Filed 3/29/22 P. v. Bowden CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

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Defendant Ladon Bowden appeals from the trial court’s order denying his motion for relief under Penal Code section 1473.6.[1] Defendant contends the trial court erred in summarily denying his motion after determining that he failed to establish a prima facie case for relief under the statute. The People note that the trial court construed defendant’s motion as a petition for writ of habeas corpus, which is unappealable, and invite us to do the same and deny it. For reasons we explain below, we will decline this invitation and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

A. Defendant’s case

In April 1994, defendant pleaded no contest in Yolo County Superior Court case No. 61812 to second degree robbery. (§ 211.) The remaining charge and a firearm enhancement were dismissed.

In September 1994, the trial court sentenced defendant to three years in state prison. On appeal, we affirmed the judgment. (People v. Bowden (Nov. 9, 1995, C019566) [nonpub. opn.].)

B. Defendant’s motion

On December 28, 2020, defendant moved under section 1473.6 to invalidate his 1994 plea. Defendant argued the “Court failed to prove and the court records insufficiently give support to an intelligent[ ], knowing[ ] and voluntar[y] waiver to” his rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] and In re Tahl (1969) 1 Cal.3d 122. Defendant noted there was no transcript available from the plea hearing because the records had been destroyed pursuant to Government Code section 69955. Citing People v. Sumstine (1984) 36 Cal.3d 909, defendant argued it was necessary for the transcript to affirmatively show the trial court complied with its notice obligations, and he could not be penalized for the lack of a transcript. Defendant argued the remaining record had only a generic description of the sentencing hearing and failed to affirmatively establish that the trial court gave the proper advisements regarding his constitutional rights or the direct consequences of his plea.

Defendant also stated that in September 1994 he moved to withdraw his plea. Although he did not explain the basis for his motion, he argued the trial court erred in denying it. In addition, citing People v. Sumstine, supra, 36 Cal.3d 909, defendant also argued he was entitled to attack the validity of the prior conviction because it was used as a strike for purposes of enhancing any later term.

Defendant included as exhibits a copy of his declaration and his attorney’s declaration made in April 1994 regarding the plea deal. Defendant’s declaration stated that he understood he had the right to (1) not plead guilty; (2) a preliminary examination; (3) present evidence; (4) remain silent; (5) hear and question all witnesses against him; (6) a trial; and (7) have the judge “order into court all the evidence and witnesses in [his] favor.” He also declared that he understood the maximum potential punishment was five years, with a maximum fine of $27,500 and a maximum restitution fine of $10,000. Defendant’s attorney declared that he explained to defendant the maximum potential punishment, the nature of the complaint and each crime charged, and defendant’s constitutional rights. To the best of the attorney’s knowledge, defendant understood the matters set forth in his declaration.

Also attached to the motion was a copy of the trial court’s order from April 1994 stating that the court found (1) there was a factual basis to support the charge; and (2) defendant understood his constitutional rights and the nature of the crime charged, understandingly and voluntarily pleaded no contest to the charge, and waived such rights. The court accepted defendant’s plea.

The trial court deemed the motion a petition for writ of habeas corpus and summarily denied it in April 2021. The court found defendant had failed to set forth facts sufficient to establish a prima facie case for relief, reasoning that a section 1473.6 motion must be based on evidence that could not have been discovered with reasonable diligence prior to judgment and must be filed within one year after such evidence is discovered.

DISCUSSION

Although ordinarily a trial court’s denial of a motion brought under section 1473.6 is appealable (People v. Germany (2005) 133 Cal.App.4th 784, 787, fn. 2), here, the trial court construed defendant’s motion as a petition for writ of habeas corpus, most likely because defendant is still incarcerated and thus ineligible for relief under the statute. In a noncapital case, no appeal lies from the denial of a petition for writ of habeas corpus, and a prisoner must file a new petition in the appellate court. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720.) In the interest of judicial economy (see People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4), the People ask us to construe defendant’s appeal as an original habeas petition, or as a petition for writ of error coram nobis. Given that, for the reasons explained below, we would summarily deny such a petition under either theory based on the record before us, we decline to do so.

