P. v. Ayon

Filed 3/22/06 P. v. Ayon CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County,

Jack P. Hunt, Judge. Affirmed.

Leslie Walker Van Antwerp III for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria Wilson and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

In 1997 Baldemar Ayon pleaded guilty to possession for sale of marijuana, admitted a firearm allegation and was sentenced pursuant to a plea agreement to 365 days in county jail and three years of formal probation. In September 2004, seven years later, Ayon moved to vacate the judgment of conviction on the ground he was a minor at the time of the offense and therefore entitled to a juvenile court disposition. The trial court denied the motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ayon and two confederates were arrested on November 4, 1996 and charged with possession for sale and sale or transportation of marijuana (Health & Saf. Code, §§ 11359, 11360, subd. (a)) after narcotics officers found 35 pounds of marijuana in a box inside the trunk of the car in which they were riding. At the preliminary hearing, held on March 19, 1997, counsel for Ayon moved to have the proceedings immediately suspended and the case certified to juvenile court because Ayon was still 17 years old when the offenses were committed. (Welf. & Inst. Code, § 604.) Counsel provided the court a birth certificate showing a birth date of November 16, 1978 and offered to submit additional evidence, including testimony from Ayon's family members. Ayon's counsel maintained the birth date of March 21, 1978 shown on the criminal complaint was incorrect.

The magistrate was not satisfied Ayon was actually the person identified in the birth certificate and concluded a preponderance of the evidence did not support a finding Ayon was a minor at the time the offenses were committed. The magistrate ruled the preliminary hearing should proceed, but suggested Ayon's counsel renew his request to transfer the case to juvenile court if Ayon was bound over to superior court. The parties agreed. The prosecutor also agreed to have her office investigate Ayon's true name and date of birth. At the conclusion of the preliminary hearing Ayon was held to answer on the allegations in the complaint.

An information filed on April 2, 1997 charged Ayon with possession for sale of marijuana (count 1) and sale or transportation of marijuana (count 2). It was also alleged as to both counts that a principal, not Ayon, was armed with a firearm during the commission of the offenses. (Pen. Code, § 12022.5, subd. (d).) The information corrected Ayon's name but listed the same birth date as had been shown on the criminal complaint. Ayon was arraigned on the information on April 8, 1997, and he entered a plea of not guilty. The trial court ordered a pre-plea probation report and set a trial date of June 4, 1997. Nothing in the record indicates defense counsel renewed the motion to transfer the case to juvenile court.

On June 4, 1997 Ayon pleaded guilty to count 1 of the information and admitted the special allegation. Pursuant to the plea agreement, he was granted three years of formal probation on condition he serve 365 days in county jail. Ayon initialed and signed a written waiver and guilty plea form, reflecting the terms of his negotiated plea.

On August 27, 2002 Ayon was permitted to withdraw his guilty plea and to enter a plea of not guilty, and the trial court dismissed the information against him (Pen. Code, § 1203.4). However, the trial court denied Ayon's request to reduce the felony offense to a misdemeanor.

On September 13, 2004 Ayon filed a motion to vacate the judgment, arguing he had been entitled to a juvenile court disposition because he was a minor at the time of the offense, a fact he never withheld from authorities. Ayon also asserted he had not knowingly and intelligently waived his right to a juvenile court disposition. According to the declaration filed by Ayon in support of his motion to vacate, Ayon told the police his birth date was November 16, 1978 when he was arrested on November 4, 1996.[1] The trial court denied the motion, finding Ayon had waived or forfeited his right to assert his minority in this case.

DISCUSSION

A motion to vacate a judgment in a criminal case is the functional equivalent of a petition for a writ of error coram nobis, and the two terms are often used interchangeably. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) A writ of error coram nobis relating to a judgment after a trial will issue only if (1) the defendant shows that some fact existed that, without his or her fault or negligence, was not presented to the court at the trial and that would have prevented the rendition of judgment, (2) the new evidence does not go to the merits of issues of fact determined at trial and (3) the defendant did not know and could not have discovered with due diligence the facts upon which he or she relies any earlier than the time of the petition. (People v. Shipman (1965) 62 Cal.2d 226, 230; People v. Dubon (2001) 90 Cal.App.4th 944, 950-951.)

Ayon did not meet the prerequisites for obtaining coram nobis relief. As the trial court explained, Ayon did not seek relief in a timely fashion, failing to provide any adequate explanation for the seven-year delay in seeking to vacate the judgment. (In re Watkins (1966) 64 Cal.2d 866, 870-872 [three-year delay precluded coram nobis relief].) Moreover, Ayon's motion is fundamentally flawed because it fails to raise any new facts, previously unknown to Ayon, that could not have been presented in the superior court prior to his plea. Simply stated, Ayon does not raise issues that are cognizable in a coram nobis petition or a motion to vacate the judgment.

Even if we were to consider the merits of Ayon's claim, however, we would agree with the trial court's conclusion Ayon waived or forfeited his purported right to treatment as a juvenile by failing to pursue the issue during the prosecution of this case. (People v. Level (2002) 97 Cal.App.4th 1208.) Although Ayon raised the issue of his minority before the magistrate, he failed to satisfy his evidentiary burden of proof; and the magistrate denied the motion following a hearing. (Welf. & Inst. Code, § 604; see People v. Nguyen (1990) 222 Cal.App.3d 1602.) Ayon and his counsel understood and agreed the motion could be renewed in superior court after he was held to answer. Nonetheless, Ayon elected to enter a guilty plea instead. â€