Filed 2/11/14 P. v. Linares CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063625

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN196437)

EFRAIN LINARES,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed.

         Kobayashi Law Office and H. Lisa Kobayashi for Defendant and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

         Efrain Linares appeals an order denying his motion to withdraw his guilty plea to

one count of possession for sale of a controlled substance (Health & Saf. Code, § 11378).

He pleaded guilty to that count in 2005, successfully completed three years of formal
probation, and the information underlying his conviction was dismissed pursuant to Penal

Code section 1203.4 in 2010. However, on learning that dismissal had no effect on the

immigration consequences of his conviction, Linares filed the instant motion to withdraw

his guilty plea and vacate his conviction. The trial court denied the motion. On appeal,

he contends the trial court erred by denying his motion because (1) People v. Kim (2009)

45 Cal.4th 1078 (Kim), relied on by the court, is inapplicable to his case because his

counsel's affirmative misadvice on the immigration consequences of his guilty plea

violated his constitutional right to effective assistance of counsel; and (2) his plea form

did not show whether his counsel gave him correct advice regarding the immigration

consequences of his guilty plea.

       The People contend the trial court was correct that it had no jurisdiction to grant

Linares's motion to withdraw his guilty plea seven years after he pleaded guilty and was

no longer in custody. The six-month statutory time for filing a motion to withdraw a plea

under Penal Code section 1018 had expired, he did not qualify for the common law writ

of coram nobis, habeas corpus was not available because he was not in custody, and there

is no other procedural remedy permitting withdrawal of the plea. Because we interpret

Kim as applying to cases involving affirmative misadvice by defense counsel and no

other nonstatutory motion exists to provide relief, we conclude the trial court correctly

applied Kim to this case and affirm its order denying Linares's motion.




                                              2
                   FACTUAL AND PROCEDURAL BACKGROUND

       Linares is a citizen of Mexico and came with his mother to the United States when

he was nine years old. He graduated from high school and has worked to support himself

and his family. In 2009, he married the mother of their two daughters, all of whom are

United States citizens.

       In 2005, Linares pleaded guilty to one count of possession for sale of a controlled

substance (Health & Saf. Code, § 11378). In return, the prosecution dismissed two

counts charging him with transportation of a controlled substance (Health & Saf. Code,

§ 11379, subd. (a)) and possession of a controlled substance (Health & Saf. Code,

§ 11377, subd. (a)). The trial court granted him formal probation for three years with the

condition he serve 90 days in local custody. After successfully completing his probation,

Linares's request for dismissal of the information underlying his conviction pursuant to

Penal Code section 1203.4 (i.e., expungement of his conviction) was granted in 2010.

       In 2012, Linares consulted an attorney for advice regarding becoming a permanent

resident of the United States. The attorney informed him his 2005 conviction was an

aggravated felony for immigration purposes and could result in his deportation, inability

to reenter the United States, and denial of naturalization. In an apparent attempt to

eliminate that basis for adverse immigration action, Linares filed the instant motion to

withdraw his guilty plea and vacate his conviction. On January 18, 2013, the trial court

denied the motion. Linares timely filed a notice of appeal. The trial court issued a

certificate of probable cause for his appeal.


                                                3
                                       DISCUSSION

                                               I

                              The Writ of Error Coram Nobis

       "The writ of error coram nobis is a nonstatutory, common law remedy whose

origins trace back to an era in England in which appeals and new trial motions were

unknown. 'Far from being of constitutional origin, the "proceeding designated 'coram

nobis' . . ." . . . was contrived by the courts at an early epoch in the growth of common

law procedure to provide a corrective remedy "because of the absence at that time of the

right to move for a new trial and the right of appeal from the judgment." ' [Citation.] The

grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower

than on habeas corpus [citation]; the writ's purpose 'is to secure relief, where no other

remedy exists, 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' [citation]." (Kim, supra, 45

Cal.4th at p. 1091, fn. omitted.)

