Filed 2/27/13 P. v. Martinez CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B234986

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA074026)
         v.

LUIS F. MARTINEZ,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, James D.
Otto, Judge. Dismissed.
         Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
                                                ________________
       Luis F. Martinez appeals from an order denying his nonstatutory motion to vacate
his 16-month state prison sentence, which was imposed after he admitted he had violated
the terms and conditions of his probation. Martinez contends the court erred in denying
his motion to vacate because the trial court did not advise him of all his due process
rights before accepting his admission and revoking probation and his counsel was
ineffective in failing to warn him of the immigration consequences of his admission. He
also contends the summary revocation of his probation on April 26, 2010 was improper
and, as a result, the court lacked jurisdiction to formerly revoke his probation at the
September 20, 2010 probation revocation hearing. Because the motion, properly
considered a petition for writ of coram nobis, failed to state a prima facie case for relief,
we dismiss the appeal.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Martinez’s Guilty Plea and Receipt of Probation
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       Martinez was charged with five counts of forgery (Pen. Code, § 475, subd. (a))
and one count of counterfeiting (§ 487, subd. (a)). Pursuant to a negotiated agreement, in
May 2007 Martinez pleaded guilty to two counts of forgery and one count of
counterfeiting. The remaining counts were dismissed. Imposition of sentence was
suspended, and Martinez was placed on three years of formal probation.
       2. Summary Revocation of Probation on April 26, 2010
       On April 26, 2010 the court summarily revoked Martinez’s probation based on
information in a report from his probation officer. Martinez did not appear at the April
26, 2010 hearing, and a bench warrant issued.
       3. Formal Revocation of Probation and Imposition of Sentence on September 20,
          2010
       A formal probation violation hearing was held on September 20, 2010. Martinez
appeared and admitted he had violated the terms and conditions of his probation. Before
accepting his admission, the court advised Martinez he had “a right to a probation
violation hearing, a right to be represented at that hearing, a right to use the court process

1      Statutory references are to the Penal Code.

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to obtain witnesses on your own behalf, a right to confront and cross-examine those
witnesses [and] a right to not incriminate yourself. By admitting the probation violation,
[you will] be incriminating yourself. You have a right to present a defense, subpoena
witnesses, as I said, at no cost, a right to appeal. Have you discussed these rights and do
you waive these rights?” Martinez informed the court he understood and wished to waive
his rights. The court revoked probation and sentenced Martinez to the low term of
16 months in state prison.
       4. Martinez’s Motion To Vacate His Sentence
       On June 22, 2011 Martinez moved to vacate his sentence and requested another
probation violation hearing. Martinez argued the advisement of his due process rights
was deficient because the court did not provide him with written notice of the probation
violation or advise him of his right to be heard in person and present documentary
evidence. The court denied the motion, finding Martinez had failed to make a prima
facie showing that “there was not a proper probation violation submitted to the court.”
The court also found Martinez had been properly advised of his rights before his
admission was accepted and his probation revoked.
       Martinez obtained a certificate of probable cause (Cal. Rules of Court, rule 8.304)
and appealed from the denial of his motion to vacate the sentence imposed following
revocation of his probation. Martinez has completed his sentence and is now in federal
custody awaiting deportation proceedings.
                                       DISCUSSION
       “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. Kim (2009) 45 Cal.4th 1078, 1096
(Kim); accord, People v. Shipman (1965) 62 Cal.2d 226, 229, fn. 2.) To obtain the writ,
the petitioner must show, among other things, “‘“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, at p. 1102; see also id. at p. 1092 [“‘“[t]he 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

