Filed 5/2/07 P. v. Smith CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. William R. Hollingsworth, Judge. Affirmed.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, Deputy Attorney General, for Plaintiff and Respondent.

______________

In 2001, Raymond Damon Smith (defendant) pled no contest to possessing a controlled substance, cocaine. (Health & Saf. Code, 11350, subd. (a).) Imposition of sentence was suspended, and he was placed on probation for three years. On May 10, 2006, Smith personally filed a document entitled Motion for Writ of Error Coram Nobis or other Extraordinary Remedy, which requested the trial court to vacate the judgment on the grounds of ineffective trial counsel. The trial court denied the motion.

He appeals from the order denying the Motion for Writ of Error Coram Nobis or other Extraordinary Remedy and contends that the trial court erred by failing to consider the merits of the motion and by failing to hold an evidentiary hearing. We disagree and affirm the trial courts order.

THE FACTS

In the instant case, on May 18, 2001, defendant pled no contest to possessing cocaine. During the plea, defendant acknowledged that he would be required to register as a narcotics offender. After he was placed on probation, the trial court asked his trial counsel, whether, Inasmuch as there was a hearing pursuant to section 1538.5 of the Penal Code . . . , do you waive advisement of appeal rights? Trial counsel replied, Yes.

On May 10, 2006, defendant filed his motion for a writ of error coram nobis. In the motion, defendant explained that subsequent to being placed on probation, in Minnesota, on September 11, 2001, he was charged with 1997 and 1998 federal drug offenses. In the federal case, a jury found him guilty of conspiring to distribute cocaine and to possess cocaine with intent to distribute in excess of 50 grams of cocaine base and to distribute in excess of five kilograms of cocaine (21 U.S.C. 841, subds. (a)(1) & (b)(1)(A)), and of attempting to possess cocaine base with the intent to distribute 1,912 grams of that substance (21 U.S.C. 841, subd. (a)(1) & (b)(1)(A)). The federal court sentenced him to a 400-month prison term (33 years 4 months).

In the motion, defendant asked the instant trial court to vacate the 2001 California judgment on the grounds trial counsel was constitutionally ineffective. Defendant made the following claims: (1) before his guilty plea, trial counsel advised him that his 2001 California conviction could not be used against him in any subsequent proceedings, and defendant would not have pled guilty had he known that his California conviction had future consequences; (2) as defendant would have prevailed had the appropriate search and seizure motion been made, trial counsel was constitutionally ineffective as he had failed to raise the circumstances of defendants traffic stop during such a motion; and (3) trial counsel failed to file a notice of appeal from the judgment, as defendant had requested. Defendant urged that by reason of trial counsels ineffectiveness, defendants plea was involuntary and was not intelligently entered and that defendant was entitled to an order vacating the judgment.

Defendant attached to the motion the presentence investigation report prepared for the district court for use during the federal sentencing proceedings. The report demonstrates that defendants California conviction resulted in one point being added to the calculation of the sum of his criminal history, which in total was eight points. The report said that a defendant with a criminal history amounting to seven to nine points, is classified as a category IV defendant. This rating apparently is used as a guideline for evaluating aggravation as a basis for federal sentencing.

After considering defendants motion, the trial court ruled that it found no facts set forth to warrant the granting of the request for writ. The trial courts order also indicated that the trial court had previously issued a bench warrant for defendants arrest in the instant case on January 24, 2003, and that bench warrant remained outstanding.

DISCUSSION

Defendant asserts that the trial court erred in finding that he had failed to state sufficient facts demonstrating a prima facie case for relief and that he was entitled to an evidentiary hearing. We disagree.

At the threshold, defendant has failed to adequately explain his delay in seeking to vacate the 2001 California judgment. When a person makes a motion to vacate a judgment, which is in the nature of a petition for a writ of error coram nobis, he must show that the facts upon which he relies were not known 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. Shipman (1965) 62 Cal.2d 226, 230.) In his motion, defendant sets out no facts explaining his delay in asking to set aside the California judgment. Consequently, for procedural reasons, he is not entitled to coram nobis relief. (See, e.g., People v. Vernon (1935) 9 Cal.App.2d 138, 142143 [four-year delay in moving to set aside guilty plea].)

Furthermore, a claim that the defendant was deprived of effective representation of counsel is not an appropriate basis for relief by writ of coram nobis, and instead, such issues must be raised by a petition for a writ of habeas corpus. (In re Resendiz (2001) 25 Cal.4th 230, 237 & fn. 2; People v. Gallardo (2000) 77 Cal.App.4th 971, 987; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) As presumably the outstanding bench warrant was issued upon the preliminary revocation of probation, it appears that defendant is in custody in the instant California case. (Estelle v. Dorrough (1975) 420 U.S. 534, 536, fn. 2.) Consequently, there is no question that defendant chose the wrong procedural vehicle to raise his claims of ineffective trial counsel.

DISPOSITION

The order under review is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

ASHMANN-GERST

We concur:

_________________, P. J.

BOREN

_________________, J.

DOI TODD

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