P. v. Eves

Filed 10/30/07 P. v. Eves CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John I. Kelly, Judge.

George A. Boyle, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In January 1996, a 13-year-old girl reported that she had consensual intercourse with appellant, Timothy Eves. Following a preliminary hearing, Eves pled no contest to lewd and lascivious conduct with a child under the age of 14 (Pen. Code, 288, subd. (a)).

On August 7, 2006, Eves filed a combined petition for writ of errorcoram nobis and petition for writ of habeas corpus. On September 14, 2006, the court denied both petitions. On appeal, Eves contends that the court abused its discretion when it denied his petitions. We will affirm.

FACTS

In his moving papers, Eves claimed he did not enter his plea in 1996 knowingly and voluntarily because he was not informed registration was a lifetime requirement. He also complained that his picture and other registration information was now available on the internet and he sought to either withdraw his plea or conform [his] sentence to match the negotiated plea. According to Eves, he was not told when he entered his plea that his sex offender registration information would be publicly disseminated and had he known this, he would not have entered his plea.

In an attached declaration Eves claimed that when he entered his plea, he was not told registration would be a lifetime requirement or that his registration information would become public. He also claimed it was only recently that he learned registration was a lifetime requirement and that his picture and personal information would be listed on the internet.

On September 14, 2006, the court denied Evess petition for a writ of error coram nobis finding, in part, that Eves had not shown due diligence in seeking relief. It denied his petition for writ of habeas corpus because he had not shown that he was in custody.

DISCUSSION

Denial of the Petition for Writ of Error Coram Nobis

Through appellate counsel, Eves contends he was unduly influenced to enter a plea by his trial counsel who told him that his duty to register would terminate.^[1] He further contends that the state has been incrementally violating his plea bargain by requiring him to register for life, setting up terminals allowing public access to sex offender information, and most recently by placing this information on the internet. Thus, according to Eves, the court erred when it denied his petition for a writ of error coram nobis. We will reject this contention.

A writ of error coram nobis is reviewed under the standard of abuse of discretion. [Citation.] [Citation.] A writ of coram nobis permits the court which rendered judgment to reconsider it and give relief from errors of fact. [Citation.] The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.] [Citation.] The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.] [Citation.] [Citation.] (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.)

Further, to show due diligence it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts, or of the legal conclusion of diligence, is insufficient. [Citations.] (People v. Shorts (1948) 32 Cal.2d 502, 513.) We need not determine whether Eves satisfied the first two elements because his supporting declaration merely avers ultimate facts on the issue of due diligence. Accordingly, we reject his contention that the court erred when it denied his petition for a writ of error coram nobis.

Evess Petition for Writ of Habeas Corpus

Besides asserting in his reply brief that the registration requirements amount to constructive custody, Eves has not advanced any argument or cited any authority in support of his contention that the court erred in dismissing his petition for a writ of habeas corpus. Accordingly, we also reject this claim. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [A reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed].) Alternatively, we find that the court correctly denied this petition because Eves was not in custody. (Pen. Code, 1474; People v. Duvall (1995) 9 Cal.4th 464, 474.)

DISPOSITION

The judgment is affirmed.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

^*Before Cornell, Acting P.J., Gomes, J., Kane, J.

^[1] Evess appellate counsel misrepresents the record. As noted in the factual summary, Eves supporting declaration states only that he was not told that registration was a lifetime requirement.