Filed 5/15/15 P. v. Quintanilla CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE



THE PEOPLE,                                                                B258482

         Plaintiff and Respondent,                                         (Los Angeles County
                                                                           Super. Ct. No. BA100177-01)
         v.

NELSON ORLANDO QUINTANILLA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,

Craig Richman, Judge. Affirmed.

         Alex Green, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.


                         ______________________________________________
       In August 1994, defendant and appellant Nelson Orlando Quintanilla pleaded no
contest to possession of a controlled substance for sale. Twenty years later, Quintanilla
filed a petition for a writ of error coram nobis and a motion to vacate his conviction “in
furtherance of justice.” The trial court held an evidentiary hearing and then denied
Quintanilla’s petition and motion. On appeal, Quintanilla’s counsel filed a brief finding
no arguable issues and asking the court independently to review the entire record under
People v. Wende (1979) 25 Cal.3d 436. We have done so and find no error. We
therefore affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Because Quintanilla waited twenty years to file his petition and motion, little
remains of the court file in this case.1 According to Quintanilla’s moving papers in the
trial court, the Los Angeles Police Department arrested him on August 16, 1994 for
possession for sale of a controlled substance -- 28 wafers of rock cocaine found in
a black plastic key box -- in violation of Health & Safety Code section 11351.5. On
August 31, 1994, Quintanilla pleaded no contest to the charge. Apparently in
accordance with Quintanilla’s plea agreement with the People, the court placed him on
probation and ordered him to serve 180 days in the county jail. Quintanilla was
deported in September 1994 and the court issued a bench warrant for his arrest in
April 1997. Twelve years later, in April 2009, Quintanilla was arrested on the warrant.
He admitted the probation violation, and the court gave him credit for time served
(21 actual days) and terminated probation. Federal authorities apparently took
Quintanilla into custody on March 7, 2014.
       On July 1, 2014, Quintanilla -- represented by counsel -- filed a pleading entitled
“Notice of Motion and Petition for Writ of Error Coram Nobis or, in the Alternative,
Motion To Vacate Conviction Pursuant to Penal Code [Section] 1385.” Quintanilla


1
       From the discussion at the hearing in the trial court, it appears counsel and the
court had at least the reporter’s transcript of the plea, the transcript of the preliminary
hearing for Quintanilla’s co-defendant, and a probation department report. None of
these documents are included in the record on appeal.

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asserted that he did not “possess any cocaine whatsoever” and that the police report was
“simply a lie.” Quintanilla contended that the LAPD later terminated the arresting
officer for misconduct: beating a suspect severely in February 1998. Quintanilla also
argued that his defense attorney was constitutionally ineffective because she did not ask
him about his citizenship or immigration status and did not “provide any . . . meaningful
consultation” about the immigration consequences of his plea.
       On July 21 and 22, 2014, the trial court conducted an evidentiary hearing on
Quintanilla’s petition. Quintanilla did not appear at the hearing because he was in
federal immigration custody. Quintanilla’s counsel submitted a declaration by
Quintanilla. Quintanilla stated in his declaration that, at the time of the plea, his public
defender did not “ma[k]e [him] aware” “of the severe immigration consequences of
[his] plea.” Quintanilla said his attorney “never even asked if [he] was a United States
citizen or what [his] immigration status was.” The district attorney objected to the
declaration because Quintanilla was not available for cross-examination.
       Quintanilla’s attorney subpoenaed the public defender who had represented him
in 1994 -- Clarisse Hamblin -- to appear and testify at the hearing. Hamblin testified
that she had no specific recollection of Quintanilla’s case. In 1994, Hamblin had been
a public defender for about five years. Hamblin said her practice in 1994 in advising
a client charged with a crime like Quintanilla’s was to explain “such a charge” would be
“moral turpitude,” and “there may be immigration consequences which may result in
the deportation of that individual from the country.” Hamblin testified it has always
been the “practice in [the public defender’s] office to advise clients of the immigration
consequences of their pleas.” Hamblin stated, “I always try to seek the best deal
possible for my client. Especially, if immigration is an issue in the case. I will certainly
advise my client that entering a plea that’s been offered by the district attorney[‘s]
office -- which I feel obligated to convey to the client at any time [the defendant is
offered] a deal by the district attorney’s office. I will advise that person what the
consequences, what I believe the consequences could be to their immigration status in
the United States, to their presence in the United States, i.e., that they could be deported


