Filed 7/24/17 P. v. Evans CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH EVANS,

Defendant and Appellant.


G053481

(Super. Ct. No. C-90485)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.


This is a Wende appeal from an order denying a petition for a writ of error coram nobis. (See People v. Wende (1979) 25 Cal.3d 436.) Appellant challenges the validity of two prior conviction enhancements he admitted as part of a plea agreement back in 1992. Although appellant did not appeal the judgment encompassing that agreement, he contends he is not the person who suffered the prior convictions that were alleged in that quarter-century-old case. Finding no arguable issues for briefing, we affirm the trial court’s order.
PROCEDURAL BACKGROUND
In 1992, appellant was charged in Orange County Case No. C-90485 with first degree residential burglary. (Pen. Code, §§ 459, 460.1, 461.1.) The complaint also alleged appellant had served a prior prison term for second degree burglary (Pen. Code,
§ 667.5, subd. (b)) and suffered two prior serious felony convictions (Pen. Code, § 667, subd. (a)). The prior convictions were both alleged to be for first degree burglary from Orange County Case No. C-30681, although one of the prior convictions was alleged to have occurred in 1984, and the other was alleged to have occurred in 1988.
Based on these charges, appellant was facing a maximum sentence of 17 years in prison, representing the upper term of 6 years for the underlying burglary,
5 years for each of the prior serious felony convictions, and 1 year for the prison prior. However, as part of a plea bargain, appellant pleaded guilty, admitted the priors and was sentenced to the 13 years in prison, representing the lower term of 2 years on the underlying burglary, plus 11 years for the priors. Appellant offered the following facts as the basis for his plea: “I entered a residence with [the] intent to steal. I have already been convicted of two first degree burglaries and went to prison on another second degree burglary.” On April 10, 1992, the trial court entered judgment reflecting appellant’s plea and sentence.
Appellant did not appeal that judgment. However, over two decades later, in January 2016, he filed a petition for a writ of error coram nobis to withdraw his plea and vacate the judgment on the basis he is not the person who committed the alleged prior convictions in Case No. C-30681. In support of this claim, appellant submitted court records indicating the sole defendant in that case was a person named Scott Arthur Barrera. Appellant alleged that due to a charging mistake, “an accidental mix-up of records,” or “manufactured” error, Barrera’s prior convictions were somehow attributed to and charged against him in his 1992 case, C-90485. Appellant sought relief on the grounds it would violate due process and fundamental fairness to enhance his sentence for prior convictions he did not in fact suffer.
Relying on People v. Kim (2009) 45 Cal.4th 1078 (Kim), the trial court denied the petition on the basis it was untimely and devoid of merit. Appellant appealed, and we appointed counsel to represent him. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against appellant, but advised the court no issues were found to argue on his behalf. (See People v. Wende, supra, 25 Cal.3d 436.) Appellant was given 30 days to file written argument on his own behalf. He has filed two supplemental briefs that include multiple exhibits. We have reviewed all of appellant’s filings in order to determine whether there are any arguable issues in his case.
DISCUSSION
In Kim, the California Supreme Court made clear that a petition for a writ of error coram nobis is a narrow remedy that is available only when new facts come to light that would have prevented rendition of the underlying judgment. (Kim, supra, 45 Cal.4th at pp. 1091-1092.) For example, relief may be granted when the defendant’s guilty plea was obtained by extrinsic fraud or extortion but not when the defendant merely misunderstood the legal consequences of his plea or is challenging the constitutionality of his sentence. (Id. at pp. 1094-1095.) Moreover, to obtain coram nobis relief, the defendant must demonstrate he exercised due diligence in pursuing his claim and that he availed himself of other remedies, such as appeal, when he had the opportunity to do so. (Id. at pp. 1096, 1099.)
In this case, appellant asserts he was having health issues when he entered his guilty plea in 1992 and did not discover the problem with his prior convictions until he started corresponding with an Orange County Public Defender in 2008. Then it took him another eight years to gather the necessary court records and documentation to prove the prior convictions were not his. That might explain his failure to appeal in 1992. But if appellant did not really incur the prior convictions he admitted as part of his plea bargain back then, that seems like something that would have occurred to him fairly soon after he started serving time in prison. After all, the admission added a full 10 years on to his sentence. By waiting over 20 years to file the present petition, appellant has failed to satisfy the due diligence requirement. We are simply not convinced he pursued his claim in a timely manner.
Another roadblock for appellant is that coram nobis relief does not lie to correct factual issues that were decided in the lower court. As the Kim court explained, “‘“issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.” [Citation.] This . . . 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.]’” (Kim, supra, 45 Cal.4th at p. 1093.) Here, the factual issue as to whether appellant was the person who incurred the two prior serious felony convictions alleged in this case was decided against him in the trial court. That is not an issue that can be relitigated now, even if it was decided incorrectly. (Ibid.)
That may sound harsh, but appellant has never questioned the notion that he has actually suffered two prior serious felony convictions for first degree burglary within the meaning of Penal Code section 667, subdivision (a), as alleged in his 1992 case. Indeed, in pleading guilty in this case, he admitted having “already been convicted of two first degree burglaries.” The problem with his case simply seems to be that the prosecution cited the wrong case number in pleading those prior convictions. But that sort of clerical error is not something that would justify granting coram nobis relief at this late date. (Kim, supra, 45 Cal.4th at pp. 1091-1092.)
In his supplemental briefs, appellant also contends his appellate attorney was ineffective for failing to join his crusade against his prior conviction enhancements. However, since there is no legal basis to challenge the enhancements, appellate counsel was not ineffective for not trying to do so. (Strickland v. Washington (1984) 466 U.S. 668 [a defendant alleging ineffective assistance of counsel must prove deficient performance and resulting prejudice].) Having examined the entire record, we are satisfied appellate counsel has fully satisfied his responsibilities under Wende and no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order denying the petition for a writ of error coram nobis is affirmed.



BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.