P. v. Valdes

Filed 6/25/02
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAFAEL ANGUIANO VALDES,
Defendant and Appellant.
G027216
(Super. Ct. No. 95SF0531)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange
County, Kazuharu Makino, Judge. Dismissed.
Law Offices of James C. Angleton and James C. Angleton for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey
J. Koch and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
Defendant Rafael Anguiano Valdes, a Mexican-born permanent
resident of the United States, appeals from an order denying his petition for writ of

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error coram nobis and motion to vacate judgment. This proceeding arose from
defendant’s 1995 felony guilty plea. Defendant contends the nature and temporal
proximity of his crimes, combined with his failure to timely rehabilitate and the
punishment ultimately imposed on him, renders the prospect of adverse
immigration consequences a certainty for him. Thus, he argues the “pro forma
warning” of “possible” consequences required by Penal Code section 1016.5 was
inadequate and entitles him to vacate his plea and conviction. The Attorney
General seeks dismissal of the appeal, arguing defendant could have raised this
issue in earlier direct appeals. We agree and dismiss the appeal.
FACTS
In August 1995, defendant pleaded guilty in superior court to
spousal battery, vandalism, assault, and battery, and admitted suffering a prior
conviction for spousal battery. Before entering the plea, he initialed and signed a
guilty plea form which contained a paragraph stating: “I understand that if I am
not a citizen of the United States the conviction for the offense[s] charged may
have the consequence of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the United States.”
Defendant represented to the court that he “listened to [a Spanish language]
interpreter going over th[e] guilty plea form with [him].” The court placed
defendant on five years probation. Nineteen months later, after defendant
admitted violating the terms of probation, the court revoked it and imposed a two-
year prison sentence.
The United States Immigration and Naturalization Service served
defendant with a notice that it was seeking his removal from the country based on
his spousal battery conviction. Defendant asserts an immigration judge dismissed

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this charge. Subsequently, the INS amended the notice to allege defendant was
deportable because his spousal battery conviction and the resulting sentence
constituted an aggravated felony which rendered him deportable.
In November 1998, defendant filed motions pursuant to Penal Code
section 1385 alternatively seeking to dismiss the charges or have the crimes
declared misdemeanors. The court denied the requests. In 1999, defendant filed
two unsuccessful petitions for habeas corpus. He also filed a petition for writ of
error coram nobis, but the matter was taken off calendar before the court ruled
upon it. Each of these requests expressly recognized the potential adverse
immigration consequences to defendant resulting from his 1995 conviction.
Defendant filed a second petition for a writ of error coram nobis and
a motion to vacate the conviction under Penal Code section 1016.5 in March 2000.
The superior court denied relief on the merits.
DISCUSSION
The Attorney General contends the present appeal should be
dismissed. Respondent cites the general rule that no appeal lies from an order
denying a motion to vacate a judgment of conviction (see 6 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Criminal Appeal, § 53, pp. 299-300), and claims
defendant could have raised the same issue in a direct appeal from the original
judgment or the subsequent order revoking his probation.
A petition for writ of error coram nobis is viewed as “similar in
scope and effect” to a motion to vacate a judgment. (People v. Gallardo (2000)
77 Cal.App.4th 971, 982.) Nonetheless, cases hold an order denying the petition is
appealable unless it “fail[s] to state a prima facie case for relief, or the petition
raise[s] issues that were, or could have been, raised in other proceedings.

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[Citation.]” (People v. Dubon (2001) 90 Cal.App.4th 944, 950; see also People v.
Gallardo, supra, 77 Cal.App.4th at p. 982.)
The record reflects defendant cannot satisfy the writ’s prima facie
elements. “A writ of coram nobis is generally used to bring factual errors or
omissions to the court’s attention. [Citation.] ‘The writ will properly issue only
when the petitioner can establish three elements: (1) that some fact existed which,
without his fault or negligence, was not represented to the court at the trial and
which would have prevented the rendition of the judgment; (2) that the new
evidence does not go to the merits of the issues of fact determined at trial; and (3)
that he did not know nor could he have, with due diligence, discovered the facts
upon which he relies any sooner than the point at which he petitions for the writ.
[Citations.]’ [Citations.]” (People v. Ibanez (1999) 76 Cal.App.4th 537, 544.)
First, defendant does not explain the extended delay in seeking relief
from his guilty plea. He concededly knew the 1995 conviction imposed adverse
effects on his immigration status long before filing the current petition.
Second, there is no showing of a factual omission satisfying the
writ’s first element. Defendant premised his petition on a claim he did not receive
an accurate advisement of the prospective adverse immigration consequences
when he pleaded guilty in 1995. Before accepting a guilty plea, a court must, in
addition to advising the defendant of his or her constitutional rights and obtaining
a knowing and intelligent waiver of them, also advise the defendant of the direct
consequences of the plea. (People v. Walker (1991) 54 Cal.3d 1013, 1022; People
v. Wright (1987) 43 Cal.3d 487, 491-493.) Cases recognize the consequences of a
criminal conviction on a defendant’s immigration status constitute a collateral
consequence. (In re Resendiz (2001) 25 Cal.4th 230, 242-243; People v. Limones
(1991) 233 Cal.App.3d 338, 344.) But the Legislature has nonetheless concluded
the potential adverse immigration consequences to a noncitizen convicted of a

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state criminal offense is sufficiently important to enact Penal Code section 1016.5,
which declares defendants must be informed of the possibility a conviction could
result in deportation, exclusion from the United States, or a denial of citizenship.
Here, the statutory requirements were met. The record includes
defendant’s guilty plea form. The form, initialed and signed by defendant,
contained the required notice. It adequately advised him of all the potential
adverse immigrations consequences specified in Penal Code section 1016.5.
Although defendant claims he speaks little English, but often acts as though he
understands what is being said to him when in fact he does not, defendant does not
deny an interpreter read the form to him in Spanish. Finally, defendant expressly
admitted to the court the interpreter had reviewed the form with him.
DISPOSITION
The appeal is dismissed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
O’LEARY, J.

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