P. v. Prado

















Filed 5/9/13 P. v. Prado CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. SALVADOR PRADO, Defendant and Appellant.

H037497 (Santa Clara County Super. Ct. No. CC597908)

Appellant
Salvador Prado filed a petition in the Santa Clara Superior Court seeking to
vacate a conviction he sustained in 1999 for href="http://www.fearnotlaw.com/">possessing a controlled substance for sale. The petition presented an unusual difficulty,
however, for the judgment he sought to overturn had been rendered in Contra
Costa County,
not Santa
Clara County. This fact was
apparently overlooked by the court below, which mistakenly supposed that
defendant was challenging a 2007 conviction he had sustained in Santa
Clara County. After reviewing the record in that case, the
court denied the petition on the merits.
On appeal from that order, defendant contends that the court should not
have adjudicated the validity of either judgment. We agree, and will reverse with directions to
dismiss the petition without prejudice.





Background

Petitioner
is a citizen of Mexico. In 1999 he pled guilty in Contra Costa
Superior Court Case No. 115050-7MC to a charge of possessing a controlled
substance for sale. In 2001 he was
convicted in Contra Costa Superior Court Case No. 0014381 of injuring a spouse
with a weapon and making criminal threats.
He was sentenced on both convictions to 44 months in prison. In 2003, he was deported to Mexico
based on these convictions.

In July
2005, defendant was arrested in Santa Clara
County on charges of possessing
methamphetamine and associated paraphernalia, and being under the influence of
a controlled substance. He failed to
appear for a 2005 hearing. Warrants
issued, and in 2007 he was again arrested and charged, in Santa Clara Superior
Court Case No, CC597908, with the three 2005 offenses plus falsely identifying
himself to a police officer. The Contra
Costa convictions were alleged as enhancements.
Petitioner pled no contest to all charges and admitted a strike prior
and a prison prior. In taking the plea,
the court advised him of its potential immigration consequences. On February 8, 2008,
the court sentenced him to 28 months in prison.

On August 24, 2011, defendant filed a
17-page “Petition for Writ of Error Coram Nobis” with the clerk of the Santa
Clara Superior Court.href="#_ftn1"
name="_ftnref1" title="">[1] As originally captioned, the petition bore
the name of the Santa Clara court,
but the docket number 04-115050, which is manifestly a version of the number in
the Contra Costa case. However the
number of the Santa Clara case,
CC597908, had been written in by hand above the Contra Costa number. The petition contained the following
allegations: Defendant was presently
serving time in a federal penitentiary, having been convicted in 2010 of
“Illegal Reentry, Title 8, U.S.C. §1326(a), (b)(2).” He had been “charged in this case on April 14, 1999” with transporting
methamphetamine and possessing it for sale.
He entered a plea to those charges in 1999 “before Hon. John C. Minney.”href="#_ftn2" name="_ftnref2" title="">[2] His privately retained attorney, James
DeFrantz, failed to inform him that conviction of possession for sale could
subject him to deportation. Instead
counsel told him he was pleading to simple possession, which could not provide
a predicate for deportation.href="#_ftn3"
name="_ftnref3" title="">[3] The court too failed to inform him of the
potential immigration consequences of conviction. The judge also failed to determine that
defendant needed an interpreter to understand the consequences of his plea.

The
petition did not expressly identify the venue where the described proceedings
took place. It prayed for “relief by
Writ of Error Coram Nobis, or in the alternative, an order to vacate judgement
entered in this case, of June 17, 1999.”


On September 19, 2011, without
opposition or a hearing, the Santa Clara County Superior Court denied the
petition. Its order contained three
explanatory paragraphs. The first and
second disposed of the claims of ineffective assistance of counsel on the
ground that such claims cannot sustain relief by coram nobis petition.
(Citing People v. Hyung Joon Kim
(2009) 45 Cal.4th 1078, 1104; People v.
Villa (2009) 45 Cal.4th 1063; People
v. Chien (2008) 159 Cal.App.4th 1283.)
The third paragraph disposed of the claim of inadequate advisements by
the court, as follows: “To the extent
Petitioner may be claiming the court never advised him pursuant to PC § 1016.5
any such claim must be rejected. Within
the transcript of the change of plea, at page 9 lines 6-25, the full and
correct advisement is recorded and acknowledged by petitioner personally.” The court did not address the claim of
insufficient translation services.

Defendant
brought this timely appeal.

