Filed 9/29/14 P. v. Muniz CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                             B253103

                   Plaintiff and Respondent,                            (Los Angeles County
                                                                         Super. Ct. No. A479192)
         v.

SERGIO MUNIZ,

                   Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County.
Lori A. Fournier, Judge. Affirmed.

         Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Sergio Muniz appeals from the order denying his motion to vacate his 1988
cocaine transportation guilty plea on the ground that he was not properly advised of the
immigration consequences of that plea. We affirm because, as a matter of law, he waited
too long to bring his challenge.

                       FACTS AND PROCEDURAL HISTORY

       In December 1988 Sergio Muniz entered an open plea of guilty to one count of
transporting cocaine (Health & Saf. Code, § 11352, subd. (a)), along with a sentence
enhancement allegation that the transaction involved more than 28.5 grams of the drug
(Pen. Code, § 1203.073, subd. (b)(1)).1 Muniz was sentenced to 4 years in state prison
with all but one year suspended, was awarded custody credits of 151 days, and was
placed on 5 years probation.
       As part of his plea, Muniz signed and initialed a form stating that he understood
his conviction carried certain immigration consequences if he were not an American
citizen, including deportation, exclusion from admission to the United States, and denial
of naturalization. Muniz was represented by counsel at the time.
       In February 2001 Muniz had another lawyer file a motion to vacate the 1988
judgment under section 1203.4, which gives the trial court discretion to do so in the
interests of justice if the defendant successfully served probation. The motion stated that
Muniz successfully completed probation, had no further convictions, and sought to vacate
the judgment in order to facilitate his application for citizenship. That motion was
granted in March 2001. However, that action had no effect on the federal immigration
consequences of Muniz’s conviction. (People v. Martinez (2013) 57 Cal.4th 555, 560.)
       In April 2013, represented by a third lawyer, Muniz filed a motion to vacate the
1988 plea under section 1016.5, contending that he had not been properly advised of the
immigration consequences of his plea in accordance with that statute. Muniz’s
declaration stated that his parents brought him to the United States from Mexico in 1976


1
       All further section references are to the Penal Code.
                                             2
when he was eight years old. He was an addict and heavy cocaine user in 1988 when he
got caught up in an undercover police sting operation. An undercover officer offered to
pay Muniz $100 if Muniz would buy $100 worth of cocaine from Muniz’s supplier.
Muniz agreed and was arrested after he delivered the cocaine to the undercover officer.
       Muniz said that when he entered his plea, his lawyer told him he would get
probation and serve one year in county jail if he pleaded guilty because he had no
criminal record. The lawyer told him to fill out the form and initial all the boxes, but
Muniz said he never read the form and nobody ever explained the immigration
consequences of his plea. According to Muniz, he signed because he was in jail and was
nervous and upset. If he had known of those consequences he would have “moved
heaven and earth” to achieve a disposition that allowed him to stay in the United States.
However, his lawyer “never said anything . . . about having an entrapment defense, or
seeking some disposition which would not require deportation.”
       Muniz said that since his conviction he has married, raised children, started his
own business, and led an honest, law-abiding life. He once had a work permit that
allowed him to be in the United States legally but that was revoked in 1995 and he has
been here without proper documentation ever since. Because Muniz’s eldest child is a
citizen and was about to turn 21, Muniz would be eligible to apply for permanent
residency except for his conviction. Muniz said “I had no idea I could do anything about
my conviction in this case until I consulted an immigration attorney a few months ago
about trying to become legal in this country. He advised me that I could employ an
attorney to try to vacate my conviction or otherwise change it in some fashion so that I
could become legal . . . .”
       At the October 2013 hearing on Muniz’s motion, the reporter’s transcript from his
1988 plea proceedings was not available, although the preliminary hearing and
sentencing transcripts were, along with the probation reports.2 Muniz testified largely in

