Filed 7/23/13 P. v. Cifuentes CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062897

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD126482)

BYRON A. CIFUENTES,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Timothy R.

Walsh, Judge. Affirmed.

         Patrick M. Ford for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Laura A.

Glennon, Deputy Attorneys General, for Plaintiff and Respondent.

         On April 18, 1997, Byron Cifuentes was charged with discharging a firearm in a

grossly negligent manner (Pen. Code,1 § 246.3; count 1) and possessing a firearm as a



1        All future statutory references are to the Penal Code unless otherwise indicated.
felon (§ 12021, subd. (a)(1); count 2). Cifuentes pleaded guilty to possessing a firearm as

a felon, and the court dismissed count 1. The court granted Cifuentes three years of

probation.

       Fifteen years later, Cifuentes moved to vacate the judgment and withdraw his

guilty plea under section 1016.5. He contended neither the court nor his counsel advised

him of the immigration consequences that attached to his guilty plea in 1997. The People

agreed to allow the plea to be withdrawn on the condition Cifuentes enter a guilty plea to

count 1 (which is a "strike" offense). The court granted Cifuentes's motion, and

Cifuentes entered a guilty plea to count 1 nunc pro tunc to 1997. Two days later, the

court held a chambers conference with both counsel and ultimately stayed its order

granting the motion. On May 1, 2012, the court rescinded its order. On September 25,

2012, Cifuentes moved again to vacate the judgment and withdraw his guilty plea under

section 1016.5, which a different court denied.

       Cifuentes appeals, contending the court lacked jurisdiction to rescind its original

order granting Cifuentes's first section 1016.5 motion, and judicial estoppel prevents the

People from arguing the court improperly granted the motion. Cifuentes does not

challenge the denial of his motion in September 2012 on the merits. He only challenges

the May 1, 2012 order rescinding the earlier action by the trial court allowing the change

of plea.

                                          FACTS

       On May 13, 2009, Immigration and Customs Enforcement agents detained

Cifuentes and initiated removal proceedings against him. In preparation for his defense,

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Cifuentes contacted an immigration attorney who told him an immigration judge lacks

authority to pardon a defendant in a removal proceeding if the defendant was convicted

of an aggravated felony. Thus, the immigration judge lacked authority to pardon

Cifuentes because Cifuentes pleaded guilty to count 2, an aggravated felony, in 1997.

However, if Cifuentes pleaded guilty to count 1, a nonaggravated felony, instead of

count 2, he would be in a better position to obtain relief from immigration removal.2

                                       DISCUSSION

                                              I

            THE COURT'S ORDER IS VOID FOR LACK OF JURISDICTION

       Resolution of this case is made difficult because of the confused nature of the

proceedings. Although the People opposed Cifuentes's first motion they ultimately

negotiated a new plea agreement under which Cifuentes could withdraw his plea to

count 2, on the condition that he plead to count 1, a more serious, strike offense. The

court accepted the new plea bargain, even though the original plea was in 1997, count 1

had long been dismissed and the conviction for count 2 had been dismissed under section

1203.4 years earlier.

       Apparently the trial court had second thoughts about the propriety of the new plea

deal and first stayed his order and, after conferring with counsel, set aside his prior

orders, leaving the 1997 disposition in place.




2     Given the limited scope of this appeal it is not necessary to discuss the facts of the
underlying offense, nor the testimony at the September 2012 hearing.
                                              3
       Neither party sought appellate review of the court's May 1, 2012 decision. It was

not until four months later that Cifuentes returned to the trial court with a second motion

under section 1016.5. That motion went to an evidentiary hearing, after which the

motion was denied. Cifuentes does not challenge the denial of the second motion on the

merits. Rather he now contends the trial court had no power set aside his order accepting

the new plea bargain.

       The failure to challenge the denial of the second motion is understandable because

the record clearly shows the motion to be without merit. According to the record,

Cifuentes was advised of possible deportation consequences in the change of plea form.

As counsel advised the court at the second motion, there are repeated references in the

1997 probation report to Cifuentes's then concerns about his immigration status in light of

the conviction. The record also shows that Cifuentes was contacted by immigration

authorities in 2009 and that deportation proceedings were instituted. It was not however,

until 2012 that Cifuentes filed his first motion under section 1016.5. Thus the record of

the September 2012 hearing shows Cifuentes was informed of and aware of potential

immigration problems in 1997 and did nothing to challenge the plea until three years after

federal authorities had initiated the deportation process.

       The record further shows that the problem presented at the first and second

motions was that changes in federal immigration law had created the anomaly that the

possession offense in count 2 was now considered an aggravated felony, but the more

serious, strike offense in count 1 no longer an aggravated felony. Thus in 2012, the strike



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conviction arguably would not present the same problems for him in his current

immigration case.

       Based on this record, we conclude the narrow question presented here is whether

the trial court had the jurisdiction to accept a new plea bargain, nunc pro tunc, and the

corollary question being if the court did not have the power to accept the new plea deal,

did it have the power to correct its own error. We conclude the trial court did not have

jurisdiction to set aside the plea to count 2 under a new plea agreement to accept a plea to

count 1. Since the court did not have the power to take the first action, we find it

certainly had the power to correct its error. Thus, at the time of the hearing on the second

motion the trial court had jurisdiction to make a ruling on the merits of that motion.

