P. v. Valadez

Filed 8/30/07 P. v. Valadez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

This case consolidates defendant and appellant Cesar Valadezs direct appeal of the trial courts denial of his motion to vacate his conviction in Alameda County Superior Court case number H36847B (H36847B), and his concurrent petition for a writ of mandate challenging the trial courts denial of his request for a certificate of probable cause to file an appeal of its decision to deny the motion to vacate. We dismiss the appeal and deny the petition for writ of mandate. On direct appeal appellant also challenges the trial courts denial of his motion to withdraw his guilty plea in Alameda County Superior Court case number H39895A (H39895A).

Procedural Background

The amended information filed in H36847B on February 16, 2005, charged appellant with receiving stolen property (Penal Code section 496, subd. (a))[1] with a street gang enhancement ( 186.22, subd. (b)(1)), carrying a concealed weapon as an active participant in a criminal street gang ( 12025, subds. (a)(2) and (b)(3)), and carrying a loaded firearm as an active participant in a criminal street gang ( 12031, subds. (a)(1) and (a)(2)(C)). On May 31, 2005, pursuant to a plea agreement, appellant pleaded no contest to all three counts as well as the gang enhancement under section 186.22, subdivision (b)(1)). The trial court found appellant made a knowing and intelligent waiver of constitutional rights and that the plea was free and voluntary. The court found appellant guilty on all three counts and found the gang enhancement allegation true.

During the plea colloquy, the trial court asked appellant if he understood the agreed sentence was two years, and he replied affirmatively. The court also advised appellant as follows: This will become a prior in a couple of different ways. If you go out and commit a petty theft, instead of it being a misdemeanor, it can be charged as a felony petty with a prior which carries a possible 16 months, two years or three years in state prison. [] In addition to that, it will be a prior prison term, so that if you are convicted of another felony and sent to prison and this prior is alleged and proved, it would add a year in prison to any sentence youd receive. And you understand that. Appellant replied, Yes. Appellant confirmed he was entering the plea freely and voluntarily because he believed it was in his own best interests under the circumstances.

On June 28, 2005, the court sentenced appellant to the agreed-upon aggregate term of two years, consisting of the two-year mid-term on the receiving stolen property charge, with sentences on the other counts imposed concurrently and the gang enhancement stayed. Appellant did not file an appeal.

On March 13, 2006, appellant filed a notice of motion and motion to vacate his conviction. In a supporting declaration, appellant stated: When I was being arraigned on those felony violations [in case number H39895A] I was advised that I was charged with a strike, a serious or violent felony, based on my admission of Gang Participation in this case. That was the first time I knew that such a charge was an offense so designated. [] Had I known that the charge I was admitting was a strike, I would not have entered into the disposition. In his supporting brief, appellant argued his plea was not free and voluntary because the trial court failed to admonish him that the conviction would constitute a strike. On March 24, 2006, the trial court denied the motion to vacate.[2] Appellant filed a notice of appeal on May 9, 2006. On May 22, 2006, appellant filed an amended notice of appeal including a request for a certificate of probable cause. On the same day, the trial court denied appellants request for a certificate of probable cause.

Discussion

A. Appealability

The Attorney General (AG) argues that because appellants motion to vacate attacked the validity of his plea, he was required to obtain a certificate of probable cause under section 1237.5. Because the trial court denied appellants request for a certificate of probable cause, the AG asserts we must dismiss the appeal. On the other hand, appellant asserts his motion to vacate is the equivalent of a petition for writ of coram nobis. Appellant avers the denial of a petition for coram nobis is an appealable order under section 1237, subdivision (b), as an order made after judgment, affecting the substantial rights of the party, therefore a certificate of probable cause is not required.

We accept appellants characterization of his motion to vacate as a petition for writ of error coram nobis. A writ of error coram nobis is a type of motion to vacate the judgment, and [f]or better or worse, the terms . . . are often used interchangeably and the two procedures are similar in scope and effect. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) Moreover, the denial of a petition for writ of error coram nobis is appealable as an order made after judgment, affecting the substantial rights of the party ( 1237, subd. (b)) under certain circumstances, such as when the record on appeal would not have shown the error [citations], when the final judgment that is attacked is void [citations] or when clarification of the law is deemed important in the court's discretion [citations]. (People v. Totari (2002) 28 Cal.4th 876, 882; People v. Gallardo, supra, 77 Cal.App.4th at pp. 981-982; People v. Dubon (2001) 90 Cal.App.4th 944, 950.) In an appeal from a trial courts denial of an application for the writ of errorcoram nobis, a reviewing court initially determines whether [petitioner] has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal. (People v. Totari, supra, 28 Cal.4th at p. 885, fn. 4.) In this case, the trial court did not reach the merits of petitioners claim, but, by summarily denying it, decided in essence that petitioner had not made a prima facie showing of merit and thus was not entitled to a hearing. Assuming for now that appellants claims, if valid, come within one or more of the circumstances permitting appeal, he may appeal to obtain review of the correctness of the trial courts order denying the petition without a hearing.

