P. v. Eldridge
Filed 4/15/11 P. v. Eldridge CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. KIM DURELLE ELDRIDGE, Defendant and Appellant. | E050499 (Super.Ct.No. FVI902457) OPINION |
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kim Durelle Eldridge was charged by information with three counts of petty theft with a prior conviction (Pen. Code, §§ 666, 484, subd. (a), counts 1-3)[1] and three counts of second degree commercial burglary (§ 459, counts 4-6). It was further alleged that defendant had one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and that he had suffered six prior prison convictions (§ 667.5, subd. (b)). Pursuant to a plea agreement, defendant pled guilty to count 1 and admitted the prior strike conviction. The trial court sentenced him to 32 months in state prison, as agreed upon. After being sentenced, defendant wrote a letter to the trial court seeking to withdraw his plea. The trial court declined to appoint counsel to represent defendant and stated that the matter should be referred to his appellate counsel.
On appeal, defendant contends he was deprived of his right to assistance of counsel when the trial court failed to appoint counsel to represent him in a motion to withdraw his plea after judgment, by way of a writ of error coram nobis. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND[2]
On the morning of October 29, 2009, a cashier was working at a gas station convenience store, when he observed defendant come inside the store three separate times, take items off the shelf, and leave without paying for them.
Defendant entered into a plea agreement on January 22, 2010. At the hearing on the plea, the trial court reviewed the plea form with him to confirm that he intended to plead guilty to one count of petty theft with a prior theft conviction and admit the prior strike conviction. The trial court also reviewed the agreed-upon sentence. When the trial court asked if he understood everything that was printed and handwritten on the plea form, defendant said he was “[v]ery familiar with it.” The trial court then asked defendant if his counsel had answered all of his questions. At first, defendant responded, “No, not all of them, but, yes.” The trial court said it was confused and repeated the question. Defendant responded, “Yes.” The trial court received defendant’s assurance that he had initialed the boxes on the form and understood his rights. Defense counsel said he witnessed defendant initial and sign the form, and he was satisfied that defendant understood his rights and the consequences of his plea. The trial court reviewed the waiver of rights with defendant, who indicated that he understood he would be waiving his rights.
The trial court asked defendant if he had any questions before taking the plea. Defendant said, “Hopefully you’ll never see me in this courtroom again. If you do so happen, please don’t assign this attorney to me.” The following discussion ensued:
“[The Court:] Just so I’ll—[defendant], now that you’ve brought that up, you know, if you would have wanted to have me take [defense counsel] off this case, I could have done—I could have listened to why.
“[Defendant:] I want him to take himself off the case . . . I want to continue with this and go on about my way.
“[The Court:] You understand that we could have had what’s called a Marsden[[3]] hearing
“[Defendant:] I don’t have—
“[The Court:] You’re familiar with a Marsden hearing; right
“[Defendant:] I am now though.
“[The Court:] So—but you don’t want to do that You want to proceed with this plea because you think it’s in your best interest
“[Defendant:] Yeah, go on my merry way.”
Defendant then pled guilty to count 1 and admitted the prior strike conviction. The trial court found that the plea was free and voluntary, and it sentenced defendant to 32 months in state prison pursuant to the plea agreement.
On March 16, 2010, Earl Shinder from the public defender’s office appeared for defendant and informed the trial court that defendant wished to withdraw his plea. Defendant was not present. The trial court indicated it had received a letter from defendant dated February 2, 2010. Upon receipt of the letter, the matter was on calendar and the trial court notified the attorneys. The trial court inquired as to whether defendant had a right to be brought back from prison for consideration of a withdrawal of his plea. Mr. Shinder stated that a conflict panel attorney would need to be appointed to talk to defendant, and that he was unsure if defendant had a right to be brought back. The bailiff called the conflict panel office, and the trial court recessed until after lunch.
When the case was called again, defendant’s prior trial counsel was present, along with an attorney from the conflict panel. The trial court explained again that it had received a letter from defendant indicating he wished to withdraw his plea, even though he had already been sentenced to prison. The trial court remarked that this issue was usually handled on appeal, and stated that if it were to allow defendant to have counsel for the purpose of withdrawing the plea, it would appoint a conflict panel attorney. The trial court said it did not want to bring defendant back until it had an answer as to whether he had a right to be brought back to court.
The prosecutor stated that the only statute he could find that was potentially applicable was section 1018, under which a trial court may allow a defendant who is granted probation to seek withdrawal of his plea for good cause shown. The conflict panel attorney informed the trial court that the relief defendant was requesting was a writ of error coram nobis. He explained that since it was a postjudgment request, it was “not covered under the provisions of the contract with the conflict panel,” so the trial court would need to appoint different counsel. Defendant’s prior counsel offered a third theory, that, under section 1170, subdivision (d), the trial court could recall the sentence within 120 days, and defendant could move to withdraw his plea. The prosecutor disagreed, stating that there had to be a basis for recalling the sentence, such as a legal defect. The trial court stated that defendant alleged in his letter that his prior counsel did not inform him of “some new law that state[d] he was eligible to accept county time or completely win his case.” The trial court said it did not understand what that meant, and stated that it did not see an error and it was not inclined to bring defendant back to court. The trial court also indicated that defendant was still within his period of appellate rights.
