Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles, Ct. No. A954619, David Wesley, Judge.
Charles B. Holzhauer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
Armstrong, J.
In 1988, appellant Bryant Brim pled guilty to one count of possession for sale of a controlled substance in violation of Health and Safety Code section 11351. On July 25, 2008, the trial court denied appellant's second petition for writ of error coram nobis. We dismiss appellant's appeal.
The facts in this section are derived almost entirely from appellant's briefs in this case and in the trial court. We will assume these facts to be true for the sake of argument. We note that appellant has not offered evidence of many facts in this case, including the key fact that he served his federal sentence consecutively to his state sentence. He has not provided any details of his custody status from 1993 to the present, although he was clearly incarcerated during at least some part of that time period.
Appellant was sentenced to the low term of two years in state prison in the 1988 case. He began serving this sentence in February 1989. He was released from state custody on March 28, 1990 and began serving a 14-month federal sentence. On March 25, 1991, appellant was released from federal prison.
The crux of appellant's complaint is that his plea agreement stated that his state sentence could be served concurrently to any federal sentence. Instead, he was required to serve the federal sentence consecutively.
On December 12, 2001, appellant filed a "motion" in the trial court challenging his plea. On December 26, 2001, the court denied appellant's request for relief. On September 12, 2002, the court denied a second motion by appellant alleging a breach of the plea agreement.
On October 15, 2002, appellant filed a petition for writ of error coram nobis. The court denied the motion for being untimely and also on the merits. On January 31, 2002, this Court denied appellant's petition for writ of habeas corpus. On May 24, 2006, the California Supreme Court denied appellant's petition for writ of habeas corpus.
On July 25, 2008, the trial court denied appellant's second petition for writ of error coram nobis. It is from this denial that appellant now appeals.
Discussion
The trial court denied appellant's coram nobis petition for being untimely as well as on the merits. We see no abuse of discretion in the trial court's ruling. We determine that appellant did not make a prima facie showing of merit and dismiss the appeal.
"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, fn. 4.)
"It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis." (People v. Shorts (1948) 32 Cal.2d 502, 512; see People v. Carty (2003) 110 Cal.App.4th 1518, 1528.) The burden is on the defendant "to explain and justify the delay." (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.)
Appellant has failed to explain or justify the delays in this case. Appellant knew that he would be serving his federal sentence consecutively on March 28, 1990. He acknowledges this, and claims that he "promptly" informed his attorney of the deviation from the terms of his plea bargain. He claims that his attorney promised to take care of it, but did not.
We will assume for the sake of argument that it was reasonable for appellant to believe his attorney and to rely on that attorney's representations during the remainder of appellant's federal prison term. Appellant was released from federal custody on March 25, 1991. He offers no explanation of why he did not check on his case following his release. Had he done so, he would have learned that nothing had been done.
It appears that appellant was free from custody until at least August 6, 1993, when a federal grand jury returned a four-count indictment against him. At some point thereafter, appellant was apparently put into federal custody on new charges. Appellant offers no explanation for his inaction in the 28 months between his release from federal custody in March 1991 and his indictment in August 1993.
Another eight years lapsed between the 1993 indictment and appellant's first attempt to challenge his plea agreement, a motion made in the trial court in December 2001. Appellant's only explanation of this continued delay is that he was unable to gain access to state law materials while in federal prison. The exact period of appellant's incarceration cannot be ascertained from the record. Appellant contends that while in prison, he used a grievance form to obtain the addresses of California courts in an effort to acquire access to state cases, and that his wife contacted his current counsel of record, Mr. Eisner. Both of these actions occurred in 2001. Appellant offers no explanation of what he did in the eight years proceeding those actions.
Disposition
The appeal is dismissed.
We concur: TURNER, P. J., MOSK, J.