       " ' "The writ of error coram nobis is not intended to authorize any court to review

and revise its opinions; but only to enable it to recall some adjudication made while some

fact existed which, if before the court, would have prevented the rendition of the

judgment; and which without fault or negligence of the party, was not presented to the

court." ' " (Kim, supra, 45 Cal.4th at p. 1092.) The historical purpose of the writ of error

coram nobis was to bring the attention of the court to, and obtain relief for, errors of fact,


                                              4
such as the death of a party before judgment, an infant not properly represented by a

guardian, insanity of a party or some other common-law disability, or a valid defense

based on the facts not made on behalf of the defendant through duress or extrinsic fraud

or excusable mistake not shown on the record; and that if such facts were known, would

have prevented the rendition and entry of the judgment. (Id. at pp. 1092, 1094.) "With

the advent of statutory new trial motions, the availability of direct appeal, and the

expansion of the scope of the writ of habeas corpus, writs of error coram nobis had, by

the 1930's, become a remedy 'practically obsolete . . . except in the most rare of instances'

[citation] and applicable to only a 'very limited class of cases' [citation]." (Id. at p. 1092.)

       The modern requirements for obtaining a writ of error coram nobis are set forth in

People v. Shipman (1965) 62 Cal.2d 226, in which the court stated:

           "The writ of [error] coram nobis is granted only when three
           requirements are met. (1) Petitioner must 'show that some fact
           existed which, without 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 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 [petition]
           for the writ. . . .' [Citations.]

           "In view of these strict requirements, it will often be readily apparent
           from the petition and the court's own records that a petition for


                                               5
           coram nobis is without merit and should therefore be summarily
           denied." (People v. Shipman, supra, 62 Cal.2d at p. 230.)

The three Shipman requirements continue to apply to petitions for writ of error coram

nobis filed today. (Kim, supra, 45 Cal.4th at p. 1093; People v. McElwee (2005) 128

Cal.App.4th 1348, 1352.)

       "Because the writ of error coram nobis applies where a fact unknown to the

parties and the court existed at the time of judgment that, if known, would have prevented

rendition of the judgment, '[t]he remedy does not lie to enable the court to correct errors

of law.' [Citations.] . . . [¶] For a newly discovered fact to qualify as the basis for the

writ of error coram nobis, we look to the fact itself and not its legal effect. 'It has often

been held that the motion or writ is not available where a defendant voluntarily and with

knowledge of the facts pleaded guilty or admitted alleged prior convictions because of

ignorance or mistake as to the legal effect of those facts.' [Citation.] [¶] Finally, the writ

of error coram nobis is unavailable when a litigant has some other remedy at law. 'A writ

of [error] coram nobis is not available where the defendant had a remedy by (a) appeal or

(b) motion for new trial and failed to avail himself of such remedies.' " (Kim, supra, 45

Cal.4th at p. 1093.)

       The writ of error coram nobis has been found unavailable in cases in which the

defendant mistakenly believed his or her guilty plea to second degree murder meant the

defendant would serve no more than 15 years in prison (People v. McElwee, supra, 128

Cal.App.4th at p. 1352 [defendant's belief was "not a mistake of fact but one of law"])

and the defendant asserted neither his or her counsel nor the court advised the defendant

                                               6
before entering the guilty plea that those convictions would render the defendant eligible

for civil commitment under the Sexually Violent Predators Act (SVPA) (People v. Ibanez

(1999) 76 Cal.App.4th 537, 546 ["[d]efendant's ignorance regarding the potential for civil

commitment under the SVPA is a legal, not a factual, question"]). "Likewise[,] any

number of constitutional claims cannot be vindicated on coram nobis. (See, e.g., People

v. Howard [(1965) 62 Cal.2d 237,] 238 [claim of an unconstitutional sentence and

inadequate representation]; People v. Blalock [(1960) 53 Cal.2d 798,] 801 [double

jeopardy]; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [240 Cal.Rptr. 328]

[ineffective assistance of counsel] [citations].)" (Kim, supra, 45 Cal.4th at p. 1095.)

       A trial court's decision whether to issue a writ of error coram nobis is reviewed on

appeal under the abuse of discretion standard. (Kim, supra, 45 Cal.4th at p. 1095; People

v. McElwee, supra, 128 Cal.App.4th at p. 1352; People v. Ibanez, supra, 76 Cal.App.4th

at p. 544.)

                                              II

                        Application of Kim's Holding to This Case

       Linares contends the trial court erred by denying his motion to withdraw his guilty

plea because Kim, supra, 45 Cal.4th 1078, on which the court relied, is inapplicable to his

case because his counsel's affirmative misadvice on the immigration consequences of his

guilty plea violated his constitutional right to effective assistance of counsel. He also

argues the court should have granted his motion to withdraw his guilty plea as a

nonstatutory motion other than for a writ of error coram nobis.


