People v. Villa

• Citation: 56 Cal.Rptr.3d 56,148 Cal.App.4th 473
• Decision Date: 09 March 2007
• Docket Number: No. A111891.,A111891.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Avelino Ceja VILLA, Defendant and Appellant.

56 Cal.Rptr.3d 56

148 Cal.App.4th 473

The PEOPLE, Plaintiff and Respondent, v. Avelino Ceja VILLA, Defendant and Appellant.

No. A111891.

Court of Appeal, First District, Division 3.

March 9, 2007.

Rodney Richard Jones, under appointment by the Court of Appeal, for Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Christopher J. Wei, Deputy Attorney General, for Respondent.

SIGGINS, J.

Avelino Ceja Villa appeals from an order denying his petition for a writ of error coram nobis. In his petition, Villa sought to vacate a judgment resulting from a guilty plea entered in 1989, claiming he received incorrect advice from his attorney regarding the immigration consequences of his guilty plea. He also contended his plea was entered in violation of a treaty requiring a foreign national to be advised of the right to contact his or her country's consulate upon being arrested. Villa's California sentence has expired and he is no longer in the physical custody of California authorities as a result of his 1989 conviction which conviction allegedly serves as the sole basis for federal proceedings instituted in 2005 to deport Villa, a Mexican citizen. On appeal, Villa argues that the trial court abused its discretion by summarily denying his petition.

A claim of ineffective assistance of counsel is not cognizable on coram nobis. Moreover, even though we recognize Villa's ability to pursue his ineffective assistance claim in a petition for a writ of habeas corpus, Villa does not adequately allege a basis for habeas corpus relief. He does not allege that he is in custody or restrained of his liberty solely on account of the California conviction. Accordingly, we affirm.

Factual and Procedural Background

On June 6, 1989, Villa pled guilty to one count of possession of cocaine for sale (Health & Saf.Code, § 11351). The trial court suspended imposition of Villa's sentence and placed him on three years' probation. His term of probation has long since expired.

In August 2005, the United States Bureau of Immigration and Customs Enforcement (ICE)¹ commenced removal proceedings under the Immigration and Nationality Act (INA) based on Villa's 1989 conviction, which qualifies as an aggravated felony under the INA.² (See 8 U.S.C. §§ 1101(a)(43)(B), 1229a.) The record contains no indication of what prompted immigration authorities to initiate the removal proceedings. On September 26, 2005, while he was in a county detention facility in Alabama,³ Villa filed a pro se petition for a "writ of coram-nobis and/or motion to vacate judgment of conviction" in the Alameda County Superior Court. The petition sought to vacate the 1989 judgment of conviction based in part on the allegation that Villa received ineffective assistance of counsel concerning the immigration consequences of his plea. Villa also alleged that the judgment was entered in violation of the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes of April 24, 1963 (21 U.S.T. 77, T.I.A.S. No. 6820) (the Vienna Convention). In particular, he claimed he was not informed of his right under the Vienna Convention to contact the Mexican Consulate after his arrest.⁴ In an affidavit supporting the petition, Villa indicated that his trial attorney advised him he would not be deported due to the non-custodial nature of his sentence. His defense counsel also purportedly told Villa that proceeding to trial would mean spending extra weeks or months in jail. Out of concern for his family and work obligations, Villa accepted the plea bargain. Villa stated in his affidavit that he would have either sought to negotiate a plea preserving his immigration status or taken the matter to trial if he had been properly informed of the immigration consequences of his plea.

The trial court summarily denied Villa's, petition as untimely. The court further stated in its denial order that even if the petition were timely or otherwise exempt from timeliness requirements, the "moving papers submitted fail to state a prima facie case for relief either for writ of coram nobis or motion to vacate." The court pointed out that Villa was properly advised of the immigration consequences of his plea by the court at the time of his plea. It also stated that Villa had submitted nothing demonstrating ineffective assistance of counsel, finding that the case against Villa was "extremely strong, his activity committed in sight of law enforcement." The trial court concluded that Villa failed to show he was prejudiced by his plea. Villa filed a timely notice of appeal.