       Cifuentes contends the court had jurisdiction to grant his motion to withdraw his

guilty plea because the motion was timely under section 1016.5. The People contend

Cifuentes's motion to withdraw his guilty plea to one charge and enter a guilty plea to a

different charge was untimely under section 1018, the court lacked jurisdiction to grant

the section 1016.5 motion because a court properly advised Cifuentes of the immigration

consequences of his guilty plea, and the court lacked jurisdiction to accept a guilty plea

nunc pro tunc to a count the court dismissed 15 years ago. We agree the court lacked

jurisdiction to accept Cifuentes's guilty plea to count 1, thus the entire order is void

regardless of whether Cifuentes's motion to withdraw his guilty plea to count 2 was

timely.




                                               5
                                       Section 1016.5

       Cifuentes contends his motion was timely because he moved to withdraw his plea

under section 1016.5, not section 1018. We need not determine whether Cifuentes's

motion is timely under section 1016.5, because the court granted relief outside the scope

of section 1016.5, and that relief exceeded the court's jurisdiction.

       Motions under section 1016.5, section 1018, and writs of error coram nobis3 are

methods to achieve changes of plea. Section 1018 provides procedural standards for

change of plea motions. However, motions under section 1016.5 are not governed by

section 1018, unlike writs of error coram nobis. (See People v. Hyung Joon Kim (2009)

45 Cal.4th 1078 [writs of error coram nobis are procedurally different than section

1016.5 motions].) Under section 1016.5, a court may vacate a prior judgment or order

and allow a defendant to withdraw a guilty plea if a court inadequately advised the

defendant of the immigration consequences of that plea at the time the defendant entered

the plea. The exclusive remedy of section 1016.5 is that a defendant may move to vacate

the guilty plea and enter a plea of not guilty. (People v. Murillo (1995) 39 Cal.App.4th

1298, 1305.) Unlike section 1018, section 1016.5 contains no time bar. (People v.

Superior Court (Zamudio) (2000) 23 Cal.4th 183, 204.) A motion under section 1016.5

to vacate a guilty plea based on inadequate advisement of the immigration consequences

of the plea is timely "if brought within a reasonable time after the conviction actually


3      A writ of error coram nobis, a narrow nonstatutory remedy to secure relief where
no other remedy exists, enables a court to reconsider a prior judgment based on an
unknown fact that, if known, would have prevented the rendition and entry of the
judgment. (People v. Hyung Joon Kim, supra, 45 Cal.4th 1078, 1091.)
                                              6
'may have' such consequences." (Zamudio, supra, at p. 204.) The defendant does not

have the burden to show due diligence under section 1016.5. (Zamudio, supra, at p. 204.)

Rather, the motion is untimely if the People show the defendant had cause to question the

adequacy of the court's immigration advisement long before the defendant moved under

section 1016.5. (Zamudio, supra, at p. 204; see also People v. Carty (2003) 110

Cal.App.4th 1518.)

       Cifuentes moved under section 1016.5 rather than section 1018 or by writ of error

coram nobis. Section 1016.5 properly governs Cifuentes's motion to withdraw his guilty

plea to count 2 because it concerned withdrawal of a guilty plea based on a court's

inadequate immigration advisement. However, section 1016.5 does not govern the

negotiated agreement that Cifuentes plead guilty to count 1 because the exclusive remedy

of section 1016.5 is to allow withdrawal of guilty pleas based on a court's inadequate

immigration advisement. (See People v. Murillo, supra, 39 Cal.App.4th at p. 1305.)

Because the court granted relief outside the scope of section 1016.5, the court's

jurisdiction to accept Cifuentes's guilty plea to count 1 is also at issue.

                                         Section 1018

       The People contend the court lacked jurisdiction to grant Cifuentes's motion

because it was untimely under section 1018. Although Cifuentes moved to withdraw his

guilty plea under section 1016.5, the agreement that he plead guilty to count 1 is

governed by section 1018, and we agree it was untimely.

       Section 1018 governs changes of plea unless a defendant properly moves under

another statute like section 1016.5. (See People v. Hyung Joon Kim, supra, 45 Cal.4th at

                                               7
pp. 1105-1107.) Under section 1018, a defendant must move to change his or her plea

before the judgment or within six months of the final order if entry of judgment is

suspended. (Kim, supra, at p. 1106, fn. 17; People v. Miranda (2004) 123 Cal.App.4th

1124, 1133-1134 [the six-month time limitation is mandatory].)

       The agreement that Cifuentes plead guilty to count 1 did not involve withdrawal of

a guilty plea based on a court's inadequate immigration advisement, thus the new plea

bargain is not properly governed by section 1016.5. By default, the new plea agreement

is governed by section 1018. (See People v. Hyung Joon Kim, supra, 45 Cal.4th at pp.