B. Principles of Coram Nobis Relief

A writ of error coram nobis may be granted when three requirements are met: (1) petitioner has shown that some fact existed which, without fault of his own, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of judgment; (2) the petitioner has shown that the newly discovered evidence does not go to the merits of the issues tried; and (3) the petitioner has shown 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. Castaneda (1995) 37 Cal.App.4th 1612, 1618-1619; People v. Gallardo, supra, 77 Cal.App.4th at p. 987.) In view of these strict requirements, it will often be readily apparent from the petition and the courts own records that a petition for coram nobis is without merit and should therefore be summarily denied. When, however, facts have been alleged with sufficient particularity [citation] to show that there are substantial legal or factual issues on which availability of the writ turns, the court must set the matter for hearing. (People v. Shipman (1965) 62 Cal.2d 226, 230.)

However, [a] petition for writ of error coram nobis places the burden of proof to overcome the strong presumption in favor of the validity of the judgment on the petitioner. This burden requires the production of strong and convincing evidence. A mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of the specific facts relied upon and not merely state conclusions as to the nature and effect of such facts. (People v. Stapleton (1956) 139 Cal.App.2d 512, 513-514.) Finally, the scope of our review is limited to the showing made before the trial court (People v. Crouch (1968) 267 Cal.App.2d 64, 67), and we review a trial courts denial of a petition for writ of error coram nobis for abuse of discretion. (People v. Dubon, supra, 90 Cal.App.4th at p. 951.) With these principles in mind we turn to appellants claim.

C. Failure to Advise on the Strike Consequences of the Conviction in H36847B

Appellant asserts he was entitled to coram nobis relief because he demonstrated that he was ignorant of the strike consequences of his plea without fault on his part. We disagree. Appellant cannot meet even the first requirement for coram nobis relief because he fails to show how his professed ignorance of the strike consequences of his plea would have prevented the rendition of judgment. (People v. Castaneda, supra, 37 Cal.App.4th at pp. 1618-1619.) In the first place, a defendants lack of information about the collateral (as opposed to direct) consequences of the plea do not undermine the voluntariness of the plea. (People v. Reed (1998) 62 Cal.App.4th 593, 597.) Moreover, possible future use of a current conviction is not a direct consequence of the conviction. (People v. Bernal (1994) 22 Cal.App.4th 1455, 1457 [italics added]; People v. Gurule (2002) 28 Cal.4th 557, 634, [citing People v. Bernal, supra, with approval].) Accordingly, [a] defendant need not be advised of the possible future use of a conviction in the event the defendant commits a later crime. (People v. Bernal, supra, 22 Cal.App.4th at p. 1457; People v. Sipe (1995) 36 Cal.App.4th 468, 479 [stating future use of a conviction as a strike is not a direct consequence requiring advisement].)

Appellant, however, asserts the trial court actually misadvised him about the future consequences of his plea. According to appellant, he entered his plea due to the [trial] courts inaccurate advice regarding the consequences of the plea. In this regard, appellant points to the trial courts partial admonition, ante, regarding the possible effect of the current conviction on any future sentence appellant might receive. Relying on People v. Goodrum (1991) 228 Cal.App.3d 397 (Goodrum), appellant asserts the trial courts alleged misadvisement entitles him to coram nobis relief.

There, the 70-year-old Goodrum pleaded nolo contendere to a felony charge of driving under the influence in exchange for probation with no jail time beyond the 60 days hed already served. The charge stemmed from a single car accident in which Goodrum was driving and the passenger was killed. (Goodrum, supra, 228 Cal.App.3d at p. 399.) At the time of the plea the defendant was facing a civil wrongful death suit by the passengers heirs. The trial court inquired of Goodrum whether he understood the nature of the nolo contendere plea, and he replied it was the same as a guilty plea except it could not be used against him in a civil suit. (Ibid.) Although the trial court told Goodrum his understanding was correct, the court was wrong, because the statute only prohibits the use of misdemeanor pleas in civil suits. (Id. at p. 400.) Subsequently, Goodrum moved to withdraw his plea but the court, although it conceded Goodrum had been misled, denied the motion. (Ibid.) Goodrum appealed.