The conflict panel attorney then stated that he was not making an appearance for the conflict panel. The trial court clarified this point by saying that the conflict panel attorney was making an appearance for the conflict panel to indicate that this was not a motion to withdraw a plea, and to explain that the nature of the proceeding was “outside of [his] contractual relationship with the court.” The conflict panel attorney confirmed what the trial court said. The trial court then declined to appoint anyone and stated that the matter should be referred to defendant’s appellate counsel.
ANALYSIS
Defendant Was Not Entitled to the Appointment of Counsel
Defendant claims that his right to the effective assistance of counsel was violated when none of the attorneys at the March 16, 2010 hearing protected his “right” to have his writ of error coram nobis heard, and when the trial court failed to appoint counsel to act on his behalf. He contends the judgment should be set aside for the limited purpose of appointing counsel to give him the opportunity to litigate a motion to vacate the judgment and withdraw his plea. We conclude that defendant was not entitled to the appointment of counsel.
Defendant Failed to State a Prima Facie Case for Coram Nobis Relief
In support of his claim, defendant asserts that the right to assistance of counsel extends to coram nobis proceedings, citing Ligda v. Superior Court (1970) 5 Cal.App.3d 811, 824 and People v. Shipman (1965) 62 Cal.2d 226, 230 (Shipman). While there is a right to counsel in coram nobis proceedings, defendant failed to state facts sufficient to show that a coram nobis hearing was required. (See Shipman, at p. 232.) “A coram nobis motion is to bring to the attention of the trial court errors of fact which, without negligence on the part of the defendant, were not presented to the court at the trial.” (People v. Tucker (1957) 154 Cal.App.2d 359, 361.) “The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]” (People v. Sharp (1958) 157 Cal.App.2d 205, 207 (Sharp).) To be granted relief by way of coram nobis, the defendant must meet three requirements: (1) he “must ‘show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and . . . [that] would have prevented the rendition of the judgment’”; (2) “that the ‘newly discovered evidence . . . [does not go] to the merits of issues tried . . .’”; and (3) “‘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. . . .’” (Shipman, at p. 230.) “[I]n the absence of adequate factual allegations stating a prima facie case, counsel need not be appointed . . . in the trial court . . . .” (Id. at p. 232.) In other words, a defendant is entitled to have counsel appointed to represent him only if he has stated facts sufficient to satisfy the trial court that a hearing is required. (Ibid.)
Here, none of defendant’s claims came within the scope of a writ of error coram nobis. In his letter to the trial court, defendant complained that his trial counsel did not do what defendant and his family asked of him, and that, somehow, defendant felt pressured into accepting the plea. Defendant also claimed that his trial counsel did not inform him of a “new law, which states [he was eligible] to accept county time or completely win [his] case.” His letter further noted: “[His trial counsel] stated . . . that I would lose in trial if we were sent to Morongo, which I felt he was not going to represent me to his best ability.” The alleged errors in this case did not involve facts or evidence. Rather, defendant’s complaints were based on his former counsel’s inadequate assistance or failure to inform him of a “new law.” “[T]he lack of counsel or effective aid of counsel are not properly raised by a petition for a writ of error coram nobis.” (Sharp, supra, 157 Cal.App.2d at p. 208; see also People v. Ibanez (1999) 76 Cal.App.4th 537, 546, fn. 13 [Fourth Dist., Div. Two].) Since defendant’s letter did not state a prima facie case for coram nobis relief, he was not entitled to have counsel appointed. (Shipman, supra, 62 Cal.2d at p. 232.) Thus, the trial court properly declined to appoint counsel to represent defendant.
Defendant further relies upon People v. Brown (1986) 179 Cal.App.3d 207 (Brown), in support of his claim that he was denied his right to assistance of counsel. However, Brown is distinguishable. In that case, the defendant was attempting to withdraw his pleas of nolo contendere before judgment. (Id. at p. 211.) Thus, he was able to proceed under section 1018, which provides that a court may, for good cause shown, allow a defendant to withdraw his plea “at any time before judgment.” (Brown, at p. 213; see also § 1018.) The court in Brown concluded that the defendant’s motion was not frivolous, and that he was entitled to have his motion to withdraw presented to the trial court by an attorney. (Brown, at pp. 215-216.)
In contrast, defendant here attempted to withdraw his plea after he had been sentenced and was already in prison. Therefore, he could not withdraw his plea pursuant to section 1018. Defendant acknowledges that the instant case is distinguishable from Brown, since his request was made after judgment. Consequently, he claims that his request was one for a writ of error coram nobis. However, as discussed above, defendant failed to state a prima facie case for coram nobis relief and was therefore not entitled to have counsel appointed. (Shipman, supra, 62 Cal.2d at p. 232.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P.J.
We concur:
McKINSTER
J.
KING
J.