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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”’”].)
       Martinez failed to make a prima facie showing for coram nobis relief. Quite apart
from whether Martinez exercised the requisite due diligence in bringing the motion (see
Kim, supra, 45 Cal.4th at p. 1096 [“‘[i]t is well settled that a showing of diligence is
prerequisite to the availability of relief by motion for coram nobis’”]; People v.
Castaneda (1995) 37 Cal.App.4th 1612, 1618 [burden falls to petitioner seeking coram
nobis relief to explain and justify delay]), an issue neither he nor the People address, none
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of his claims presented a prima facie case for coram nobis relief.
       Martinez contends he was not advised of the full panoply of his due process rights
before admitting to the probation violation as required under Morrissey v. Brewer (1972)
408 U.S. 471, 488-489 [92 S.Ct. 2593, 33 L.Ed.2d 484] and People v. Vickers (1972)
8 Cal.3d 451. That argument, which could have been properly presented in a petition for
habeas corpus, is not cognizable in a petition for writ of coram nobis: It does not present
any fact of which the court was unaware, and if made aware, would have prevented
rendition of judgment.
       His jurisdiction argument also did not present a basis for coram nobis relief. On
April 26, 2010 the trial court summarily revoked Martinez’s probation, thus tolling the
running of the probation period. (§ 1203.2, subd. (a) [summary revocation of probation
“shall serve to toll the running” of the probation period]; People v. Burton (2009)
177 Cal.App.4th 194, 199 [“[b]ecause of this tolling [under § 1203.2, subd. (a)], the
hearing on the violation, the court’s ruling, and the imposition of sentence may all occur
even after the probationary period would otherwise have expired”].) Thus, with the

2       In response to our invitation to Martinez and the People to address whether
Martinez presented a prima facie case for coram nobis relief, Martinez has asked us to
take judicial notice of the fact he is currently on bail in a new criminal case filed in
Tulare County and, as an alternative procedural basis for relief, to construe his appeal as
a petition for writ of habeas corpus. We deny both requests: Any habeas petition
directed to the new state case must be filed in the Superior Court for Tulare County.

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probation period tolled, the court had jurisdiction to revoke probation and impose
sentence on September 20, 2010.
        Although Martinez contends summary revocation was error because the court did
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not base it on a proper review of the probation report, and thus tolling did not apply, that
claim of legal error is not cognizable on a writ of coram nobis. (Kim, supra, 45 Cal.4th at
pp. 1093-1095 [claims asserting alleged legal errors cannot be vindicated on coram
nobis]; see generally People v. American Contractors Indemnity Co. (2004) 33 Cal.4th
653, 661 [observing the difference between court’s lack of fundamental jurisdiction and
an act in excess of jurisdiction; the former renders a judgment void, while the latter,
based on some legal error committed while the court had fundamental jurisdiction over
the parties and the subject matter, renders it merely voidable and subject to rules of
finality].)
        Martinez also contends his counsel was ineffective for advising him to admit to
the probation violation without requiring the court to provide him with the full panoply of
due process protections and for not advising him of the immigration consequences of his
admission to the probation violation. It is well settled ineffective assistance of counsel
claims are not cognizable in a petition for writ of coram nobis. (Kim, supra, 45 Cal.4th at
p. 1104 [“[t]hat a claim of ineffective assistance of counsel, which relates more to a
mistake of law than of fact, is an inappropriate ground for relief . . . has long been the
rule”]; In re Nunez (1965) 62 Cal.2d 234, 236 [same].)
        Because the claims asserted by Martinez are not properly raised by a petition for
writ of error coram nobis or a nonstatutory motion to vacate, the appeal must be
dismissed. (See People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [“[i]n an appeal from
a trial court’s denial of an application for the writ of error coram nobis, a reviewing court
initially determines whether defendant has made a prima facie showing of merit; if not,


3      Although Martinez contends the record is silent as to what kind of report the trial
court relied on in deciding to summarily revoke his probation, the superior court file,
together with the April 26, 2010 minute order, establish the report relied on by the trial
court was from Martinez’s probation officer.

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the court may summarily dismiss the appeal”]; People v. Dubon (2001) 90 Cal.App.4th
944, 950 [“trial court’s denial of a coram nobis petition is appealable order, unless the
coram nobis petition failed to state a prima facie case for relief”].)
                                      DISPOSITION
       The appeal is dismissed.



                                                   PERLUSS, P. J.


       We concur:



              WOODS, J.



              ZELON, J.




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