                                              3
if they entered into the plea.” Hamblin testified, “I think I would inquire into what the
specific immigration status of the individual was, what the charges were and what
potentially, what the potential consequences of entering a plea to those specific charges
were. Yes, I would probe further . . . . ” Hamblin said she knew what an “aggravated
felony” was under federal law, that she “would have attempted to get the best possible
deal for my client that was possible at that time,” and that “of course” she knew about
the nuances of immigration law. Hamblin testified that she “certainly” would have
evaluated whether the evidence against her client was strong or weak and she would
have considered counteroffers to different charges as well as possible motions.
       Quintanilla’s attorney submitted excerpts from the Rampart Area Corruption
Incident Public Report, dated March 1, 2000. According to the report, Los Angeles
Police Department Officer Brian Hewitt choked and beat an arrestee in February 1998.
The department fired Hewitt after a board of rights hearing. Hewitt apparently was the
officer who had arrested Quintanilla in this case in August 1994.
       At the conclusion of testimony, Quintanilla’s counsel contended the court should
grant Quintanilla a writ of error coram nobis based on the finding that several years
later Hewitt brutally beat an arrestee. Counsel argued that, at the time he entered his
plea deal with the prosecution, Quintanilla did not know “that Officer Hewitt later was
proven to be the thug that he was proven to be.” Quintanilla’s attorney also asked the
court to vacate his conviction in the interest of justice under Penal Code section 1385
because his public defender was constitutionally ineffective and his deportation by
federal authorities would leave his wife and his children bereft.
       The district attorney opposed Quintanilla’s request. She argued that Hewitt’s
partner, Officer Thornton, had testified at the co-defendant’s preliminary hearing that he
had seen Quintanilla drop an item on the street. According to the prosecutor, Thornton
testified he then saw Hewitt pick up the item -- the key box -- and show it to him. So,
argued the prosecutor, even if Hewitt were tainted there was another witness to
Quintanilla’s possession of the cocaine. The prosecutor also contended the court could
not “dismiss” Quintanilla’s case or vacate his conviction under section 1385 because the


                                            4
case had long since ended. As for the equities, the prosecutor noted that Quintanilla had
been deported soon after his conviction, had returned to the United States illegally, and
had had a number of avenues open to him over the previous twenty years to move to
withdraw his plea or challenge his conviction. He had not done so.
       The trial court denied the petition and motion. The court, citing the reporter’s
transcript of the plea proceeding, noted the deputy district attorney who took
Quintanilla’s plea “clearly . . . advised [him] during the course of his plea of the
immigration consequences of the plea.”2 The court stated Quintanilla “took advantage
of what he believed to be an advantageous disposition, pre-preliminary hearing,
knowing that the witnesses were available to come to court to testify and were actually
in court available to testify.” The court observed that Quintanilla was deported “within
a month of the plea and had there been any surprise concerning the deportation it would
have been raised at that point in time and was not.” The court also noted the court file
reflected a red flag of some sort indicating that the case might “fall within the Rampart
scandal,” and that Quintanilla did not raise any argument about Hewitt when he was
arrested on the warrant in 2009 and granted a termination of his probation with credit
for time served.
       Quintanilla appealed. His court-appointed counsel submitted a brief asking this
court independently to review the record under People v. Wende, supra, 25 Cal.3d 436.
On March 19, 2015, the court received a letter from Quintanilla stating that his family
needs him in the United States and that he has not suffered any convictions since 1994.
                                      DISCUSSION
       We review the trial court’s denial of Quintanilla’s petition for a writ and motion
to dismiss “in furtherance of justice” for abuse of discretion. (People v. McElwee

2
        As the district attorney advised Quintanilla at the time of his plea of the
immigration consequences, Quintanilla could not and did not move to vacate his plea
under Penal Code section 1016.5. His attorney noted at the hearing that Quintanilla also
did not qualify for habeas relief. (See People v. Villa (2009) 45 Cal.4th 1063, 1066
(Villa) [defendant “ineligible for relief by way of a writ of habeas corpus” because in
federal custody, not in California custody as a result of his 20-year-old conviction].)

