P.v . Emrick
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION
THE PEOPLE, Plaintiff and Respondent, v. DONALD EMRICK, Defendant and Appellant. | B192760 ( Super. |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Lisa Chung, Judge. Dismissed.
George A. Boyle for Defendant and Appellant.
Bill Lockyer, Attorney General of the State of
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Appellant Donald Emrick pled no contest to one count of oral copulation of a person under 14 in violation of Penal Code section [1]288a and one count of a lewd act on a child in violation of section 288, subdivision (a). Sixteen years later he filed a Petition for Writ of Error Coram Nobis seeking to withdraw that plea on the ground that he was not advised of all the consequences of his plea and that the trial court did not establish a factual basis for the plea. The trial court summarily denied the petition.
Appellant appeals from the denial of the Petition, contending that the trial court erred. We dismiss the appeal.
Factual and Procedural Background
In 1990, appellant was charged with two counts of violating section 288a and two counts of violating section 288, subdivision (a). For all four counts, the information contained a notice that conviction of the offense would require appellant to register as a sex offender pursuant to section 290. For the count 2 and 4 section 288 offenses, the information alleged that the offense was a serious one within the meaning of section 1192.7, subdivision (c)(6), and alleged various facts existed within the meaning of section 1203.066. The maximum term of imprisonment if appellant were convicted of these four counts was 32 years. In April, 1990, appellant pled no contest to two of the four counts in exchange for a sentence of five years on probation, the first 180 days of which were to be served in county jail.
Before appellant entered his no contest plea, the prosecutor advised appellant in pertinent part: " You must register as a sex offender pursuant to section 290 of the Penal Code. So when you get out of county jail, if you go to county jail or if you are placed on straight probation for the next five years, you're going to have to register with the county sheriff or the chief of police as a sex offender. [¶] Do you understand this?" Appellant replied: " Yes, sir."
Before accepting appellant's plea, the court asked the prosecutor: " Mr. Smalstig, as far as the special allegations is it no inquiry as to the allegations in counts 2 and 4?" The prosecutor replied: " No, Your Honor. Special allegations are alleged to add more time and to deny probation. Since this is agreed as a probationary sentence at this time, he should not admit those."
The court also inquired: " [Does] counsel join in the plea, concur in the plea, stipulate to a factual [basis], join in all waivers?" Appellant's counsel replied: " Yes, I do."
Appellant filed his Petition in March 2006, some 16 years after he entered his plea, and 11 years after he completed probation.
In his Petition, appellant contended that the above statements by the trial court and the prosecutor led him to believe that he was not pleading to a serious felony and that the lifetime registration requirements of section 290 did not apply in his case, and that the penalties resulting from his plea would expire at the end of his probationary term. He contended that he did not learn otherwise until he was arrested for failing to failing to register as a sex offender. He also contended that the trial court did not establish a factual basis for the plea.
The trial court found that appellant had " failed to make a sufficient prima facie statement of facts, which if established, would entitle him to relief." Accordingly, the court summarily denied the petition without the issuance of an order to show cause or an evidentiary hearing. The court found that appellant failed to show due diligence and that the petition was not the appropriate way to raise a claim that a trial court had failed to establish a factual basis for the plea as required by section 1192.5.
Discussion
Appellant contends that the trial court erred in denying his petition. We see no error.
" 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. [Citation.]" (People v. Stapleton (1956) 139 Cal.App.2d 512, 513-514.)
" In an appeal from a trial court's denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal. [Citations.]" (People v. Totari (2002) 28 Cal.4th 876, 885.)
Here, the trial court found that appellant had failed to make a prima facie showing of merit concerning due diligence. We agree.
" The writ of coram nobis requires that the petitioner show 'due diligence' that is, the petitioner '. . . " 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 . . . ." [Citations.]' [Citations.] Thus, '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[.]' [Citation.]" (People v. Carty (2003) 110 Cal.App.4th 1518, 1528.) The absence of evidence on these issues defeats the petition. (Id. at p. 1529.)
Here, appellant did not file his petition until 16 years after the entry of his plea. In that petition, he contended generally that he first learned of the " defects" in his plea when he was arrested for allegedly failing to comply with the terms of his plea bargain. In his supporting declaration, appellant stated only that he first learned he had a lifetime registration requirement when he was arrested for failing to register as a sex offender. He did not provide a date or any information about this arrest in his petition or declaration. During argument on the petition, the trial court specifically noted that appellant did not provide any supporting documentation providing the details of the arrest. These failures alone are sufficient to justify the court's summary denial of the petition.
In addition to failing to provide the dates and circumstances of his arrest, appellant failed to provide any information about his registration, if any, during the five years that he acknowledged that he had a duty to register. Failing to register during the probationary period would show a lack of due diligence. If appellant did register, he should, at a minimum, have declared that nothing in his registration activities alerted him to the fact that he had a lifetime registration requirement.
Further, an evaluation of appellant's due diligence must be considered in light of all the contentions in his petition and statements in his declaration. Appellant contends in his petition that he believed that all the penalties resulting from his plea would expire at the conclusion of his probation. In his declaration, appellant states that his attorney told him that if he accepted the plea and completed probation, he would be entitled to have a plea of not guilty entered on his behalf and the case against him would be dismissed. He states that he believed that " all consequences of the plea [would be] terminated at the end of probation." Appellant did complete probation 11 years ago. Clearly, he did not then enter a plea of not guilty and the case against him was not dismissed. Appellant offers no explanation for his failure to investigate the lack of dismissal of the case against him, an investigation which would surely have shown that the consequences of his plea did not end with probation and that his felony was considered a serious one by operation of law.
We also agree with the trial court that the petition was not the appropriate method of raising the trial court's failure to establish a factual basis for the plea as required by section 1192.5.[2]
The limited purpose " of the writ of error coram nobis, is 'to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court.' [Citation.] The remedy does not lie to enable the court to correct errors of law. [Citation.]" (People v. Banks (1959) 53 Cal.2d 370, 378.)
Here, the court's belief that a generalized, unsupported stipulation was a sufficient factual inquiry was an error of law. (See People v. Holmes (2004) 32 Cal.4th 432, 440 [general statement by counsel that a factual basis for the plea exists does not meet the requirements of section 1192.5].) Thus, a writ of error coram nobis will not lie to correct this error.
Assuming for the sake of argument that coram nobis were an appropriate remedy for a violation of section 1192.5, appellant would have failed to show due diligence on this claim as well. In addition, appellant failed to make a prima facie showing of entitlement to relief on such a claim. Appellant does not claim that he was innocent of the charges, or that his acts do not amount to a crime. Further, a trial court's failure to adequately inquire as to a factual basis for a plea is harmless " where the contents of the record support a finding of a factual basis for the conditional plea." (People v. Holmes, supra, 32 Cal.4th at p. 443.) We agree with respondent that the probation officer's report in this case provides a factual basis that appellant committed the acts to which he pled no contest.
Disposition
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J.
We concur:
TURNER, P. J. KRIEGLER, J.
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[1] All further statutory references are to that code unless otherwise indicated.
[2] Section 1192.5 provides in pertinent part: " The court shall . . . cause an inquiry to be made of the defendant to satisfy itself that . . . there is a factual basis for the plea."