                                              7
                                             A

       In November 2012, Linares filed a motion to withdraw his guilty plea and vacate

his 2005 conviction for a Health and Safety Code section 11378 offense. He argued he

was denied his Sixth Amendment right to effective assistance of counsel when his

defense counsel gave him affirmative misadvice that his guilty plea could later be

withdrawn under Penal Code section 1203.4, and he would thereafter suffer no adverse

immigration consequences. Citing Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla),

Linares argued that under the Sixth Amendment defense counsel has a duty to correctly

advise a client of any clear adverse immigration consequences of a guilty plea (e.g.,

removal or deportation). Linares argued he was denied his Sixth Amendment right to

effective assistance of counsel when his defense counsel advised him to plead guilty to an

aggravated felony and, in so doing, wrongly advised him that he would not have any

immigration problems after expungement of that conviction.

       In his declaration in support of his motion, Linares stated in part:

          "6. In court on July 5, 2005, [defense counsel] told me that I should
          take a plea deal in which I would plead guilty to only one of the
          three charges, and I would be able to be on probation. I told him that
          I was worried about immigration problems, but he told me that
          everything would be fine, and I could later get my conviction
          expunged. . . .

          "7. At the [time] I entered my plea to the one charge that [defense
          counsel] recommended, I had no idea that I could be deported
          because of the plea. . . .

          "8. I followed all the requirements of my probation, paid all my
          fines, and complied with all the terms of my sentence. As soon as I
          was able, I engaged [defense counsel] to get my conviction

                                              8
          expunged. My request for expungement was granted on February
          19, 2010, and I believed that everything would be fine and I could
          become a U.S. citizen one day. [¶] . . . [¶]

          "11. The first time I became aware that I could be deported was
          when I contacted attorney Lisa Kobayashi in August 2012, to see if I
          could begin the process of becoming a U.S. citizen.

          "12. After talking with attorney Kobayashi, to my surprise and
          horror, I learned that my conviction was an 'aggravated felony' and
          that, along with being deported, I would never be able to reenter the
          United States or become a U.S. citizen. I learned that there would be
          no exceptions or relief that I could apply for in immigration court
          that could prevent my deportation because of this criminal
          conviction.

          "13. If I had known the near-certain devastating consequences that
          would result from such a conviction, I would [have] insisted that my
          attorney negotiate a better plea, or I would have stayed in jail until I
          had a trial. . . ."

       In support of his motion, Linares also submitted a declaration of Lisa Kobayashi,

his immigration attorney, who stated, in part, that when she interviewed Linares in or

about August 2012, he "erroneously believed that the expungement eliminated the

immigration consequences of his conviction." After reviewing Linares's case file and

conducting research, she concluded he "had no viable defense or relief from the

immigration consequences of his conviction. As such, removal (deportation), exclusion,

and denial of naturalization are near certain consequences of his conviction, and if he is

removed, he would not be able to return to the United States again. I advised Mr. Linares

of my findings."

       The prosecution opposed his motion, arguing that no nonstatutory motion (e.g.,

writ of error coram nobis) was appropriate relief for Linares's claim of ineffective

                                             9
assistance of counsel. The prosecution argued the trial court properly denied Linares's

motion to withdraw his guilty plea.

       On January 18, 2012, the trial court heard arguments on the motion to withdraw

his guilty plea and vacate his conviction. The court noted it had reviewed the plea form

signed by Linares, his counsel, the prosecutor, and the trial court. It further noted the six-

month period for a Penal Code section 1018 motion based on ineffective assistance of

counsel had long expired since Linares's 2005 conviction. The court concluded Kim was

controlling in this case. It also concluded Padilla did not contradict Kim. The court

considered Linares's motion to withdraw his guilty plea to be a nonstatutory motion for

ineffective assistance of counsel, which motion is "covered under the Kim case," and

therefore it did not have jurisdiction to hear his motion. The court denied the motion.

                                              B

       Sixth Amendment right to counsel. In Padilla, the United States Supreme Court

held that defense counsel has a duty under the Sixth Amendment to correctly advise his

or her client regarding any clear deportation or other adverse immigration consequences

of a guilty plea.1 (Padilla, supra, 559 U.S. at pp. 368-369.) In that case, the court held

Padilla had adequately alleged his defense counsel's performance was constitutionally

deficient by telling him before he pleaded guilty that he did not have to worry about his


1      However, when the deportation consequences of a guilty plea are unclear or
uncertain, defense counsel "need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration consequences." (Padilla,
supra, 559 U.S. at p. 369, fn. omitted.)

