Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. M12666 Patrick Donahue, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
We appointed counsel to represent defendant Rick Alan Davitt on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. In an effort to assist this court with our independent review of the record, counsel provided this court pursuant to Anders v. California (1967) 386 U.S. 738 the following possible issue: whether the trial court abused its discretion in denying defendant’s motion for specific performance of the plea bargain. Defendant was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from defendant. We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.)
I
FACTS
Defendant, who was in state prison on a parole violation, filed a petition for a writ of habeas corpus in the Orange County Superior Court seeking a stay of enforcement of Penal Code section 3003.5. That section prohibits sex registrants from living within 2, 000 feet of a school or park where children regularly gather. (§ 3003.5, subd. (b).) The superior court denied the petition and defendant then filed a petition for a writ of habeas corpus in this court. We issued an order to show cause to be heard in the superior court to resolve defendant’s challenge to his parole condition prohibiting him from residing within 2, 000 feet of a school or park where children regularly gather. We summarily denied his challenge to his parole condition requiring GPS monitoring. The superior court denied the petition, finding it was not ripe for decision as defendant had subsequently been committed to state prison on a new felony conviction.
All statutory references are to the Penal Code.
In conjunction with the hearing on the petition, the court also conducted a hearing on defendant’s motion for specific performance of the plea agreement in the misdemeanor case that gave rise to his sex registration requirement. In the alternative, he sought an order vacating his convictions in the misdemeanor case. Defendant filed the motion while the petition was pending a hearing.
In 1986, defendant was charged with indecent exposure (§ 314, subd. 1) on two dates and with committing lewd conduct in public (§ 647, subd. (a)) on one of the dates. On December 15, 1986, defendant pled guilty to the two counts of indecent exposure and was placed on three years of formal probation and ordered to serve 10 days in jail. The court ordered defendant to report to jail to begin serving the jail term on January 11, 1987. A warrant for defendant’s arrest on that case was prepared in February 1987. It issued and probation was revoked on March 2, 1987. On March 26, defendant was found in violation of his probation. Probation was reinstated with the additional condition that he serve three days in jail. Within four months, another warrant was issued for defendant’s arrest and probation was again revoked.
At the time of defendant’s guilty plea to the misdemeanors, the law in California was to the effect that sex registration for a misdemeanor violation of indecent exposure or lewd act in public constituted cruel or unusual punishment under California’s constitution. (In re Reed (1983) 33 Cal.3d 914, 926 [lewd act], overruled by In re Alva (2004) 33 Cal.4th 254, 264; In re King (1984) 157 Cal.App.3d 554, 558 [indecent exposure], overruled sub silentio by In re Alva, supra, 33 Cal.4th 914.) In defendant’s declaration in support of his motion, he averred he had been told by his attorney on the misdemeanor case that he would not have to register as a sex offender if he pled guilty to the proposed “deal.” Defendant stated that it had been important to him in 1986 that he not have to register as a sex offender, and he was not ordered to register.
On December 26, 2003, seven years after his guilty plea to the two counts of indecent exposure, defendant pled guilty to failing to register as a sex offender and felony possession of methamphetamine. Prior to that time, defendant had never been ordered by a court to register as a sex offender, but he had been ordered by the California Department of Corrections in 1998 or 1999 to register. Defendant did not file his motion for specific performance of the alleged plea agreement until March 25, 2010.
At the hearing on his motion, defendant’s attorney requested the court to treat the motion as a petition for a writ of mandate. (See People v. Picklesimer (2010) 48 Cal.4th 330, 346.) The court declined the invitation because, as the deputy district attorney pointed out, the district attorney does not represent California’s Department of Corrections and Rehabilitation and it is that department that presumably would be ordered to comply with any ruling declaring defendant is not required to register pursuant to section 290. The court also found that if it treated the motion as a petition for a writ of coram nobis or as a petition for a writ of habeas corpus, it should be denied as untimely given the fact that relief was not requested until 2010, and that the latest defendant would have become aware of his obligation to register as a sex offender occurred when he pled guilty to failing to register as a sex offender in 2003.
The court heard testimony from defendant in connection with his request to dismiss the 1986 misdemeanor case. Defendant said his arrest in 1986 occurred because he got out of a jacuzzi to urinate and a woman called the police. Prior to pleading guilty, he did not know what registering as a sex offender meant.
On cross-examination defendant denied pleading guilty to two counts of indecent exposure. Defendant admitted for purposes of impeachment that he subsequently was convicted of impersonating another (§ 529.3) in 1988, and possibly a petty theft in 1990 and another in 1991. He said he may have also been convicted of giving false information to a police officer (§ 148.9) in 1993, a burglary (§ 459) in 1994, exhibiting a deadly weapon (§ 417) in 1994, another petty theft in 1998, and another burglary in 1998. The court did not find defendant credible and denied the motion to dismiss.
Defendant’s notice of appeal, filed three days after the hearing in superior court, stated the appeal was from a “[m]otion for specific performance, writ of habeas corpus, writ of error coram nobis, and/or writ of mandate.”