DISSUSSION

"A trial court's denial of a coram nobis petition is an appealable order, unless the coram nobis petition failed to state a prima facie case for relief, or the petition raised issues that were, or could have been, raised in other proceedings." (People v. Dubon (2001) 90 Cal.App.4th 944, 950, 108 Cal.Rptr.2d 914.) "We review a trial court's denial of a petition for writ of error coram nobis for abuse of discretion." (Id. at p. 951, 108 Cal.Rptr.2d 914.)

1. Claims Under the Vienna Convention

At the outset, we can easily dismiss Villa's contention the trial court erred in rejecting his claim that his plea was entered in violation of rights afforded him under the Vienna Convention. First, the Vienna Convention does not create a personal right of constitutional dimension. (Murphy v. Netherland (4th Cir.1997) 116 F.3d 97, 99-100.) Hence, the acceptance of Villa's guilty plea without proper advice under the Vienna Convention does not invalidate the judgment. Second, to the extent Penal Code section 834c, subdivision (a)⁵ requires a foreign national to be advised of the right to contact his or her country's consulate, the advice is to be given by the arresting officer.⁶ There is no evidence in the record that the arresting officer failed to comply with this requirement. Finally, the issue may not be raised for the first time by a petition for a postjudgment writ but must instead be raised on direct appeal after the conviction. (Breard v. Greene (1998) 523 U.S. 371, 375-376, 118 S.Ct. 1352, 140 L.Ed.2d 529.) In Breard the United States Supreme Court noted that "[e]ven were [the] Vienna Convention claim properly raised and proved, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the [outcome of a defendant's criminal case]." (Id. at p. 377, 118 S.Ct. 1352.) Villa has failed to make any such showing in this case. Because Villa's claim premised on the Vienna Convention does not state a prima facie case for relief and must have been raised, if at all, on direct appeal, coram nobis does not lie to correct the purported error.

2. The Unavailability of Coram Nobis

Villa disputes the trial court's ruling concerning his ineffective assistance of counsel claim, arguing that his petition was timely and stated a prima facie case for relief justifying an evidentiary hearing. The Attorney General contends there was no error because Villa's ineffective assistance claim is not cognizable in a coram nobis petition. Before we may consider the merits of Villa's claim, we must address the Attorney General's contention.

"In this state coram nobis is a limited remedy of narrow scope which is available (where no other remedy exists) to secure relief 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. Sharp (1958) 157 Cal.App.2d 205, 207, 320 P.2d 589.) "A writ of error coram nobis may be granted when three requirements are met: (1) the petitioner has shown that some fact existed which, without fault of his own, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of judgment; (2) the petitioner has shown that the newly discovered evidence does not go to the merits of the issues tried; and (3) the petitioner has shown 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." (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618-1619, 44 Cal.Rptr.2d 666.)

"The writ lies to correct only errors of fact as distinguished from errors of law."⁷ (People v. Sharp, supra, 157 Cal.App.2d at p. 207, 320 P.2d 589; see also People v. Blalock (1960) 53 Cal.2d 798, 801, 3 Cal.Rptr. 137, 349 P.2d 953.) Here, the error was the allegedly erroneous advice by defense counsel about the immigration consequences of Villa's guilty plea. "`"A mistake of fact" is where a person understands the facts to be other than they are; whereas a "mistake of law" is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts.'" (People v. LaMarr (1942) 20 Cal.2d 705, 710, 128 P.2d 345.) A mistaken belief about the legal consequences of Villa's immigration status was a mistake of law, not a mistake of fact, and does not meet the criteria for review by coram nobis.

Furthermore, "[a]s a general proposition, review of constitutional issues is outside the ambit of coram nobis." (Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L.Rev. 1, 25.) Thus, "lack of counsel or effective aid of counsel are not properly raised by a petition for a writ of error coram nobis" (People v. Sharp, supra, 157 Cal.App.2d at p. 208, 320 P.2d 589; see also People v. Howard (1965) 62 Cal.2d 237, 238, 42 Cal. Rptr. 7, 397 P.2d 999 [petition that included ineffective assistance claim did not meet requirements for coram, nobis ].) In ...