P. v. McElwee

Filed 4/6/07 P. v. McElwee CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, David S. Wesley, Judge. Affirmed.

Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

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Dwayne McElwee appeals from a superior court order denying his petition for writ of error coram nobis. The petition challenged the decision of the Board of Parole Hearings (formerly, the Board of Prison Terms; collectively, Board) not to set a parole release date for appellant. Finding no error in the decision of the trial court or of the Board, we shall affirm.

FACTUAL AND PROCEDURAL SUMMARY

Appellants case was before us two years ago in People v. McElwee (2005) 128 Cal.App.4th 1348, and we take our factual summary from the reported decision in that case. Appellant was charged with first degree murder, based on a 1981 homicide. In a 1984 plea bargain, he pled guilty to the lesser and included offense of second degree murder and the prosecution dropped a firearm use allegation against him. He was sentenced to an indefinite term of 15 years to life. (Id. at p. 1350.) The Board conducted a parole release hearing in 2004, at which a representative of the prosecutorial office that had brought the original charges appeared and opposed parole. The Board concluded that appellant was not yet suitable for parole and would pose an unreasonable risk of danger to society or threat to public safety if released. The Board stated that the primary reason for the decision was the manner in which the crime was carried out. The Board declined to set a parole release date for appellant. (Id. at p. 1351.)

Appellant brought a coram nobis petition in the superior court, challenging the Boards decision. He argued that the appearance and argument of the prosecutor at the hearing subverted and undermined the basis of his plea bargain, and that when he entered into the bargain, he thought he would only have to serve 15 years in prison. Characterizing his misbelief as a mistake of fact, appellant argued that he was entitled to coram nobis relief. (People v. McElwee, supra, 128 Cal.App.4th 1348, 1351, 1352.) We affirmed the trial courts decision, pointing out that appellants misunderstanding was not new evidence nor a mistake of fact for purposes of coram nobis relief. We also concluded that, even if there was a mistake of fact on appellants part, a claim of that sort is subject to a credibility decision by the trial court, which impliedly ruled against him. Further, the record of the plea colloquy revealed that the only promises made to appellant were that the charge would be reduced to second degree murder and the firearm use enhancement dropped, and that was done. We pointed out that [t]here is nothing in the bargain that prohibits the circumstances of the crime being accurately described at a parole hearing and, in entering into the plea bargain, appellant understood that the reduced charge carried a prison term of from 15 years in prison up to life.(Id. at pp. 1352-1353.)

Later in the year our decision was filed, appellant appeared before the Board for his seventh parole eligibility hearing. The Board conducted a hearing in which it considered appellants testimony and the pertinent reports. The Board concluded that appellant was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison at that time. The Board found that the commitment offense (i.e., the homicide for which appellant was then serving time in prison) was carried out in a dispassionate, calculated manner, involving shooting the victim in the head twice at close range; that the victim had posed no threat to appellant; and that appellants motive was trivial in relation to the crimea drug deal gone bad. The Board reviewed psychological reports concerning appellant. It found that he needed further therapy in order to come to terms with the cause of the commitment offense and that he had not been forthright with respect to his motive and the circumstances of the crime, and explained the bases for those conclusions. Nevertheless, it commended appellant for his progress towards rehabilitation, including completion of numerous courses and programs, and expressed the view that he was on his way toward getting a parole date, and if he continued in that direction theres no doubt that in the future you will be granted a parole date.

As we have discussed, appellant then prosecuted a coram nobis petition in the superior court, which denied relief, and now presents his appeal from that decision.

DISCUSSION

In our previous decision, we reiterated the requirements for coram nobis relief: (1) that some fact existed which, without fault or negligence of the person convicted, was not presented to the trial court and which would have prevented rendition of the judgment; (2) that the new evidence does not go to the merits of factual issues determined at trial; and (3) that the person convicted did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. (People v. McElwee, supra, 128 Cal.App.4th at p. 1352; People v. Ibanez (1999) 76 Cal.App.4th 537, 545.)

The new fact about which appellant was unaware at the time of his plea and which he urges here is the decision of our Supreme Court in In re Dannenberg (2005) 34 Cal.4th 1061, 1095, which, he argues, allows the Board to deny a parole hearing based solely on the circumstances of the commitment offense.

Appellants argument suffers from the same infirmity that infected his last appeal: the Dannenberg decision is a matter of law, not fact. Failing to anticipate it is not the kind of factual error for which coram nobis relief is available.

Beyond that, we note that the case did not change basic law. The principal holding in Dannenberg is that the decision of the Board as to a prisoners suitability for parole may, indeed must, precede the decision as to a parole release date. Penal Code section 3041, subdivision (b) has long required that a parole release date not be set unless the Board determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. (In re Dannenberg, supra, 34 Cal.4th at p. 1079, quoting 3041, subd. (b).)

The Dannenberg court pointed out that this approach had been the rule followed by the Board for over 25 years, without legislative change. (In re Dannenberg, supra, 34 Cal.4th at p. 1091.) The statement in Dannenberg that the nature of the prisoners offense, alone, can constitute a sufficient basis for denying parole, came from In re Rosenkrantz (2002) 29 Cal.4th 616, 682, which, in turn, cited authority dating back 23 years. (See In re Minnis (1972) 7 Cal.3d 639, 647.) It was hardly new. The most that may be said for appellants position is that he was not aware of the importance that may be attached to the commitment offense and some jurists would have reached a different conclusion. None of that warrants coram nobis relief.

The fact is that defendant struck a plea bargain that netted him a minimum incarceration period of 15 years, rather than 25 years, and elimination of the firearm enhancement term for which he was at risk. He was never promised a parole release after the minimum term, or at any time before he satisfied the statutory criteria. Whether he satisfied them or not is a decision given to the Board, whose decision is entitled to considerable deference by reviewing courts. Appellant does not argue that the Boards decision in his case is unfounded, but only that the Dannenberg decision is a new fact for purposes of coram nobis analysis. As we have demonstrated, it is not.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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