The court of appeal stated a trial court may entertain a petition for writ of coram nobis whenever a defendant has been induced to enter the plea by misstatements made by a responsible public official. (Goodrum, supra, 228 Cal.App.3d at p. 400.) The court decided that coram nobis relief is warranted under such circumstances if defendant establishes that a reasonable person in the defendants position, had he been correctly advised by the judge or other responsible public official, would not have entered a guilty plea and forfeited his substantial legal right to a trial. (Id. at p. 401.) In this regard, the court noted that [w]here the erroneous advisement relates to a central element of the plea bargain . . . there will be little question that withdrawal of the plea is appropriate. (Id. at p. 402.) On the other hand, where the misstatement concerns a collateral consequence of the plea, the court must determine whether such a misstatement was significant enough to cause a reasonable person not to enter the plea. (Ibid.) In the end, the court concluded the effect of the trial courts misstatement would not cause a reasonable person to decline the benefits of Goodrums plea bargain because the nolo contendere plea was of limited evidentiary effect in the civil case and did not mean Goodrums civil liability had been conclusively established. (Id. at pp. 402-403.) Thus, the court of appeal concluded the trial court properly denied Goodrums motion to vacate his guilty plea. (Id. at p. 403.)

Appellants reliance on Goodrum is unavailing. For coram nobis relief under Goodrum, a defendant must show that: (1) the trial court induced the defendant into accepting the plea by actively misinforming him about a collateral consequence of the plea; and, (2) the trial courts misinformation was significant enough to cause a reasonable person to reject the plea bargain. (Goodrum, supra, 228 Cal.App.3d at pp. 400-402.). In Goodrum, it was undisputed that the trial court misinformed Goodrum that his nolo contendere plea could not be used against him in the wrongful death suit. It is equally clear this misinformation induced Goodrum into accepting the plea: Goodrum told the court he was pleading nolo contendere rather than guilty because the advantage to me . . . is the fact . . . I wouldnt be facing the possibility of civil suits. (Id. at pp. 399-400, fn.2.) Here, by contrast, the trial court did not misinform appellant on the collateral effect of his plea on any future sentencing. For example, the trial court did not tell appellant his conviction would have no effect at any future sentencing. In fact, the trial court accurately advised appellant that his conviction meant he could face an enhanced sentence in any future proceeding. The trial courts gratuitous advisement to appellant about the possibility of some, but not all, of the collateral consequences that may arise at a future sentencing proceeding does not amount to actively misleading him in the way the trial court misled Goodrum. Nor is there any indication in the record that the courts partial advisement induced appellant into accepting the plea rather than rejecting it.

In sum, we conclude appellant cannot meet the first requirement for coram nobis relief because he has failed to show that some fact existed . . . which if presented [to the trial court] would have prevented the rendition of judgment. (People v. Castaneda, supra, 37 Cal.App.4th at pp. 1618-1619.) Nor is appellant entitled to coram nobis relief on the grounds the trial court induced him into accepting the benefits of plea by misinforming him as to its collateral consequences. (Goodrum, supra, 228 Cal.App.3d at p. 400.) Accordingly, the trial court did not err in summarily denying appellants motion to vacate his conviction (or petition for writ of error coram nobis) in H36847B.

D. Petition for Writ of Mandamus

Petitioner asserts he seeks mandamus in Case No. H36847B to ensure that the denial of the certificate of probable cause does not bar his appeal in that case, should this court conclude that a certificate of probable cause is required to challenge the denial of the motion to vacate. However, we concluded above that petitioner was not required to obtain a certificate of probable cause in order to challenge the denial of the motion to vacate. We also concluded the trial court did not err in denying the motion to vacate. Accordingly, the petition is denied as moot.

DISPOSITION

The judgments in H36847B and H39895A are affirmed. The petition for writ of mandamus is denied.

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Horner, J.*

We concur:

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McGuiness, P. J.

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Pollak, J.

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* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Further statutory references are to the Penal Code unless otherwise noted.

[2] On direct appeal appellant also challenges the trial courts denial of his motion to withdraw his guilty plea in Alameda County Superior Court case number H39895A. In that case, on March 24, 2006, the trial court denied appellants motion to withdraw his plea [filed on the grounds he was unaware his prior conviction in H36847B was considered a strike] and sentenced him pursuant to the negotiated plea agreement to four years in prison [three years for grand theft from a person, in violation of  487, plus one year on the prison prior enhancement under  667.5, subd. (b)]. On May 22, 2006, appellant filed an amended notice of appeal and request for certificate of probable cause, which the trial court denied the same day. In his writ petition, appellant states he has abandoned his challenge to the denial of the plea withdrawal motion in case number H39895A, and acknowledges this in his reply brief on direct appeal. Accordingly, we affirm the judgment in H39895A.