P. v. Gates

Filed 4/17/09 P. v. Gates 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This is an appeal from the denial of a petition for writ of error coram nobis. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days and he submitted a letter to this court dated January 14, 2009, which we received January 20, 2009.

In his letter, defendant requested an extension of time, which we granted. On April 6, 2007, we received defendants letter brief. In it, defendant states that he received misrepresentation on this case. He states that he had no idea he pleaded guilty to a violation of Penal Code section 212, subdivision (3). He was initially arrested for a stolen vehicle, but the case was dropped after 60 days. When he was rearrested, he thought the charge was the same one as before. He would never have pleaded guilty to a violation of section 212, subdivision (3) because I didnt rob my friend Basically a misunderstanding. He asks this court to remand me back to court so that I can get the relief I deserve[]Otherwise, I may spend the remainder of my life in prison over this case #160469 [and] thats clearly [an] [i]njustice[.]

Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, we will affirm.

PROCEDURAL AND FACTUAL BACKGROUND

In his petition for writ of error coram nobis, defendant asked the superior court to vacate the judgment of conviction in Santa Clara Superior Court case no. 160469 on the grounds that his plea of guilty was entered under circumstances that overreached [his] free will and judgment. The relevant supporting facts, as related in defendants petition, are as follows.

On October 23, 1992, a felony complaint was filed charging defendant in three counts with grand theft of a vehicle from the person of George James Purdom (Pen. Code, 484/487.2); driving or taking a vehicle belonging to Purdom (Veh. Code  10851, subd. (a)); and robbing Purdom of the vehicle by means of force or fear (Pen. Code 211/212.5, subd. (b).)

A preliminary hearing was held. George Purdom testified that after an evening of smoking crack with defendant, he was tired and went to sleep. At 3:00 a.m. he was awakened by defendant, who was knocking on his door. Defendant wanted a jump for his car. Purdom put on his pants and went shoeless to his own car, where he discovered that everything inside it was strewn around. Purdom got into his car to start it with the idea of driving to the location of defendants car, which defendant said was around the corner. However, defendant stayed right by the drivers door. Purdom sensed that someone else was around and he quickly started the car and pulled it out of the carport. Defendant moved to the passenger door. Purdom was scared. Purdom unlocked the door and defendant jumped in the car on the passenger side, reached for Purdoms neck with his left hand and grabbed the keys with his right hand. At this point, he was scared and bailed out of the car. He ran to a neighbors house and told the neighbor to get his gun. He saw defendant drive off.

Defendant was held to answer on all three charges. Subsequently, an information was filed charging him, in count 1, with vehicle-taking and, in count 2, with robbery. (Veh. Code 10851, subd. (a); Pen. Code 211/212.5, subd. (b).) He was not charged with grand theft person.

On January 21, 1993, defendant pleaded guilty to the robbery count.[1] Pursuant to a negotiated disposition, the vehicle-taking count and several prior convictions were to be dismissed at sentencing, and defendant was to be sentenced to two years in state prison. On February 9, 1993, defendant was sentenced in accordance with the plea bargain.

The record on appeal also includes two evaluations of defendants competency to stand trial for possession of rock cocaine in 1999. One evaluation found that defendant was not competent. The second evaluation stated no conclusion, but the test results support a finding of competency.

On August 20, 2008, the trial court filed a three-page written order denying defendants Coram Nobis petition in which he asserts his plea in case #160469 is invalid because he did not have the mental capacity, or intellectual functioning to enter it and because [his] attorney failed to fully explain the different elements of the charges. The court concluded that defendant had failed to satisfy the elements of a writ of error coram nobis in that he had failed to show due diligence in bringing the writ and the writ could not be used to review claims of ineffective assistance of counsel. Furthermore, the court concluded that it could not entertain defendants writ as a petition for writ of habeas corpus because defendant was no longer in custody on the underlying robbery case.

DISCUSSION

On December 16, 2008, appointed counsel filed a Wende brief in this court. This court sent a letter notifying defendant of his right to submit a written argument in his own behalf within 30 days. As noted earlier, the court granted defendants request for more time within which to file his letter brief. The court subsequently received a letter from defendant, the contents of which we summarized at the outset of this opinion. As defendants appeal is from the denial of his petition for writ of error coram nobis, we have summarized its contents above.

The writ of [error] coram nobis is granted only when three requirements are met. (1) Petitioner must show that some fact existed which, without 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 judgment. [Citations] (2) Petitioner 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. [Citations.] 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. [Citations.] (3) Petitioner must show that the facts upon which he relies were not know 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. . . . (People v. Kim (2009) 45 Cal.4th 1078, 1093 (Kim), quoting from People v. Shipman (1965) 62 Cal.2d 226, 230.) Ineffective assistance of counsel is a constitutional claim that cannot be vindicated on coram nobis. (Kim, at p. 1095.) A person who is not in custody as a result of a conviction is ineligible for relief from that conviction by way of writ of habeas corpus. (People v. Villa (2009) 45 Cal.4th 1063.)

On the merits, we review a trial courts denial of a petition for writ of error coram nobis for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record on appeal. In our view, the court did not err in denying the petition for writ of error coram nobis. We conclude that there is no arguable issue on appeal. (People v. Kelly, supra, 40 Cal.4th at p. 124.)

DISPOSITION

The judgment is affirmed.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] According to the change of plea transcript, the trial court told defendant: Mr. Gates, I have been informed by your attorney that you are agreeable to changing your plea to Count 2 in this matter from not guilty to guilty, and that if you do that, the following disposition will take place in your case. [] First, its my understanding Count 1 would be dismissed. [] . . . [] Second, you would be committed to . . . state prison for a period of two years top and bottom. No more, no less. Less any credits youre entitled to. After explaining the consequences of the plea, the court asked: Do you understand what I have told you so far? Defendant responded: Yes, I do.

Later, the court asked: Have you had a chance, Counsel, to explain to Mr. Gates all the facts and circumstances surrounding these charges, the defenses that might be available to him, the elements of the charges that would have to be proven by the People, as well as the consequences of any either jury verdict or plea that he is about to enter? Defense counsel responded: Yes, we have had extensive discussions on all these subjects. THE COURT: Are you satisfied he understood what you told him? THE DEFENSE: Yes.

Next the court asked defendant: Mr. Gates, are you satisfied that you have had sufficient opportunity to discuss with Mr. Press all the facts and circumstances surrounding this case, the defenses available to you, the elements of the charges that would have to be proven by the People, as well as the consequences of any verdict or any plea or admissions that you might make? Defendant answered: Yes.

Finally the court advised defendant: Mr. Gates, Count 2 of the Information charges as follows. On or about July 14, 1992 in the County of Santa Clara, State of California, the crime of robbery, violation of Penal code section 211/212.5(b), a felony, was committed by Maurice Gates, who did take personal property, to wit: an automobile, in the possession of George James Purdom from his person and immediate presence and against his will by means of force and fear. How do you plead to that charge? Defendant pleaded guilty and defense counsel concurred in the plea.