                                             10
immigration status. (Id. at pp. 359, 374.) Because the immigration statute in that case

was clear that removal would be a consequence for Padilla's conviction, Padilla held that

his counsel had performed deficiently by providing him "false assurance that his

conviction would not result in his removal from this country." (Id. at p. 368.)

       In Chaidez v. U.S. (2013) 568 U.S. ___, 133 S.Ct. 1103, the United States

Supreme Court held that its decision in Padilla did not apply retroactively to guilty pleas

entered before Padilla was issued. (Chaidez, at pp. ___, ___, 133 S.Ct. at pp. 1105,

1113.) In that case, Chaidez's counsel failed to advise her she could be subject to

deportation before she pleaded guilty to aggravated felonies. (Id. at p. ___, 133 S.Ct. at

p. 1106.)

       In this case, Linares asserts he was denied his Sixth Amendment right to effective

assistance of counsel when his counsel affirmatively misadvised him that his plea of

guilty to a Health and Safety Code section 11378 offense would not have any adverse

immigration consequences if that conviction was later expunged. For purposes of this

appeal, we assume arguendo that Linares's defense counsel performed deficiently by so

misadvising him, and therefore his Sixth Amendment right to effective assistance of

counsel was violated. (Padilla, supra, 559 U.S. at p. 368; see also Chaidez v. U.S.,

supra, 568 U.S. ___, 133 S.Ct. at p. 1105.)

                                              C

       Application of Kim to this case. Linares asserts the trial court erred by concluding

Kim controlled its disposition of his motion to withdraw his guilty plea because Kim did


                                              11
not involve affirmative misadvice regarding adverse immigration consequences of a

guilty plea, but involved only a failure to advise regarding those immigration

consequences. Based on our reading of Kim, we conclude its holding applies to both

types of deficient performance by defense counsel.

       In Kim, the defendant filed a motion to vacate his conviction, seeking a writ of

error coram nobis based on an alleged mistake of fact that no one knew his guilty plea

would result in his deportation and therefore his guilty plea was not knowing, intelligent,

free or voluntary. (Kim, supra, 45 Cal.4th at p. 1089.) He also filed a nonstatutory

motion to vacate his conviction based on his defense counsel's failure to investigate the

immigration consequences and advise him against pleading guilty to an offense that

would result in his mandatory deportation. (Kim, supra, 45 Cal.4th at pp. 1089, 1096.)

The trial court granted both motions. (Id. at p. 1090.) The Court of Appeal reversed the

trial court's order. (Id. at p. 1091.)

       In Kim, the California Supreme Court considered both motions together, noting "a

nonstatutory motion to vacate has long been held to be the legal equivalent of a petition

for a writ of error coram nobis [citations]." (Kim, supra, 45 Cal.4th at p. 1096.) After

discussing the procedural bars to the defendant's claim for relief, the court addressed the

merits of his motion for a writ of error coram nobis. (Id. at pp. 1101-1104.) Kim

concluded the defendant's alleged "new facts" for such a writ "speak merely to the legal

effect of his guilty plea and thus are not grounds for relief on coram nobis." (Id. at

p. 1102.) The court explained:


                                             12
          "Defendant's allegations that he would not have pleaded guilty had
          he been armed with these additional facts, or that counsel would
          have been successful in arranging a plea to a nondeportable offense
          had these facts been known, fundamentally misapprehends the
          pertinent inquiry. To qualify as the basis for relief on coram nobis,
          newly discovered facts must establish a basic flaw that would have
          prevented rendition of the judgment. [Citations.] Such facts often
          go to the legal competence of witnesses or litigants, or the
          jurisdiction of the court. 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
          pp. 1102-1103.)

The court also rejected the defendant's request for relief for ineffective assistance of

counsel, stating:

          "[W]ith regard to defendant's claims that his counsel was
          constitutionally ineffective for failing to investigate and for failing to
          negotiate a different plea, we conclude neither allegation states a
          case for relief on coram nobis. That a claim of ineffective assistance
          of counsel, which relates more to a mistake of law than of fact, is an
          inappropriate ground for relief on coram nobis has long been the
          rule. [Citations.] Although an attorney has a constitutional duty at
          least not to affirmatively misadvise his or her client as to the
          immigration consequences of a plea [citation], any violation in this
          regard should be raised in a motion for a new trial or in a petition for
          a writ of habeas corpus." (Kim, supra, 45 Cal.4th at p. 1104.)

