Filed 12/22/14 P. v. Badillo CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B252576

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA190029)
         v.

FILOMENO CARLOS BADILLO,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. Michael D.
Abzug, Judge. Affirmed.


         The Agopoglu Law Corp. and Berc Agopoglu, under appointment by the Court of
Appeal, for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for
Plaintiff and Respondent.
       Defendant and appellant Filomeno Carlos Badillo (defendant) appeals from the
trial court’s order denying his petition for writ of error coram nobis in which he sought to
have his 1999 judgment vacated on two grounds: defense counsel rendered ineffective
assistance by misinforming him of the immigration consequences of his plea and he
would not have entered a plea agreement if he had known of newly discovered
exculpatory evidence. Finding no merit to defendant’s contention that the trial court
abused its discretion in denying the petition, we affirm the order.
                                     BACKGROUND
       On September 10, 1999, defendant was charged by felony information in count 1
with the sale, transport or offer to sell cocaine, in violation of former Health and Safety
Code section 11352, subdivision (a), and in count 2 with possession of cocaine for sale in
violation of former Health and Safety Code section 11351. Under a plea agreement,
defendant pled no contest to count 2 in return for the dismissal of count 1. Defendant
was placed on formal probation for three years on terms and conditions that included 30
days in county jail.
       On August 9, 2012, defendant filed a motion to vacate judgment pursuant to Penal
Code section 1016.5, alleging that neither his attorney, the prosecutor, nor the trial judge
warned him of the immigration consequences of his plea.1 Two weeks later, defendant
filed an “Amendment to Motion to Vacate Judgment” in which defendant alleged that it
was his attorney who had failed to advise him of possible defenses and represented there
would be no immigration consequences. After two stipulated continuances, the matter
was called for hearing on October 18, 2012, and then taken off calendar.
       On December 13, 2012, defendant filed a petition for writ of error coram nobis
and motion to vacate the judgment, in which defendant alleged that he asked his attorney
about immigration consequences and was told that nothing would happen to him.

1       Penal Code section 1016.5 provides for a statutory motion to vacate a judgment
entered after a guilty plea where the trial court failed to advise the defendant that his plea
may “have the consequences of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the United States.” All further
statutory references are to the Penal Code, unless otherwise indicated.

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Defendant also claimed ineffective assistance of counsel in the defense of the charges.
Defendant’s attached declaration included the following: “On July 26, 1999, I was
driving and working and when I was stopped a lady came to me and said ‘do you want a
ride?’ She said ‘I want to have fun.’ I said ‘I am a driver do you want a ride?’ And all
of a sudden cops came to me alleging that I had cocaine in my possession. This was
during the area and time of rampart [sic] scandal.”
       Following a hearing the trial court denied the petition on March 21, 2013, and
issued written findings of fact and conclusions of law (March ruling). Among other
findings of fact, the court concluded that according to the docket, prior to defendant
entering his plea, the sentencing court specifically advised defendant “that if he was not a
citizen of the United States, the consequences of his plea could include deportation,
denial of naturalization, and denial of reentry into the United States.” The court also
found that defendant was represented by counsel, had not shown reasonable diligence in
bringing the motion, or that the facts were unknown to him or could not have been
discovered earlier, that he did not receive immigration advice that was inconsistent with
the admonition given in open court, and that the allegations in his declaration lacked
credibility, reliability, and corroboration. The court declined to vacate defendant’s plea
and concluded that coram nobis did not lie to vitiate a plea entered in reliance upon the
erroneous advice of counsel.
       Defendant did not seek appellate review of the March ruling, and it became final
before July 12, 2013, when defendant filed another petition for writ of error coram nobis
and motion to vacate judgment. In defendant’s supporting declaration, in addition to
repeating his claim that his attorney failed to inform him regarding immigration
consequences, defendant claimed that he did not possess the cocaine for sale. He claimed
he was deceived by an undercover police officer who asked whether he had any “weed”
and whether he was going to sell her cocaine. Because she was attractive and dressed in
revealing clothing, he believed that she was soliciting sex in return for having fun with
him in a hotel. Defendant concluded he should have been charged only with simple



