Filed 5/9/13 P. v. Prado CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037497
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC597908)

             v.

SALVADOR PRADO,

         Defendant and Appellant.



         Appellant Salvador Prado filed a petition in the Santa Clara Superior Court
seeking to vacate a conviction he sustained in 1999 for possessing a controlled substance
for sale. The petition presented an unusual difficulty, however, for the judgment he
sought to overturn had been rendered in Contra Costa County, not Santa Clara County.
This fact was apparently overlooked by the court below, which mistakenly supposed that
defendant was challenging a 2007 conviction he had sustained in Santa Clara County.
After reviewing the record in that case, the court denied the petition on the merits. On
appeal from that order, defendant contends that the court should not have adjudicated the
validity of either judgment. We agree, and will reverse with directions to dismiss the
petition without prejudice.
                                      BACKGROUND
       Petitioner is a citizen of Mexico. In 1999 he pled guilty in Contra Costa Superior
Court Case No. 115050-7MC to a charge of possessing a controlled substance for sale.
In 2001 he was convicted in Contra Costa Superior Court Case No. 0014381 of injuring a
spouse with a weapon and making criminal threats. He was sentenced on both
convictions to 44 months in prison. In 2003, he was deported to Mexico based on these
convictions.
       In July 2005, defendant was arrested in Santa Clara County on charges of
possessing methamphetamine and associated paraphernalia, and being under the
influence of a controlled substance. He failed to appear for a 2005 hearing. Warrants
issued, and in 2007 he was again arrested and charged, in Santa Clara Superior Court
Case No, CC597908, with the three 2005 offenses plus falsely identifying himself to a
police officer. The Contra Costa convictions were alleged as enhancements. Petitioner
pled no contest to all charges and admitted a strike prior and a prison prior. In taking the
plea, the court advised him of its potential immigration consequences. On
February 8, 2008, the court sentenced him to 28 months in prison.
       On August 24, 2011, defendant filed a 17-page “Petition for Writ of Error Coram
Nobis” with the clerk of the Santa Clara Superior Court.1 As originally captioned, the
petition bore the name of the Santa Clara court, but the docket number 04-115050, which
is manifestly a version of the number in the Contra Costa case. However the number of
the Santa Clara case, CC597908, had been written in by hand above the Contra Costa
number. The petition contained the following allegations: Defendant was presently

       1
          Petitioner had written to the court in May 2011 inquiring into the status of a
coram nobis petition he said he had mailed in February. The clerk replied that no such
document had been received. Petitioner again wrote in July, referring once again to a
petition filed in February. The clerk again denied receipt of any such filing. It was then
that defendant filed the petition now under review.

                                             2
serving time in a federal penitentiary, having been convicted in 2010 of “Illegal Reentry,
Title 8, U.S.C. §1326(a), (b)(2).” He had been “charged in this case on April 14, 1999”
with transporting methamphetamine and possessing it for sale. He entered a plea to those
charges in 1999 “before Hon. John C. Minney.”2 His privately retained attorney, James
DeFrantz, failed to inform him that conviction of possession for sale could subject him to
deportation. Instead counsel told him he was pleading to simple possession, which could
not provide a predicate for deportation.3 The court too failed to inform him of the
potential immigration consequences of conviction. The judge also failed to determine
that defendant needed an interpreter to understand the consequences of his plea.
       The petition did not expressly identify the venue where the described proceedings
took place. It prayed for “relief by Writ of Error Coram Nobis, or in the alternative, an
order to vacate judgement entered in this case, of June 17, 1999.”
       On September 19, 2011, without opposition or a hearing, the Santa Clara County
Superior Court denied the petition. Its order contained three explanatory paragraphs.
The first and second disposed of the claims of ineffective assistance of counsel on the
ground that such claims cannot sustain relief by coram nobis petition. (Citing People v.
Hyung Joon Kim (2009) 45 Cal.4th 1078, 1104; People v. Villa (2009) 45 Cal.4th 1063;
People v. Chien (2008) 159 Cal.App.4th 1283.) The third paragraph disposed of the


       2
        As of 1999, John C. Minney sat on the bench of the Superior Court of Contra
Costa County. (See People v. Scott (1999) 76 Cal.App.4th 411.)
       3
          The petition attributed other lapses to Attorney DeFrantz, including failure to
explain a written waiver of rights form, failure to explain the constitutional rights
themselves, and failure to challenge defendant’s conviction after sentencing despite
having been paid to do so. Defendant alleged that DeFrantz had since lost his license to
practice law. Online records of the state bar confirm that an attorney named James
DeFrantz resigned on March 15, 2001, “with charges pending.” (State Bar of CA ::
James Earl Defrantz: <http://members.calbar.ca.gov/fal/Member/Detail/165780> (as of
May 6, 2013).)