Discussion

Defendant
challenges the order denying his petition on four grounds: (1) The Santa Clara court lacked jurisdiction
to adjudicate the validity of the conviction defendant challenged, which was
his 1999 conviction in Contra Costa County; (2) the court also lacked
jurisdiction to adjudicate the validity of the 2008 Santa Clara conviction,
since that judgment was final and no proper vehicle was before the court by
which to overturn it; (3) the court’s adjudication of the Santa Clara
conviction violated defendant’s right to due process since he had raised no
issue concerning that conviction and had been allowed no notice or opportunity
to be heard concerning it; and (4) the adjudication of issues outside the
pleading was reversible procedural error.
Respondent’s brief is devoted almost entirely to the question whether
the Santa Clara court had fundamental jurisdiction to adjudicate the validity
of the Contra Costa judgment and whether defendant forfeited any objection to
its doing so by filing his challenge in Santa Clara County.

Defendant
is certainly correct in contending that the court below adjudicated an issue
not tendered to it, and failed to adjudicate the issue tendered to it. As respondent concedes, the petition “was
directed solely at [defendant’s] 1999 conviction from Contra Costa County.” This intention appears throughout the
petition, beginning with the original typewritten docket number, the dates of
conviction, and the name of the sentencing judge, all of which point to the
Contra Costa matter and not the Santa Clara matter. In addition, the petition repeatedly refers
to the allegedly deficient performance of retained Attorney DeFrantz, whereas
the hearing transcripts in the Santa Clara matter identify defendant’s attorney
as Deputy Public Defender Sung Lee.
Further, the petition sought to set aside a conviction for possession of
a controlled substance for sale,
whereas defendant’s only felony conviction in Santa Clara County was for simple
possession.

Respondent
also concedes that “the court erred in ruling on the validity of [defendant’s]
2008 [Santa Clara] conviction when his petition was limited solely to his 1999
conviction.” Again, the concession is
well taken. As respondent explicitly
acknowledges, the court’s misconception is reflected in the final paragraph of
its order, where it describes the contents of a “transcript of the change of
plea.” There is no indication that the
court had access to a transcript of any of the Contra Costa proceedings. It could not properly rely on such a
transcript without taking judicial notice of it, and it could not properly take
judicial notice without giving the parties an opportunity to comment and making
the noticed materials part of the record.
(Evid. Code, §§ 455, 452, subd. (d).) Since the court did neither of these things,
we must presume that it did not consider any transcripts from the Contra Costa
matter. (See Evid. Code, § 664
[presumption that official duty has been regularly performed].) It follows that court’s description of a
change-of-plea transcript can only refer to the transcript of the hearing held
February 28, 2008, in the Santa Clara matter.

Remarkably,
however, respondent urges us to affirm the judgment despite these seemingly
critical errors. According to
respondent, their only effect is that “the final paragraph of the court’s order
must be set aside.” “[O]therwise,”
respondent insists, the order must “be affirmed.” No adequate rationale is offered for this
disposition. Certainly we cannot treat
the order as a proper adjudication of the validity of the Contra Costa judgment
when the trial court neither attempted nor intended to adjudicate that
issue. The court manifestly intended to
rule on only one conviction. The last
paragraph reveals that it was the wrong one.
We cannot convert its order into an adjudication of the issue actually
tendered merely by striking the paragraph that discloses its intention to
adjudicate a different issue.

Nor does
respondent identify any ground on which the court could have adjudicated the
petition, properly construed, adversely to defendant. It is true that the first two paragraphs of
the court’s order, if sound, would apply equally to any coram nobis petition challenging a conviction on grounds of
ineffective assistance of counsel. To
the extent the court’s rationale would dictate that a challenge to the Contra
Costa conviction also be rejected. But
this would leave at least two other grounds of relief unadjudicated—the Contra
Costa court’s alleged failure to give adequate advisements concerning the
immigration consequences of the plea, and its alleged failure to adequately
inquire into the necessity for interpretive services. The court below disposed of the first such
ground by referring to the transcript of the Santa Clara plea-taking. It would seem that a similar examination of
the Contra Costa record, or other evidentiary inquiry, would be necessary to
determine the soundness of defendant’s remaining challenges to the Contra Costa
judgment. Respondent does not suggest
that the court below had any basis on which to adjudicate these questions, and
it seems plain that it did not.

It thus
seems clear that the order before us cannot be affirmed. The difficult question is what further
proceedings, if any, should take place in the court below. We have concluded that whether or not the
court has “fundamental jurisdiction” to vacate a Contra Costa judgment of
conviction, it should not do so, at least in the absence of extraordinary
circumstances. While no court has
apparently had occasion to so rule before now, we think it plain that for no superior
court should entertain a coram nobis
petition challenging a judgment of conviction rendered in another county. Rather, underlying procedural principles as
well as considerations of comity, convenience, and efficiency dictate that such
a petition should be stayed or dismissed without prejudice to its adjudication
in the court that rendered the challenged conviction.