1105-1107.) Under section 1018, the agreement to plead guilty to count 1 was untimely

because the court dismissed count 1 over 15 years ago. (See People v. Miranda, supra,

123 Cal.App.4th at pp. 1129-1130 [motion to change plea under section 1018 five years

past the mandatory statutory period of six months after judgment was untimely].) While

the agreement that Cifuentes would plead guilty to count 1 was untimely under section

1018, the court granted the parties' request by accepting the guilty plea nunc pro tunc

after vacating the 1997 judgment under section 1016.5.

                              Nunc Pro Tunc Modifications

       The People contend the court lacked jurisdiction to accept the guilty plea nunc pro

tunc. We agree, accordingly the entire order is void for lack of jurisdiction.

       A nunc pro tunc modification of a judgment or order is an entry made in the

present that has effect as of the judgment or order's original date. (See In re Marriage of

Padgett (2009) 172 Cal.App.4th 830, 851.) Nunc pro tunc modifications may only

resolve clerical errors. (People v. Hyung Joon Kim (2012) 212 Cal.App.4th 117, 124.)

                                             8
"The distinction between clerical error and judicial error is 'whether the error was made

in rendering the judgment, or in recording the judgment rendered.' " (In re Candelario

(1970) 3 Cal.3d 702, 705.) A nunc pro tunc modification of a defendant's prior sentence

to avoid deportation for an aggravated felony under federal immigration laws is not a

clerical order and is thus invalid. (People v. Borja (2002) 95 Cal.App.4th 481, 483-484.)

An invalid nunc pro tunc order is void for lack of jurisdiction. (See APRI Ins. Co. v.

Superior Court (1999) 76 Cal.App.4th 176, 186 ["trial court was without authority" in

making improper nunc pro tunc order]; In re Marriage of Padgett, supra, 172

Cal.App.4th at p. 855 [order was void when trial court "exceeded its power" in making

improper nunc pro tunc order].) Further, a court's entire judgment or order is void if a

court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting

relief which the court had no power to grant. (Armstrong v. Armstrong (1976) 15 Cal.3d

942, 950 (Armstrong).)

       Here, the trial court did not have jurisdiction to accept a guilty plea nunc pro tunc

because the court modified the 1997 order to satisfy a new agreement, not to correct

purely clerical errors. Since the court lacked jurisdiction to make nunc pro tunc

modifications, and the change of plea was otherwise untimely under section 1018, the

court acted without jurisdiction when it accepted Cifuentes's guilty plea to count 1. Thus,

the entire order was void for lack of jurisdiction. (See Armstrong, supra, 15 Cal.3d 942,

950 [an order is entirely void when a court lacked jurisdiction or exceeded its jurisdiction

in granting relief which the court had no power to grant].)



                                              9
                                      Judicial Estoppel

       Cifuentes contends judicial estoppel prevents the People from arguing the court

improperly granted Cifuentes's section 1016.5 motion because he was not adequately

informed of the immigration consequences of his plea at the time he entered his guilty

plea. We need not address this contention given the narrow issues before us. This appeal

does not challenge the September 2012 decision on the merits. As we have noted above,

the record itself supports the September decision, without considering the People's views

on the issue at the time of the first motion.

                                                II

         THE COURT HAD JURISDICTION TO RESCIND THE VOID ORDER

       Cifuentes contends the court lacked jurisdiction to rescind its order granting the

first section 1016.5 motion to withdraw his guilty plea. We disagree.

       Cifuentes cites People v. McGee (1991) 232 Cal.App.3d 620 (McGee) to support

the conclusion the court lacked jurisdiction to rescind its order. McGee holds that Code

of Civil Procedure section 128, subdivision (a)(8), which provides "[e]very court shall

have the power . . . to amend and control its process and orders so as to make them

conform to law and justice[,]"4 does not apply to a final order or judgment based on an

erroneous interpretation of law or facts. (McGee, supra, at p. 626.) Though there are few

limits on a court's power to reconsider interim rulings in criminal cases (People v.

Castello (1998) 65 Cal.App.4th 1242, 1246), final rulings regarding the withdrawal of a


4      See Gonzalez v. Superior Court (1935) 3 Cal.2d 260, 263-264 [parts of the Code
of Civil Procedure that expressly apply to penal actions apply to criminal cases].
                                                10
guilty plea must be remedied by writ of mandate or by a defendant's motion to withdraw

the previously entered plea. (People v. Thompson (1970) 10 Cal.App.3d 129, 136-138.)

        However, McGee held a court cannot set aside its ruling for judicial error when the

court had original jurisdiction to grant a motion to withdraw a guilty plea. (McGee,

supra, 232 Cal.App.3d at pp. 624-625.) Thus, McGee is inapplicable to this case because

the order here was void for lack of original jurisdiction. A trial court may move to set

aside a void judgment or order on its own motion. (Betz v. Pankow (1993) 16

Cal.App.4th 931, 938; In re Marriage of McNaughton (1983) 145 Cal.App.3d at pp. 848-

849.)

        Thus, the court had jurisdiction to rescind the order since the order was void.

                                       DISPOSITION

        The judgment is affirmed.




                                                                             HUFFMAN, J.

WE CONCUR:



              BENKE, Acting P. J.


                        AARON, J.




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