                                             3
claim of inadequate advisements by the court, as follows: “To the extent Petitioner may
be claiming the court never advised him pursuant to PC § 1016.5 any such claim must be
rejected. Within the transcript of the change of plea, at page 9 lines 6-25, the full and
correct advisement is recorded and acknowledged by petitioner personally.” The court
did not address the claim of insufficient translation services.
       Defendant brought this timely appeal.
                                        DISCUSSION
       Defendant challenges the order denying his petition on four grounds: (1) The
Santa Clara court lacked jurisdiction to adjudicate the validity of the conviction defendant
challenged, which was his 1999 conviction in Contra Costa County; (2) the court also
lacked jurisdiction to adjudicate the validity of the 2008 Santa Clara conviction, since
that judgment was final and no proper vehicle was before the court by which to overturn
it; (3) the court’s adjudication of the Santa Clara conviction violated defendant’s right to
due process since he had raised no issue concerning that conviction and had been allowed
no notice or opportunity to be heard concerning it; and (4) the adjudication of issues
outside the pleading was reversible procedural error. Respondent’s brief is devoted
almost entirely to the question whether the Santa Clara court had fundamental jurisdiction
to adjudicate the validity of the Contra Costa judgment and whether defendant forfeited
any objection to its doing so by filing his challenge in Santa Clara County.
       Defendant is certainly correct in contending that the court below adjudicated an
issue not tendered to it, and failed to adjudicate the issue tendered to it. As respondent
concedes, the petition “was directed solely at [defendant’s] 1999 conviction from Contra
Costa County.” This intention appears throughout the petition, beginning with the
original typewritten docket number, the dates of conviction, and the name of the
sentencing judge, all of which point to the Contra Costa matter and not the Santa Clara
matter. In addition, the petition repeatedly refers to the allegedly deficient performance

                                              4
of retained Attorney DeFrantz, whereas the hearing transcripts in the Santa Clara matter
identify defendant’s attorney as Deputy Public Defender Sung Lee. Further, the petition
sought to set aside a conviction for possession of a controlled substance for sale, whereas
defendant’s only felony conviction in Santa Clara County was for simple possession.
       Respondent also concedes that “the court erred in ruling on the validity of
[defendant’s] 2008 [Santa Clara] conviction when his petition was limited solely to his
1999 conviction.” Again, the concession is well taken. As respondent explicitly
acknowledges, the court’s misconception is reflected in the final paragraph of its order,
where it describes the contents of a “transcript of the change of plea.” There is no
indication that the court had access to a transcript of any of the Contra Costa proceedings.
It could not properly rely on such a transcript without taking judicial notice of it, and it
could not properly take judicial notice without giving the parties an opportunity to
comment and making the noticed materials part of the record. (Evid. Code, §§ 455, 452,
subd. (d).) Since the court did neither of these things, we must presume that it did not
consider any transcripts from the Contra Costa matter. (See Evid. Code, § 664
[presumption that official duty has been regularly performed].) It follows that court’s
description of a change-of-plea transcript can only refer to the transcript of the hearing
held February 28, 2008, in the Santa Clara matter.
       Remarkably, however, respondent urges us to affirm the judgment despite these
seemingly critical errors. According to respondent, their only effect is that “the final
paragraph of the court’s order must be set aside.” “[O]therwise,” respondent insists, the
order must “be affirmed.” No adequate rationale is offered for this disposition. Certainly
we cannot treat the order as a proper adjudication of the validity of the Contra Costa
judgment when the trial court neither attempted nor intended to adjudicate that issue.
The court manifestly intended to rule on only one conviction. The last paragraph reveals
that it was the wrong one. We cannot convert its order into an adjudication of the issue