Although
the pleading initiating the present proceedings was styled a petition for >coram nobis, it was actually in part a
statutory motion to vacate under Penal Code section 1016.5 (§ 1016.5). This fact was recognized by the trial court,
which wrote that defendant’s plea for relief must be denied “[t]o the extent
[he might] be claiming the court never advised him pursuant to PC § 1016.5.” Section 1016.5 prescribes an “advisement”
concerning immigration consequences, which it requires trial courts to
“administer” when receiving a plea of guilty or nolo contendere. (§ 1016.5, subd. (a).) If a court fails to do so and the defendant
shows that this failure may have immigration consequences for him, “the court,
on defendant’s 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.” (Id., subd. (b).) Moreover,
“Absent a record that the court provided the advisement required by this
section, the defendant shall be presumed not to have received the required
advisement.” (Ibid.; see People v. Dubon
(2001) 90 Cal.App.4th 944, 953 [presumption is rebuttable and affects burden of
proof].)

Defendant
alleged in his petition that the trial court failed to “explain to [defendant]
that his plea and conviction would result in a change in his immigration
status.” As the trial court recognized,
this is an invocation, albeit arguably imperfect, of section 1016.5. To that extent, then, the pleading must be
viewed as a motion under that statute, not a petition for coram nobis relief. This
follows from the fact that relief is available by coram nobis only when “ ‘no other remedy exists’ ” (>People v. Hyung Joon Kim, supra, 45
Cal.4th 1078, 1091) and “is unavailable when a litigant has some other remedy
at law” (id. at p. 1093). Thus the statutory remedy provided by section
1016.5 “supplants” the common law remedy “where the trial court fails to advise
a defendant concerning specified immigration consequences and/or the defendant
is unaware of same.” (>People v. Carty (2003) 110 Cal.App.4th
1518, 1524, capitalization & italics omitted.) It follows that defendant’s exclusive remedy
for the court’s alleged failure to communicate the required advisements is a
motion under that section.href="#_ftn4"
name="_ftnref4" title="">[4]

A motion to
vacate a judgment under section 1016.5 can only
be entertained by the court that rendered the judgment. This follows because “a motion is not an
independent remedy. It is ancillary to
an on-going action . . . .”
(Lewis v. Superior Court
(2008) 169 Cal.App.4th 70, 77.)href="#_ftn5"
name="_ftnref5" title="">[5] Naturally, then, a motion “must be made in
the court in which the action is pending.”
(Code Civ. Proc., § 1004.)
Therefore when section 1016.5 refers to a motion before “the court,” it
must be understood to refer to the court that received the plea and rendered
the judgment of conviction. (See 6
Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 3, p. 430
[“A motion may be made only in a pending main action or proceeding.”].) It follows that such a motion can only be
entertained by that court. And since the
motion provides the exclusive remedy where it applies, relief on the grounds
stated cannot be obtained from any other court.

Indeed, a
similar logic would seem to apply to coram
nobis proceedings in general, at least when brought in the trial court
rather than a reviewing court. (See Pen.
Code, § 1265 [requiring that where conviction was affirmed on appeal, >coram nobis relief be sought in
affirming court].) A petition for >coram nobis, at least in the trial
court, is in essence a motion to vacate the judgment. (See People
v. Hyung Joon Kim, supra, 45 Cal.4th 1078, 1096 [“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. Adamson (1949) 34 Cal.2d 320,
325 [defendant’s petition for coram nobis
was “in legal effect, a motion to vacate a judgment”]; 6 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Criminal Judgment, § 199, p. 244 [“the remedy
is, in effect, merely a motion to vacate the judgment, and might appropriately
be so designated”]; cf. People v.
Gallardo (2000) 77 Cal.App.4th 971, 982 [“the terms ‘motion to vacate’ and
‘petition for writ of error coram nobis’
are often used interchangeably and the two procedures are similar in scope and
effect”].) Of particular relevance is
the fact that, like a motion to vacate, it is viewed as a further proceeding >in the original case. (See People
v. Allenthorp (1966) 64 Cal.2d 679, 681 [“The petition for writ of error >coram nobis operates as a part of the
proceedings of the original case; it does not introduce a new or separate
adversary proceeding.”].) This
conception is apparently shared by the clerk of the Santa Clara court, who did
not assign a new docket number to defendant’s petition but docketed it under
the number of the original case against him in that court.

It follows
that, just as a motion must be adjudicated by the court hosting the underlying
action, so a petition for coram nobis
relief must—at least in the absence of exceptional circumstances—be heard by
the court that entered the underlying conviction. This is true whether or not the superior
court in one county has “jurisdiction in the fundamental sense” to entertain
challenges to a criminal conviction rendered in another county. Even if it has the naked power to do so, a
court should ordinarily refrain from exercising such a power, no matter who
seeks to invoke it. Rather, in the absence
of some good reason to do otherwise, a court asked to determine the validity of
a judgment of conviction from another county should decline to do so, and
should either stay the matter or dismiss it without prejudice to relief in the
county where the judgment was rendered.