                                             5
(2005) 128 Cal.App.4th 1348, 1352 [writ petition]; Polanski v. Superior Court (2009)
180 Cal.App.4th 507, 536 (Polanski) [motion under Penal Code section 1385].)
       1.      The Trial Court Did Not Err in Denying Quintanilla’s Petition
               for a 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.” (People v. Kim (2009) 45 Cal.4th 1078, 1091 (Kim).) “[T]he 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.’ ” (Kim, supra, 45 Cal.4th at p. 1091, quoting People v. Adamson (1949)
34 Cal.2d 320, 326-327.)
       The petitioner must meet several requirements. First, he “ ‘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.” ’ ” (Kim, supra, 45 Cal.4th at p. 1093, quoting People v.
Shipman (1965) 62 Cal.2d 226, 230 (Shipman).) Second, he “ ‘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.” ’ ” (Ibid.) “ ‘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.’ ” (Ibid.) Third, he “ ‘ “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
motion for the writ. . . . ” ’ ” (Ibid.)
       A petitioner must also “show due diligence when seeking such extraordinary
relief.” (Kim, supra, 45 Cal.4th at p. 1096.) “ ‘It is well settled that a showing of
diligence is prerequisite to the availability of relief by motion for coram nobis.’ ” (Id.,
at p. 1096, quoting People v. Shorts (1948) 32 Cal.2d 502, 512.) The “burden falls to


                                             6
defendant ‘to explain and justify the delay.’ ” (Kim, supra, 45 Cal.4th at p. 1096,
quoting People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.) “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.” (Kim, supra, 45 Cal.4th at p. 1097.)
       In the trial court, Quintanilla argued the “fact” that existed and was not presented
to the court at the time of his 1994 plea was “that Former Officer Hewitt was . . . an
officer whose trustworthiness was utterly lacking . . . due to his propensity . . . to engage
in egregious police misconduct against arrestees that he suspected of criminal behaviour
[sic].” Quintanilla acknowledged that Hewitt’s beating of a suspect did not take place
until three and a half years after his arrest and no contest plea. But, he contended, had
the prosecutor, defense counsel, and the court known in August 1994 that Hewitt would
be removed for misconduct several years later, “it is virtually inconceivable that
[Hewitt’s] police report . . . would have been the basis” for Quintanilla’s plea.
       Even if Hewitt’s character flaws existed in 1994 (though not manifested until
1998), and those flaws could be considered the requisite “fact” that would have
prevented Quintanilla’s conviction, Quintanilla has not shown due diligence. He
asserted in the trial court that he did not learn of Hewitt’s misconduct until his lawyer
told him about it in 2014. But, as the trial court noted, Quintanilla was deported almost
immediately after his August 1994 conviction. He returned to the United States that
same year. Plainly, within weeks of his plea, Quintanilla learned of the immigration
consequences (even if he somehow failed to hear what the prosecutor told him at the
time of his plea). Yet he took no action to seek to withdraw his plea or challenge his
conviction while the People still had an opportunity to go forward with their prosecution
and bring Quintanilla to trial. The Rampart scandal received considerable press
attention and the public report Quintanilla now cites was released on March 1, 2000,
more than 14 years before he petitioned for coram nobis. On this record, Quintanilla
has failed to show -- and cannot show -- that he could not have discovered the “facts”


                                              7
about Hewitt “ ‘ “in the exercise of due diligence . . . at any time substantially earlier
than the time of his motion for the writ.” ’ ” (Kim, supra, 45 Cal.4th at p. 1097, quoting
Shipman, supra, 62 Cal.2d at p. 230.)
       2.     The Trial Court Did Not Err in Denying Quintanilla’s
              Motion To “Dismiss” his Conviction in Furtherance of Justice