                                              5
actually tendered merely by striking the paragraph that discloses its intention to
adjudicate a different issue.
       Nor does respondent identify any ground on which the court could have
adjudicated the petition, properly construed, adversely to defendant. It is true that the
first two paragraphs of the court’s order, if sound, would apply equally to any coram
nobis petition challenging a conviction on grounds of ineffective assistance of counsel.
To the extent the court’s rationale would dictate that a challenge to the Contra Costa
conviction also be rejected. But this would leave at least two other grounds of relief
unadjudicated—the Contra Costa court’s alleged failure to give adequate advisements
concerning the immigration consequences of the plea, and its alleged failure to
adequately inquire into the necessity for interpretive services. The court below disposed
of the first such ground by referring to the transcript of the Santa Clara plea-taking. It
would seem that a similar examination of the Contra Costa record, or other evidentiary
inquiry, would be necessary to determine the soundness of defendant’s remaining
challenges to the Contra Costa judgment. Respondent does not suggest that the court
below had any basis on which to adjudicate these questions, and it seems plain that it did
not.
       It thus seems clear that the order before us cannot be affirmed. The difficult
question is what further proceedings, if any, should take place in the court below. We
have concluded that whether or not the court has “fundamental jurisdiction” to vacate a
Contra Costa judgment of conviction, it should not do so, at least in the absence of
extraordinary circumstances. While no court has apparently had occasion to so rule
before now, we think it plain that for no superior court should entertain a coram nobis
petition challenging a judgment of conviction rendered in another county. Rather,
underlying procedural principles as well as considerations of comity, convenience, and



                                              6
efficiency dictate that such a petition should be stayed or dismissed without prejudice to
its adjudication in the court that rendered the challenged conviction.
       Although the pleading initiating the present proceedings was styled a petition for
coram nobis, it was actually in part a statutory motion to vacate under Penal Code section
1016.5 (§ 1016.5). This fact was recognized by the trial court, which wrote that
defendant’s plea for relief must be denied “[t]o the extent [he might] be claiming the
court never advised him pursuant to PC § 1016.5.” Section 1016.5 prescribes an
“advisement” concerning immigration consequences, which it requires trial courts to
“administer” when receiving a plea of guilty or nolo contendere. (§ 1016.5, subd. (a).) If
a court fails to do so and the defendant shows that this failure may have immigration
consequences for him, “the court, on defendant’s motion, shall vacate the judgment and
permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea
of not guilty.” (Id., subd. (b).) Moreover, “Absent a record that the court provided the
advisement required by this section, the defendant shall be presumed not to have received
the required advisement.” (Ibid.; see People v. Dubon (2001) 90 Cal.App.4th 944, 953
[presumption is rebuttable and affects burden of proof].)
       Defendant alleged in his petition that the trial court failed to “explain to
[defendant] that his plea and conviction would result in a change in his immigration
status.” As the trial court recognized, this is an invocation, albeit arguably imperfect, of
section 1016.5. To that extent, then, the pleading must be viewed as a motion under that
statute, not a petition for coram nobis relief. This follows from the fact that relief is
available by coram nobis only when “ ‘no other remedy exists’ ” (People v. Hyung Joon
Kim, supra, 45 Cal.4th 1078, 1091) and “is unavailable when a litigant has some other
remedy at law” (id. at p. 1093). Thus the statutory remedy provided by section 1016.5
“supplants” the common law remedy “where the trial court fails to advise a defendant
concerning specified immigration consequences and/or the defendant is unaware of

                                               7
same.” (People v. Carty (2003) 110 Cal.App.4th 1518, 1524, capitalization & italics
omitted.) It follows that defendant’s exclusive remedy for the court’s alleged failure to
communicate the required advisements is a motion under that section.4
       A motion to vacate a judgment under section 1016.5 can only be entertained by the
court that rendered the judgment. This follows because “a motion is not an independent
remedy. It is ancillary to an on-going action . . . .” (Lewis v. Superior Court (2008) 169
Cal.App.4th 70, 77.)5 Naturally, then, a motion “must be made in the court in which the
action is pending.” (Code Civ. Proc., § 1004.) Therefore when section 1016.5 refers to a
motion before “the court,” it must be understood to refer to the court that received the
plea and rendered the judgment of conviction. (See 6 Witkin, Cal. Procedure (5th ed.
2008) Proceedings Without Trial, § 3, p. 430 [“A motion may be made only in a pending
main action or proceeding.”].) It follows that such a motion can only be entertained by
that court. And since the motion provides the exclusive remedy where it applies, relief
on the grounds stated cannot be obtained from any other court.