2       Respondent suggests the plea proceeding transcript was destroyed after 10 years,
as allowed by Government Code section 69955, subdivision (h), a prospect we consider
likely.
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accordance with his declaration concerning the circumstances surrounding his arrest and
guilty plea, emphasizing that neither his lawyer nor anyone else told him about the
immigration consequences of his plea and that he did not understand the forms he was
signing. At the time of the plea his family was in the United States, not Mexico, and if he
had known of the immigration consequences, he would have at least thought “about
going to trial or something [else].” On cross-examination, Muniz testified that he first
learned in 1991 that he was subject to deportation as a result of his conviction.
       The prosecutor argued that the motion to vacate was subject to the same diligence
requirements applicable to petitions for writs of error coram nobis, making the motion
untimely based on Muniz’s admission that he became aware of the immigration
consequences of his plea in 1991. The trial court chose not to reach that issue, finding
instead that Muniz had not been prejudiced by the lack of proper advisements because,
given the nature of the charges, the strength of the evidence, and the favorable sentence
he received, it was not reasonably likely he would have done anything different. The trial
court reached this conclusion after reading the preliminary hearing and sentencing
transcripts as well as the probation reports.

                                          DISCUSSION

       Before accepting a plea of guilty or no contest, the trial court must explain to a
defendant that if he is not an American citizen his conviction may lead to his deportation,
exclusion from admission to this country, or denial of naturalization. (§ 1016.5,
subd. (a).) If the court fails to do so and the conviction may have adverse immigration
consequences, the defendant may bring a motion to vacate the judgment and withdraw his
plea. (§ 1016.5, subd. (b).)
       To prevail, the defendant must show: (1) the advisements were not given; (2) the
conviction may result in adverse immigration consequences; and (3) he would not have
pled guilty or no contest had the proper advisements been given. (People v. Arriaga
(2014) 58 Cal.4th 950, 957-958.) The absence of a record that the advisements were


                                                4
given creates a presumption of nonadvisement that the prosecution must rebut by a
preponderance of the evidence. (§ 1016.5, subd. (b); Arriaga, at pp. 962-963.)
       Motions to vacate under section 1016.5 are the statutory equivalent of coram nobis
petitions and are subject to the diligence requirements applicable to such petitions.
(People v. Kim (2009) 45 Cal.4th 1078, 1104 (Kim); People v. Totari (2003)
111 Cal.App.4th 1202, 1206-1208 (Totari).)3 A defendant seeking coram nobis relief
faces a standard of diligence similar to that required in civil cases where a party seeks
relief against late-discovered fraud. (Kim, at p. 1096.)
       If considerable time has elapsed between the guilty plea and the motion to
withdraw the plea, the defendant has the burden to explain and justify the delay. (People
v. Castaneda (1995) 37 Cal.App.4th 1612, 1618 (Castaneda).) Muniz bore the burden of
proving that he acted with reasonable diligence or did not “long ago [have] cause to
question the accuracy of the trial court’s [earlier] immigration advisements . . . .”
(People v. Suprior Court (Zamudio) (1996) 23 Cal.4th 183, 204 (Zamudio); Totari,
supra, 111 Cal.App.4th at pp. 1207-1208; Castaneda, at pp. 1618-1619.)
       Muniz was therefore required to allege the time and circumstances under which
the facts were discovered so the trial court could determine as a matter of law whether he
acted with due diligence. (Kim, supra, 45 Cal.4th at p. 1096 [discussing coram nobis
petition to vacate judgment for lack of proper immigration consequence advisements].)
“The diligence requirement is not some abstract technical obstacle placed randomly
before litigants seeking relief, but instead reflects the balance between the state’s interest
in the finality of decided cases and its interest in providing a reasonable avenue of relief
for those whose rights have allegedly been violated.” (Id. at p. 1097.) “The reason for
requiring due diligence is obvious. Substantial prejudice to the People may result if the