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possession of drugs because the police report, which he did not see until February 2013,
confirmed that he wanted to go to the hotel.
       After one continuance the court called the matter for hearing on August 28, 2013.
Defendant’s counsel requested a 30-day continuance because he was “waiting for the
transcripts” and intended to amend the petition when he received them. The trial court
denied the request to continue and found that no new facts were presented. The petition
was taken off calendar and then denied based upon the court’s prior ruling. The court
stated that it would give careful attention to any new facts available once counsel
obtained the transcript. Defendant filed a timely notice of appeal from the court’s order.
                                       DISCUSSION
       Defendant contends that the trial court abused its discretion in denying his most
recent petition for writ of error coram nobis. Defendant relies in part, as he did in both
statutory motions and both coram nobis petitions, on the United States Supreme Court’s
holding in Padilla v. Kentucky (2010) 559 U.S. 356, 368-369 (Padilla), that counsel
renders ineffective assistance when the deportation consequence is clear, but he fails to
give the correct advice. Defendant also argues, as he did to the trial court, that because
he has no remedy by way of habeas corpus, having served his sentence, he will have no
remedy at all if he is not permitted to proceed by way of coram nobis.
       A writ of error coram nobis, like the motion under section 1016.5 or a
nonstatutory motion to vacate judgment, is unavailable to redress such constitutional
claims as ineffective assistance of counsel. (People v. Kim (2009) 45 Cal.4th 1078, 1095,
1104, 1107, fn. 20 (Kim).) Coram nobis is equally unavailable when the defendant relies
on Padilla to support his claim of ineffective assistance of counsel. (People v. Mbaabu
(2013) 213 Cal.App.4th 1139, 1147.) In any event, we need not consider the merits of
the latest petition, as the trial court expressly relied upon the March ruling, and found that
defendant had presented no additional facts. As the petition which resulted in the March
ruling was brought on the same grounds as the most recent petition, the instant appeal is
taken from what was, in effect, the denial of a motion for reconsideration. As both
petitions were brought before the same judge, the court had inherent authority to


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reconsider its March ruling. (See People v. Castello (1998) 65 Cal.App.4th 1242, 1247-
1248.) Whether to do so was a matter within the court’s discretion. (Jackson v. Superior
Court (2010) 189 Cal.App.4th 1051, 1068.)
       The trial court’s “discretion must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice. [Citations.]” (People v. Jordan (1986)
42 Cal.3d 308, 316.) It is defendant’s burden to demonstrate that the trial court’s
decision was irrational, arbitrary, or not “‘grounded in reasoned judgment and guided by
legal principles and policies appropriate to the particular matter at issue.’ [Citation.]”
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Defendant has failed to
meet his burden.
       The trial court found no new facts in the most recent petition, and denied it on that
ground. Defendant contends that his petition was based on newly discovered exculpatory
evidence in the original police report that would have provided him with a valid
affirmative defense. Defendant declares in the most recent petition, that he did not see
the police report until February 2013, when it was shown to him by his current attorney.
As the February 2013 discovery obviously predated the March ruling, the police report
was not “newly discovered” when defendant sought reconsideration of that ruling in
August 2013.
       Moreover, such facts would not have supported either of defendant’s petitions as
“‘[t]he writ of [error] coram nobis is granted only when three requirements are met. (1)
Petitioner must “show that some fact existed which, without any fault or negligence on
his part, was not presented to the court at the trial on the merits, and which if presented
would have prevented the rendition of the judgment.” [Citations.] (2) Petitioner must
also show that the “newly discovered evidence . . . [does not go] to the merits of issues
tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except
on motion for new trial.” [Citations.] This second requirement applies even though the
evidence in question is not discovered until after the time for moving for a new trial has
elapsed or the motion has been denied. [Citations.] (3) Petitioner “must show that the


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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. . . .”’ [Citation.]” (Kim, supra, 45 Cal.4th at p. 1093, quoting
People v. Shipman (1965) 62 Cal.2d 226, 230.)
       Even if defendant had shown that the late discovery of the police report was not
due to any fault or negligence on his part, the allegedly exculpatory facts would not
entitle him to coram nobis. “New facts that would merely have affected the willingness
of a litigant to enter a plea, or would have encouraged or convinced him or her to make
different strategic choices or seek a different disposition, are not facts that would have
prevented rendition of the judgment.” (Kim, supra, 45 Cal.4th at p. 1103.)
       Under such circumstances, we conclude that the trial court did not abuse its
discretion in refusing to reconsider its March ruling or in denying the most recent
petition.
                                      DISPOSITION
       The order of August 28, 2013, is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ____________________________, J.
                                                  CHAVEZ
We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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