       4
         That the pleading is styled a coram nobis petition does not preclude its
interpretation as a motion under the statute. (See People v. Villa, supra, 45 Cal.4th 1063,
1067-1068, quoting Escamilla v. Department of Corrections & Rehabilitation (2006) 141
Cal.App.4th 498, 511 [“ ‘The label given a petition, action or other pleading is not
determinative; rather, the true nature of a petition or cause of action is based on the facts
alleged and remedy sought in that pleading.’ ”].)
       5
          In Lewis v. Superior Court, supra, 169 Cal.App.4th at p. 77, this court went on
to quote People v. Sparks (1952) 112 Cal.App.2d 120, 121, to the effect that a motion
“ ‘ “is confined to incidental matters in the progress of the cause,” ’ ” and “ ‘ “relates to
some question collateral to the main object of the action and is connected with, and
dependent on, the principal remedy.” ’ ” That language was unnecessary to our decision,
and on further examination we find it inaccurate and potentially mischievous. Many
motions are more than “incidental” to the main cause; indeed, some motions can be
dispositive of the underlying matter, including (in the criminal context alone), motions for
acquittal and motions, such as that expressly contemplated by section 1016.5, to vacate
the judgment.

                                              8
       Indeed, a similar logic would seem to apply to coram nobis proceedings in
general, at least when brought in the trial court rather than a reviewing court. (See Pen.
Code, § 1265 [requiring that where conviction was affirmed on appeal, coram nobis relief
be sought in affirming court].) A petition for coram nobis, at least in the trial court, is in
essence a motion to vacate the judgment. (See People v. Hyung Joon Kim, supra, 45
Cal.4th 1078, 1096 [“a nonstatutory motion to vacate has long been held to be the legal
equivalent of a petition for a writ of error coram nobis”]; People v. Adamson (1949) 34
Cal.2d 320, 325 [defendant’s petition for coram nobis was “in legal effect, a motion to
vacate a judgment”]; 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
Judgment, § 199, p. 244 [“the remedy is, in effect, merely a motion to vacate the
judgment, and might appropriately be so designated”]; cf. People v. Gallardo (2000) 77
Cal.App.4th 971, 982 [“the terms ‘motion to vacate’ and ‘petition for writ of error coram
nobis’ are often used interchangeably and the two procedures are similar in scope and
effect”].) Of particular relevance is the fact that, like a motion to vacate, it is viewed as a
further proceeding in the original case. (See People v. Allenthorp (1966) 64 Cal.2d 679,
681 [“The petition for writ of error coram nobis operates as a part of the proceedings of
the original case; it does not introduce a new or separate adversary proceeding.”].) This
conception is apparently shared by the clerk of the Santa Clara court, who did not assign
a new docket number to defendant’s petition but docketed it under the number of the
original case against him in that court.
       It follows that, just as a motion must be adjudicated by the court hosting the
underlying action, so a petition for coram nobis relief must—at least in the absence of
exceptional circumstances—be heard by the court that entered the underlying conviction.
This is true whether or not the superior court in one county has “jurisdiction in the
fundamental sense” to entertain challenges to a criminal conviction rendered in another
county. Even if it has the naked power to do so, a court should ordinarily refrain from

                                               9
exercising such a power, no matter who seeks to invoke it. Rather, in the absence of
some good reason to do otherwise, a court asked to determine the validity of a judgment
of conviction from another county should decline to do so, and should either stay the
matter or dismiss it without prejudice to relief in the county where the judgment was
rendered.
       This conclusion is supported by a number of additional factors, some grounded in
procedural theory, and some in concrete considerations of efficiency and convenience.
To begin with, “[i]t is often said that where two courts have concurrent jurisdiction over a
class of cases, the one that first assumes jurisdiction over the subject matter of a
particular controversy takes it exclusively, and the other court’s jurisdiction may no
longer be asserted over that subject matter.” (2 Witkin, Cal. Procedure (5th ed. 2008)
Jurisdiction, § 427, p. 1077.)6 Insofar as a coram nobis proceeding is “a part of the
proceedings of the original case” rather than “a new or separate adversary proceeding”
(People v. Allenthorp, supra, 64 Cal.2d at p. 681), the court presiding over the original
case may be said to have “assume[d] jurisdiction” over its subject matter to the exclusion
of any other court. In this view even if another court might otherwise possess
fundamental jurisdiction to determine the validity of the judgment, the original court’s


       6
           “Under the rule of exclusive concurrent jurisdiction, ‘when two superior courts
have concurrent jurisdiction over the subject matter and all parties involved in litigation,
the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject
matter and all parties involved until such time as all necessarily related matters have been
resolved.’ [Citations.] The rule is based upon the public policies of avoiding conflicts
that might arise between courts if they were free to make contradictory decisions or
awards relating to the same controversy, and preventing vexatious litigation and
multiplicity of suits. [Citations.] The rule is established and enforced not ‘so much to
protect the rights of parties as to protect the rights of Courts of co-ordinate jurisdiction to
avoid conflict of jurisdiction, confusion and delay in the administration of justice.’
[Citation.]” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-
787.)