       Quintanilla moved, in the alternative, to “vacate” his plea and “resulting
conviction in this case, nunc pro tunc” under Penal Code section 1385. Quintanilla
argued the “interests of justice” would be served by such an order, because he was
“den[ied] . . . the right to effective representation as guaranteed by the 6th Amendment
to the United States Constitution,” Hewitt was later fired as a police officer, and
Quintanilla’s conviction (and, presumably, his deportation) would have a “devastating
effect” on his children.
       Penal Code section 1385 provides, in part, “The judge or magistrate may, either
of his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.” “ ‘A defendant has no right to
make a motion, and the trial court has no obligation to make a ruling, under
section 1385.’ ” (Polanski, supra, 180 Cal.App.4th at p. 527, quoting People v.
Carmony (2004) 33 Cal.4th 367, 375.) However, a defendant “ ‘does have the right to
“invite the court to exercise its power [by, for example, striking a count of an accusatory
pleading], and the court must consider evidence offered by the defendant in support of
his assertion that the dismissal would be in furtherance of justice.” ’ ” (Id. at p. 527.)
       Quintanilla did not cite any case in the trial court for the proposition that a court
may vacate a conviction under section 1385 long after the case has ended and probation
has been terminated, nor have we been able to find one. (Compare People v. Barraza
(1994) 30 Cal.App.4th 114, 121, fn. 8 [section 1385 “has never been held to authorize
dismissal of an action after the imposition of sentence and rendition of judgment”] with
People v. Orabuena (2004) 116 Cal.App.4th 84, 96-98 [court had authority to dismiss
disqualifying misdemeanor under section 1385 to render defendant eligible for
Proposition 36 drug treatment when court had suspended imposition of sentence and


                                              8
defendant was still on probation].) Nor should Quintanilla be permitted to circumvent
governing law limiting his procedural remedies for purported ineffective assistance of
counsel by asking the court to exercise its authority under the general provisions of
section 1385. (See Villa, supra, 45 Cal.4th 1063 [habeas not available to defendant
whose counsel “misadvised” him about deportation, because defendant no longer in
California custody]; People v. Shokur (2012) 205 Cal.App.4th 1398, 1401 [no
“nonstatutory motion safety net” for defendant who claimed his public defender did not
ask about his immigration status nor advise him conviction would result in removal].)
         In any event, the trial court did not abuse its discretion in concluding that
vacating Quintanilla’s plea and conviction twenty years after the fact would not be in
furtherance of justice. The lawyer who represented Quintanilla at the time of his plea
testified that she was quite familiar with immigration law and that she routinely advised
clients about the consequences of a plea. She tried to get the best offers she could for
her clients, taking into account the potential immigration consequences. The prosecutor
told Quintanilla at the time of his plea of the immigration consequences. Quintanilla
was deported “within a month” of his plea. He returned within a few months, and
continued to live in the United States for the next 20 years. As the trial court noted,
once he was deported in September 1994, Quintanilla obviously knew his conviction
would result -- indeed, had resulted -- in his removal from the United States. Yet he
took no action to come to court to seek to withdraw his plea at a time when the People
could have taken the case to trial -- while the prosecution still had its evidence (the
cocaine) and witnesses. Nor did Quintanilla make any effort to comply with the terms
of his probation. When he finally was apprehended on the warrant in 2009, Quintanilla
admitted the probation violation and served only 21 days in jail, never raising any issue
about immigration advisements or Hewitt’s 1998 misconduct.
         Finally, Quintanilla’s wife and children will no doubt suffer from his absence.
But the responsibility for that suffering must lie with Quintanilla, not the People or the
court.



                                               9
                                      DISPOSITION
       We find Quintanilla’s counsel on appeal has fully complied with his
responsibilities, that no arguable issues exist, and that the court properly denied the writ
petition and motion. Accordingly, we affirm.



       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                 EGERTON, J.*

WE CONCUR:




       EDMON, P. J.




       KITCHING, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


                                             10
