kim, at p. 1093.)

Here, Garcia has not demonstrated that facts existed at the time of his plea satisfying the strict requirements for such relief from a final judgment. That is, he has not shown " ' "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." ' " (Kim, supra, 45 Cal.4th at pp. 1102, 1103.)

Garcia makes factual assertions that his brother was in a sexual relationship with the victim and not subjected to DNA testing. We note that these assertions are contradicted by the June 4, 2007 DNA analysis report submitted by the People. But Garcia makes no effort to establish with any specificity when he learned of these asserted facts (accord, Kim, at pp. 1098-1099), or show they could not have been discovered by him with diligence at any time substantially earlier than the time of his motion, which was filed nearly eight years after his conviction and sentencing. (Kim, at pp. 1093, 1099 [coram nobis relief barred where defendant "fails to allege with specificity 'the time and circumstances under which the facts were discovered' so as to permit th[e] court to 'determine as a matter of law whether [defendant] proceeded with due diligence' "].)

Absent a showing of the requisite facts and diligence, Garcia's claim fails on this procedural ground alone.

Garcia's claim otherwise that his counsel was constitutionally ineffective for failing to advise him of the immigration consequences of his plea "relates more to a mistake of law than of fact" and courts have long held it is an inappropriate ground for coram nobis relief. (Kim, supra, 45 Cal.4th at p. 1104; see also People v. Aguilar (2014) 227 Cal.App.4th 60, 64, 69-70.) Garcia's claims provide no grounds for coram nobis relief.

II. Garcia Is Not Entitled to Relief Under Section 1016.5 or Padilla v. Kentucky A. Padilla v. Kentucky Garcia further maintains he is entitled to relief under section 1016.5 and Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), which California codified in 2016. (§ 1016.2; Stats. 2015, ch. 705, § 1.) He maintains such relief is warranted because his counsel did not advise him he could be subject to deportation or exclusion as a result of his guilty plea, and additionally, the court did not point out the discrepancy between the pleading form and its oral admonishment.

Garcia's reliance on Padilla as a basis for his motion is unavailing. In Padilla, the United States Supreme Court held counsel's affirmative misadvice or failure to advise a defendant about the potential immigration consequences of a plea constitutes ineffective assistance of counsel. According to the court it was "quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so 'clearly satisfies the first prong of the Strickland [v. Washington (1984) 466 U.S. 668] analysis.' " (Padilla, supra, 559 U.S. at p. 371.) But Padilla "did not hold that such a claim may be brought long after [the defendant's] right to pursue available remedies [has] lapsed." (People v. Aguilar, supra, 227 Cal.App.4th at p. 73 [Padilla does not support an argument "that an unlabelled nonstatutory motion affords [a defendant] a remedy when, as here, relief by way of coram nobis is foreclosed as a matter of law"]; see also People v. Shokur (2012) 205 Cal.App.4th 1398, 1401.)3 Even if that were not the case, Padilla was decided three years after Garcia's conviction, and since then the United States Supreme Court has held that Padilla does not apply to defendants whose convictions became final before Padilla was decided. (Chaidez v. United States (2013) ___ U.S. ___ [133 S.Ct. 1103, 1113].)

B. Section 1016.5 Nor is Garcia entitled to relief under section 1016.5, which requires a trial court to explain to a defendant if he is not a citizen of this country that conviction of the charged offense "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." (§ 1016.5, subd. (a); see also People v. Arriaga (2014) 58 Cal.4th 950, 962.) A motion

Garcia has no other remedy available to him for his claims. He makes no claim that he is in actual or constructive custody for purposes of habeas corpus relief. (See People v. Villa (2009) 45 Cal.4th 1063, 1076; People v. Aguilar, supra, 227 Cal.App.4th 9 at p. 68.) The time to appeal his August 2007 plea or November 2007 sentence has long passed. (§§ 1237, 1239.) The court did not err by denying Garcia's petition.

DISPOSITION The order is affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.