3      The writ of error coram nobis is a limited remedy that applies where a fact
unknown to the parties existed at the time of judgment that, if known, would have
prevented rendition of the judgment. It does not apply to correct errors of law. (Kim,
supra, 45 Cal.4th at p. 1093.)
                                              5
case must proceed to trial after a long delay.” (Castaneda, supra, 37 Cal.App.4th at
p. 1618.)
       In Kim, supra, 45 Cal.4th 1078, the Supreme Court considered the coram nobis
petition of a defendant seeking to vacate his guilty plea to theft offenses based on
insufficient immigration advisements. The court held he was not reasonably diligent
when the conviction occurred in 1997, deportation proceedings were brought in 1998,
and the petition was not filed until 2005. (Id. at p. 1098.) In Castaneda, supra,
37 Cal.App.4th 1612, the defendant brought a section 1016.5 motion in 1994 to vacate
his 1983 no contest plea to an assault charge even though he had been facing deportation
since 1988. The Court of Appeal affirmed the trial court’s denial of that motion because
the defendant failed to allege any facts concerning when and how he learned he faced
adverse immigration consequences or that explained why he waited so long to challenge
the plea. (Id. at p. 1619.)
       In contrast, the court in Zamudio, supra, 23 Cal.4th 183, held that a defendant
acted with reasonable diligence when he brought a section 1016.5 motion in 1998 to
vacate convictions from 1992 and 1997 because the nature of the 1992 convictions was
not enough to trigger knowledge of adverse immigration consequences. (Id. at pp. 205-
207.) The court in Totari, supra, 111 Cal.App.4th 1202, held that the defendant
exercised due diligence in bringing his section 1016.5 motion in 1998 to challenge 1985
guilty pleas to drug possession charges because immigration proceedings that started in
1986 were based on student visa violations, not on the criminal convictions. (Id. at
p. 1209.)
       Respondent contends that Muniz’s admission that he first learned in 1991 that his
conviction might lead to his deportation establishes his lack of diligence in bringing his
section 1016.5 motion. We agree.
       Muniz testified that he first learned in 1991 that he was subject to deportation as a
result of his 1988 guilty plea. The work permit that made it legal for him to be in the
United States was revoked in 1995, and in 2001 he successfully vacated the judgment in
his criminal case under section 1203.4 in order to facilitate his citizenship application. In

                                              6
short, he knew of and actually suffered immigration consequences from his conviction
and took legal steps to remove those consequences years before bringing his section
1016.5 motion. Muniz’s only explanation for the delay was his assertion that he was
unaware such relief was available until he spoke to a lawyer in early 2013. That
explanation does not permit a finding of reasonable diligence.
       As noted above, the due diligence requirement for coram nobis – and by extension
motions under section 1016.5 – is akin to the diligence standard for delayed discovery of
fraud. (Kim, supra, 45 Cal.4th at p. 1096.) Application of the delayed discovery doctrine
depends on the plaintiff’s actual or presumptive knowledge of the facts. (Gutierrez v.
Mofid (1985) 39 Cal.3d 892, 897-898.) “It is irrelevant that the plaintiff is ignorant of his
legal remedy or the legal theories underlying his cause of action. Thus, if one has
suffered appreciable harm and knows or suspects that professional blundering is its cause,
the fact that an attorney has not yet advised him does not postpone commencement of the
limitations period. [Citations.]” (Id. at p. 898, italics added.)
       Therefore, the only explanation offered for Muniz’s delay is legally insufficient,
and the focus is instead on when he learned the relevant facts. The undisputed evidence
shows that Muniz learned of the adverse immigration consequences of his conviction in
1991, 22 years before moving to vacate the judgment and withdraw his plea. Those
consequences were brought home in 1995, when his work permit was revoked. He acted
on those consequences in 2001, albeit to no avail, when he vacated the judgment under
section 1203.4. On these facts the absence of reasonable diligence exists as a matter of
law.
       Even though the trial court did not reach this ground, we may affirm on any
correct theory of law applicable to the case, so long as the evidence is undisputed.
(People v. Brown (2004) 33 Cal.4th 892, 901; CTC Real Estate Services v. Lepe (2006)
140 Cal.App.4th 856, 859-860.) As a result, we need not reach the other issues raised by
the parties.




                                              7
                                       DISPOSITION

       The order denying appellant’s motion to vacate under Penal Code section 1016.5
is affirmed.




                                               RUBIN, J.
WE CONCUR:



               BIGELOW, P. J.



               GRIMES, J.




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