                                              10
jurisdiction would continue—and would remain exclusive—with respect to any motion
for relief from the judgment.
       The rule of prior exclusive concurrent jurisdiction is sometimes said not to be
jurisdictional in the sense that it categorically ousts a second court of power to act, but to
rest instead on considerations of discretion and policy. (See 2 Witkin, supra,
Jurisdiction, § 427, pp. 1077, 1078 [contrasting “Jurisdictional Theory” with “Comity
Theory”].) This might open the door, at least in theory, to one court adjudicating a
challenge to a criminal judgment rendered in another county. We cannot, however,
readily imagine circumstances that would justify such a procedure. The relative
inconvenience of attempting to adjudicate such matters in any county other than the
originating one is obvious. It is the originating county’s clerk of court who is charged by
statute with the obligation to preserve the records of the case. (See Gov. Code, §§ 69846,
68152, subds. (e)(2), (j)(7).) For a court in another county to review those records,
they—or certified copies—must be transmitted to that court, and the procedures for
taking judicial notice of them must, on demand, be pursued. If contested issues of fact
are presented, the most likely witnesses—attorneys and other participants in the original
prosecution—are more likely to be found in and around the rendering court than in
another county. The office of the district attorney in the rendering county may well claim
a distinct interest in the matter, but could not be assured of adequate notice and
opportunity to participate unless the court fashioned special procedures to ensure that
end. And if the court determined that the defendant was entitled to appointed counsel
(see People v. Shipman (1965) 62 Cal.2d 226, 231), it would have to decide which public
defender’s office can, and should, be required to undertake that assignment. The office in
the county where the challenge is brought may well believe that its budget, and the
taxpayers who finance it, should not have to bear this additional burden; but the office in
the originating county might protest with some justice that it should not be required to

                                              11
bear the expense involved in travel from its location to a court in a distant county.
Moreover, the power of a court to appoint an officer outside its county is, we feel safe in
saying, an untested issue of considerable complexity.
       Given these inefficiencies and complications, we are frankly surprised to find the
Attorney General implicitly endorsing a regime that would seem to entitle any criminal
defendant to seek coram nobis relief in any of California’s 56 counties, regardless of
where the challenged judgment was entered. Respondent characterizes the question as
one only of venue, and cites the Supreme Court’s holding in People v. Simon (2001) 25
Cal.4th 1082, 1104, that a defendant forfeits objections to venue by failing to lodge a
timely objection. Insofar as the question really is one of venue, it is undoubtedly true that
the defendant’s filing in the wrong county effects a forfeiture of the objection. But we do
not believe the court in such a case should or properly can even reach the question of
venue. Insofar as the proceeding is a continuation of the underlying case, venue has
already been laid in the originating county. Viewed in the analytical framework proposed
by respondent, the question is not one of forfeiture but of whether the defendant is
entitled to unilaterally change the venue already fixed in the originating county. On the
face of such a petition, it belongs in another county—not because that is the correct
“venue” but because it is the correct forum, having first asserted jurisdiction over the
matter and having the almost certain ability to adjudicate the defendant’s claim for relief
more efficiently and completely than any other forum.
       In sum, the court below erred by treating the petition as one challenging a Santa
Clara conviction. Had the court viewed the petition correctly—as one challenging a
Contra Costa conviction—the court would have erred by deciding it on the merits. Any
such challenge should and must be heard by the courts of that county. We must therefore
reverse the order under review, but since no further substantive proceedings can take
place on the present petition, we will direct the court to dismiss it without prejudice.

                                             12
                                       DISPOSITION
       The order denying the petition for coram nobis relief on the merits is reversed.
The trial court is directed to dismiss the petition without prejudice to further proceedings
in a proper court.



                                           ______________________________________
                                                      RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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