This
conclusion is supported by a number of additional factors, some grounded in
procedural theory, and some in concrete considerations of efficiency and
convenience. To begin with, “[i]t is
often said that where two courts have concurrent jurisdiction over a class of
cases, the one that first assumes jurisdiction over the subject matter of a
particular controversy takes it exclusively, and the other court’s jurisdiction
may no longer be asserted over that subject matter.” (2 Witkin, Cal. Procedure (5th ed. 2008)
Jurisdiction, § 427, p. 1077.)href="#_ftn6"
name="_ftnref6" title="">[6] Insofar as a coram nobis proceeding is “a part of the proceedings of the
original case” rather than “a new or separate adversary proceeding” (>People v. Allenthorp, >supra, 64 Cal.2d at p. 681), the court
presiding over the original case may be said to have “assume[d] jurisdiction”
over its subject matter to the exclusion of any other court. In this view even if another court might
otherwise possess fundamental jurisdiction to determine the validity of the
judgment, the original court’s jurisdiction would continue—and would remain
exclusive—with respect to any motion for relief from the judgment.

The rule of
prior exclusive concurrent jurisdiction is sometimes said not to be
jurisdictional in the sense that it categorically ousts a second court of power
to act, but to rest instead on considerations of discretion and policy. (See 2 Witkin, supra, Jurisdiction, § 427, pp. 1077, 1078 [contrasting “>Jurisdictional Theory” with “>Comity Theory”].) This might open the door, at least in theory,
to one court adjudicating a challenge to a criminal judgment rendered in
another county. We cannot, however,
readily imagine circumstances that would justify such a procedure. The relative inconvenience of attempting to
adjudicate such matters in any county other than the originating one is
obvious. It is the originating county’s
clerk of court who is charged by statute with the obligation to preserve the
records of the case. (See Gov. Code,
§§ 69846, 68152, subds. (e)(2), (j)(7).)
For a court in another county to review those records, they—or certified
copies—must be transmitted to that court, and the procedures for taking
judicial notice of them must, on demand, be pursued. If contested issues of fact are presented,
the most likely witnesses—attorneys and other participants in the original
prosecution—are more likely to be found in and around the rendering court than
in another county. The office of the
district attorney in the rendering county may well claim a distinct interest in
the matter, but could not be assured of adequate notice and opportunity to
participate unless the court fashioned special procedures to ensure that
end. And if the court determined that
the defendant was entitled to appointed counsel (see People v. Shipman (1965) 62 Cal.2d 226, 231), it would have to
decide which public defender’s office can, and should, be required to undertake
that assignment. The office in the
county where the challenge is brought may well believe that its budget, and the
taxpayers who finance it, should not have to bear this additional burden; but
the office in the originating county might protest with some justice that it
should not be required to bear the expense involved in travel from its location
to a court in a distant county.
Moreover, the power of a court to appoint an officer outside its county
is, we feel safe in saying, an untested issue of considerable complexity.

Given these
inefficiencies and complications, we are frankly surprised to find the Attorney
General implicitly endorsing a regime that would seem to entitle any criminal
defendant to seek coram nobis relief
in any of California’s 56 counties, regardless of where the challenged judgment
was entered. Respondent characterizes
the question as one only of venue, and cites the Supreme Court’s holding in >People v. Simon (2001) 25 Cal.4th 1082,
1104, that a defendant forfeits objections to venue by failing to lodge a
timely objection. Insofar as the
question really is one of venue, it is undoubtedly true that the defendant’s
filing in the wrong county effects a forfeiture of the objection. But we do not believe the court in such a
case should or properly can even reach the question of venue. Insofar as the proceeding is a continuation
of the underlying case, venue has already been laid in the originating
county. Viewed in the analytical
framework proposed by respondent, the question is not one of forfeiture but of
whether the defendant is entitled to unilaterally change the venue already fixed in the originating county. On the face of such a petition, it belongs in
another county—not because that is the correct “venue” but because it is the
correct forum, having first asserted
jurisdiction over the matter and having the almost certain ability to
adjudicate the defendant’s claim for relief more efficiently and completely
than any other forum.

In sum, the
court below erred by treating the petition as one challenging a Santa Clara
conviction. Had the court viewed the
petition correctly—as one challenging a Contra Costa conviction—the court would
have erred by deciding it on the merits.
Any such challenge should and must be heard by the courts of that
county. We must therefore reverse the
order under review, but since no further substantive proceedings can take place
on the present petition, we will direct the court to dismiss it without
prejudice.

Disposition

The order
denying the petition for coram nobis
relief on the merits is reversed. The
trial court is directed to dismiss the petition without prejudice to further
proceedings in a proper court.







______________________________________

RUSHING, P.J.













WE CONCUR:













____________________________________

PREMO, J.













____________________________________

ELIA,
J.