       The court rejected the defendant's suggestion that it should expand the traditional

coram nobis procedure to allow claims such as those raised in his motion. (Kim, supra,

45 Cal.4th at pp. 1104-1107.) It declined to expand that procedure to resemble a

generalized postconviction remedy available to persons no longer in custody to provide

relief in every case in which there has been an erroneous or unjust judgment merely

because no other remedy exists. (Id. at p. 1105.) The court noted criminal defendants

                                             13
"have ample opportunities to challenge the correctness of the judgments against them."

(Ibid.) Defendants can move to withdraw a guilty plea, appeal a judgment of conviction,

file a petition for a writ of habeas corpus while in actual or constructive custody, and seek

a pardon from the Governor. (Id. at pp. 1105-1106.) Kim stated: "In short, criminal

defendants do not lack reasonable opportunities to vindicate their constitutional rights or

otherwise correct legal errors infecting their judgments." (Id. at p. 1106.) To the extent

those established remedies are inadequate, Kim noted "the Legislature has enacted

statutory remedies to fill the void," citing, as examples, Penal Code sections 1016.5 and

1473.6, and former Penal Code section 12021, subdivision (c)(2). (Kim, at p. 1106.)

Accordingly, Kim stated: "Because the Legislature remains free to enact further statutory

remedies for those in defendant's position, we are disinclined to reinterpret the historic

writ of error coram nobis to provide the remedy he seeks." (Id. at p. 1107.) The court

noted the Legislature "has impliedly recognized the existence of the common law writ

and can modify it should it so desire." (Ibid.) Therefore, Kim concluded the trial court

abused its discretion in granting relief to the defendant. (Id. at p. 1109.)

       Based on our reading of Kim, we, like the trial court below, conclude that decision

is dispositive of Linares's motion to withdraw his guilty plea and vacate the judgment.

First, as Kim holds, a claim of ineffective assistance of counsel cannot be remedied by a

writ of error coram nobis because that claim involves a mistake of law and not fact.

(Kim, supra, 45 Cal.4th at p. 1103.) Furthermore, any error in the failure to advise, or in

affirmatively misadvising, a criminal defendant regarding the immigration consequences


                                              14
of a guilty plea does not affect a court's ability or jurisdiction to render judgment. (Id. at

p. 1103.) As Linares appears to concede, Kim holds that a defendant denied effective

assistance of counsel in these circumstances has certain remedies, including a Penal Code

section 1018 motion to withdraw, Penal Code section 1016.5 motion, motion for new

trial, direct appeal, or petition for writ of habeas corpus. (Kim, at pp. 1093, 1103, 1105-

1106; see also People v. Shokur (2012) 205 Cal.App.4th 1398, 1404.) Assuming

arguendo that none of those remedies could provide relief to Linares in the circumstances

of this case because he did not learn of his counsel's misadvice until after he was released

from actual or constructive custody, Kim holds the traditional coram nobis procedure

does not apply to his type of case and declines to expand that procedure to provide a

generalized postconviction remedy available to persons no longer in custody to provide

relief in every case in which there has been an erroneous or unjust judgment merely

because no other remedy exists. (Kim, at p. 1105.) Kim held, in effect, that it is within

the power of the Legislature, and not the courts, to provide a statutory remedy for those

exceptional cases in which existing statutory or common law remedies are inadequate.

(Id. at pp. 1106-1107.)

       Contrary to Linares's assertion, we conclude the holding in Kim applies to this case

even though Kim involved a counsel's failure to advise the defendant regarding

immigration consequences and this case involves a counsel's affirmative misadvice

regarding immigration consequences. In both situations, the defendant is denied effective

assistance of counsel in violation of the Sixth Amendment, but nevertheless there is no


                                              15
writ of error coram nobis or other nonstatutory motion that can provide a defendant with

relief for such violation after he or she has been released from actual or constructive

custody.

       To the extent Linares asserts his motion to withdraw was not a motion for a writ of

error coram nobis but was another type of nonstatutory motion to withdraw a guilty plea,

he does not cite any case or other authority showing such a nonstatutory motion exists to

provide him with relief in the circumstances of this case. In fact, Kim stated a motion for

a writ of error coram nobis and a nonstatutory motion to vacate a conviction are legally

equivalent and should be considered together. (Kim, supra, 45 Cal.4th at p. 1096.)