II
DISCUSSION
Defendant cannot appeal the denial of his petition for a writ of habeas corpus. His remedy was to file a new petition in this court. (In re Reed, supra, 33 Cal.3d at p. 918, overruled on another ground by In re Alva, supra, 33 Cal.4th at p. 264 [sex offender registration is not punishment]; see § 1506.) He can, however, appeal the denial of a petition for a writ of error coram nobis. (People v. Allenthorp (1966) 64 Cal.2d 679, 683; § 1237.)
Defendant sought to eliminate his obligation to register as a sex offender under section 290. That obligation was triggered by his 1986 convictions for indecent exposure. He argued below that as registration for his offenses was unconstitutional in 1986, and that he had been told by his attorney he would not have to register if he pled guilty, the state should have to live with the agreement whereby he pled guilty to the charges in reliance on the representation. While the proposition holds a certain initial attraction, it is not arguable in this case.
At the hearing on defendant’s motion, he testified that prior to the time that he pled guilty he did not know what registering as a sex offender meant, but that his attorney told him he would not be required to register as a sex offender if he pled guilty. “[W]hen a plea rests in any significant degree on a promise or an agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobellov. New York (1971) 404 U.S. 257, 262.) Here there was no evidence of a bargain based upon a representation by the court or the prosecutor with regard to registration. There was not, therefore, any “agreement” to be specifically enforced by a ruling relieving defendant of his present statutory obligation to register as a sex offender.
Even assuming defendant could use a writ of error coram nobis as a vehicle to withdraw his guilty pleas in the misdemeanor case, or to have those convictions vacated based upon the change in the law occasioned by the Supreme Court’s decision in In re Alva, supra, 33 Cal.4th 254, that procedure has a timeliness component defendant failed to meet. “It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis. [Citations.]” (People v. Shorts (1948) 32 Cal.2d 502, 512-513.)
Obviously, so long as defendant was not directed to register as a sex offender after the court that sentenced him on the indecent exposure convictions did not order him to register as a sex offender, there was no reason for him to take any action in connection with his 1986 indecent exposure convictions. However, at least by the time he was convicted in 2003 for failing to register as a sex offender based upon his 1986 convictions, the timeliness clock started ticking. Defendant’s declaration contains no explanation or reason for the delay in seeking relief in the misdemeanor matter until March 2010, more than six years after his conviction for failing to register. (People v. Shorts, supra, 32 Cal.2d at p. 513 [petition for relief must establish timeliness of request]; People v. Egan (1946) 73 Cal.App.2d 894, 900 [showing of diligence required in application for writ of error coram nobis]; see also People v. Tapia (1964) 231 Cal.App.2d 320, 322 [three year unexplained delay rendered petition untimely].) The court properly denied relief based upon its determination that the request was untimely.
Defendant testified he was first ordered to register as a sex offender by the California Department of Corrections in 1998 or 1999. He claimed “a couple years before” his conviction for failing to register as a sex offender, he paid an attorney to correct the registration requirement situation, but the superior court apparently did not believe defendant, noting that in addition to being unable to recall certain facts, defendant also had “credibility issues.”
The court also properly denied defendant’s request to dismiss the misdemeanor case. The court denied that request after listening to defendant testify and noting his failure or recollection and lack of credibility. We accept the trial court’s evaluation of credibility as it is supported by substantial evidence. (People v. Martinez (2010) 47 Cal.4th 911, 949.) The only evidence offered in support of the motion to dismiss consisted of defendant’s testimony and the court did not find him credible. Even were we not required to defer to the trial court’s credibility determination, we would have reached the same conclusion. Defendant was not credible, even on paper. The court did not err in denying defendant’s motion to dismiss.
“[District Attorney]: And after that, in 1988 you picked up - I am sorry, in 1990, 1991 you picked up two separate convictions for petty theft, correct?
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.
“A. It is possible.
[¶]... [¶]
“Q. And then in 1993 you were convicted of giving false information to a police officer in violation of Penal Code section 148.9; is that correct?
“A. I haven’t reviewed all this. I haven’t seen my offenses, so you are throwing some other things at me. I don’t recall.
“Q. You wouldn’t disagree with that, would you?
“A. I would say it is possible. You can make one up in there, and I might not recall. Go ahead.
“Q.... Also in 1998 you were convicted of burglary, in violation of Penal Code section 459; do you remember that?
“A. That was a petty theft in a store, a couple beers and a steak I took out of a store, I think.
“Q. And then
“A. You are making it into a burglary. I guess, that is - I guess, burglary sounds better.
[¶]... [¶]
“Q.... Then on February 23rd, 2010... you got convicted of felony burglary; is that correct?
“A. I took some Prilosec out of the store. It was a medical condition. They made me quit every job. I have CDC and kicked me out of every house. I just got desparate.
“Q. Did you pay for it?
“A. No. That is - hence, that it why I got convicted.
“Q.... That is stealing right?
“A. Let me think about it. Yeah.”