Section 1473.6 allows a person no longer imprisoned or restrained (and thus without standing to petition for a writ of habeas corpus) to file a motion to vacate a judgment based on (1) “[n]ewly discovered evidence of fraud by a government official that completely undermines the prosecution’s case, is conclusive, and points unerringly to his or her innocence,” (2) “[n]ewly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment,” or (3) “[n]ewly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment.” (§ 1473.6, subd. (a)(1)-(3).)

Section 1473.6 was enacted in response to the so-called Rampart scandal, in which police officers were found to have committed misconduct by, among other things, planting evidence and committing perjury. (People v. Germany, supra, 133 Cal.App.4th at p. 791.) The law sought to enable those “ ‘no longer in the system to challenge their judgment when they learn that their conviction was obtained in part because of fraud or false evidence by a government official.’ ” (Ibid.)

Section 1473.6 defines “ ‘newly discovered evidence’ [as] evidence that could not have been discovered with reasonable diligence prior to judgment” (§ 1473.6, subd. (b)), and mandates that a motion to vacate the judgment “be filed within one year” from “[t]he date the moving party discovered, or could have discovered with the exercise of due diligence, additional evidence of the misconduct or fraud by a government official beyond the moving party’s personal knowledge,” or the effective date of the statute, whichever is later (§ 1473.6, subd. (d)).

The procedure for raising and adjudicating a section 1473.6 motion, “including the burden of producing evidence and the burden of proof, shall be the same as for prosecuting a writ of habeas corpus.” (§ 1473.6, subd. (c).) As such, the judge must issue an order to show cause if the moving party makes a prima facie case for relief. (Cal. Rules of Court, rule 4.551(c)(1).) In determining whether a prima facie case has been made, the judge must take the moving party’s factual allegations as true and make a preliminary assessment whether the moving party would be entitled to relief if his or her factual allegations were proven. (Ibid.) Although the trial court may consider the entire record of conviction in determining whether defendant has made a prima facie case (People v. Lewis (2021) 11 Cal.5th 952, 971), it “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) A trial court may deny relief at the prima facie stage if the defendant’s allegations are clearly refuted in the record. (Id. at p. 971.)

On appeal, defendant contends that because the record does not affirmatively reflect that he was advised of the nature of the charges, the consequences of his plea, or his constitutional rights, the record does not disprove his claims that he was improperly advised. Defendant further argues that the records fail to disclose that the trial court found a factual basis for the plea. According to defendant, he established a prima facie case for his motion, and the trial court should have appointed counsel and held a hearing.

Defendant additionally argues that the trial court erroneously concluded that he failed to meet the one-year statutory requirement for filing of the motion. According to defendant, he should not have been time-limited, since Sumstine states that timeliness is not considered in a collateral attack on a prior strike that could subsequently be used to enhance a sentence.

Despite defendant’s contentions, in addition to being ineligible for relief under section 1473.6 because he was incarcerated at the time of filing, defendant did not carry his burden to plead sufficient grounds for relief. Rather than allege there was newly discovered evidence showing the court failed to advise him of his constitutional rights or the consequences of his plea, defendant instead argued in his motion that the record had been mostly destroyed and therefore no longer affirmatively established that the court had complied with its duties. Because defendant did not adequately allege facts to show the alleged misadvice was newly discovered, the trial court properly denied defendant’s section 1473.6 motion to vacate the judgment.

Given our conclusions, we would also find without merit defendant’s argument that he was entitled under Sumstine to attack the validity of the prior conviction because it constituted a strike for purposes of enhancing any later term.

DISPOSITION

Defendant’s appeal is dismissed.

KRAUSE , J.

We concur:

HULL , Acting P. J.

HOCH , J.

[1] Undesignated statutory references are to the Penal Code.