Because Kim held that both motions could not provide relief where defense counsel failed

to advise the defendant of the immigration consequences of a guilty plea, we hold there is

no nonstatutory motion that can provide Linares with relief in this instance. To the extent

People v. Castaneda (1995) 37 Cal.App.4th 1612, cited by Linares, can be read as

providing such a nonstatutory remedy, we conclude it was subsequently overruled by

Kim. Furthermore, to the extent Linares asserts Castaneda supports the existence of a

nonstatutory motion to vacate a conviction based on fraud or other fact overreaching a

defendant's free will or judgment, he does not show any such facts existed in this case.

Linares does not assert there was any extrinsic fraud that made his guilty plea void.

Rather, he asserts there was intrinsic fraud (i.e., misrepresentation by his counsel when he




                                             16
gave Linares affirmative misadvice regarding the immigration consequences of his guilty

plea).2

          Those circumstances do not support a nonstatutory motion to vacate his conviction

in the circumstances of this case. The historical purpose of the writ of error coram nobis

was to obtain relief for errors of fact; for example, the loss of a valid defense because of

facts not presented on behalf of the defendant because of extrinsic fraud, which if known

would have prevented the rendition and entry of the judgment. (Kim, at pp. 1092, 1094.)

As Kim stated, "facts that have justified issuance of the writ [of error coram nobis] in the

past have included . . . [facts] that a defendant's plea was procured through extrinsic fraud

. . . ." (Id. at p. 1102, italics added.) We conclude intrinsic fraud cannot provide a basis

for a writ of coram nobis or other nonstatutory relief. We decline Linares's suggestion

that we follow Castaneda instead of Kim and create a nonstatutory remedy allowing him

to withdraw his guilty plea in the circumstances of this case.

          Although Linares primarily relies on the United States Supreme Court's decisions

in Padilla and Chaidez as support for his assertion that there should be a remedy in his

case, neither decision discusses the procedures or remedies that the Sixth Amendment

requires in circumstances in which defense counsel fails to advise, or affirmatively

misadvises, a defendant regarding clear immigration consequences of a guilty plea.

Rather, those cases hold only that failure to advise or affirmative misadvice violates a

2     Contrary to Linares's assertion, the alleged affirmative misadvice that his counsel
gave him could not, as a matter of law, constitute circumstances showing his will was
overcome when he pleaded guilty. Linares does not cite any case showing otherwise.

                                              17
defendant's Sixth Amendment right to counsel. "Padilla does not require states to

provide an avenue for noncitizens to challenge their convictions based on an erroneous

immigration advisement when no other remedy is presently available." (People v.

Shokur, supra, 205 Cal.App.4th at p. 1405.) Furthermore, there is nothing in Padilla or

Chaidez that undermines, contradicts, or requires reassessment of the California Supreme

Court's holding in Kim. We are bound to apply Kim to this case and uphold the trial

court's order denying Linares's motion to withdraw his guilty plea and vacate his

conviction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To

the extent Linares asserts Kim's reasoning is wrong, it is not for us as a court subordinate

to the California Supreme Court to reconsider its reasoning. Rather, Linares's argument

is more appropriately addressed to the Supreme Court and/or the Legislature. We

conclude the trial court did not abuse its discretion by denying Linares's motion to

withdraw his guilty plea and vacate his conviction. (Cf. Kim, supra, 45 Cal.4th at

pp. 1101-1104, 1109; People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1144-1448;

People v. Shokur, supra, 205 Cal.App.4th at pp. 1407-1408.)

                                             III

                                  Remaining Contention

       Linares also contends the trial court erred by denying his motion to withdraw his

guilty plea and vacate his conviction because his plea form did not show whether his

counsel gave him correct advice regarding the immigration consequences of his guilty

plea. However, that argument is moot considering our conclusion above. Assuming


                                             18
arguendo that Linares's counsel did not, in fact, properly advise him of the immigration

consequences of his guilty plea, we nevertheless held above there is no writ of error

coram nobis or other nonstatutory remedy that can provide him with relief in the

circumstances of this case. Linares's assertion regarding the effect of his plea form does

not affect our disposition of this appeal.

                                       DISPOSITION

The order is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


HALLER, J.




                                             19
