Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. YA035222, Mark S. Arnold, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Manuel Antonio Gonzalez III (Gonzalez) appeals from the trial court’s order denying his petition for writ of error coram nobis. Gonzalez pled no contest to first degree residential burglary (Pen. Code, § 459) on December 17, 1997. The trial court sentenced Gonzalez to four years in prison, suspended imposition of sentence and granted Gonzalez three years formal probation. On June 4, 2007, Gonzalez, acting in propria persona, filed in the trial court a petition for writ of error coram nobis alleging his 1997 plea had been improper and that he therefore should be allowed to withdraw the plea. We affirm the judgment (order denying the petition for writ of error coram nobis).
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
In a felony complaint filed December 2, 1997, Gonzalez and a codefendant, Richard Paul Del Real (Del Real), were charged with first degree residential burglary in violation of section 459. On December 17, 1997, Gonzalez entered into a negotiated plea agreement under the terms of which he was to be sentenced to the middle term of four years in prison, the sentence was to be suspended and he was to be granted probation for a period of three years on the condition he spend the first 365 days in county jail. Before entering his plea, Gonzalez waived his right to a jury trial, his right to confront and cross-examine the witnesses against him, his right to present a defense and his privilege against self-incrimination. He indicated he was making the “plea of ‘Guilty’ freely and voluntarily and with full understanding of all the matters set forth in the pleading and in [the plea] form,” and that he was entering the plea to “take advantage of a plea bargain.”
Gonzalez’s probation was extended for one year on December 15, 2000. In 2001, while still on probation, Gonzalez was charged with and convicted of attempted murder and assault with a deadly weapon. He was sentenced for those convictions to a term of 23 years in prison.
On December 6, 2003, Gonzalez, acting in propria persona, mailed a petition for writ of habeas corpus to the Los Angeles County Superior Court challenging his 1997 burglary conviction. The petition was marked “ ‘received’ ” on February 9, 2004 and was denied the following day. In its minute order, the trial court indicated, “[Gonzalez’s] petition for writ of habeas corpus has been read and considered. [¶] [Gonzalez] claims that his counsel was ineffective and that he is innocent. [Gonzalez] further claims that his guilty plea entered on 12/17/97, was not voluntarily made. [¶] [Gonzalez] has not set forth facts that demonstrate his trial counsel fell below an objective standard of reasonableness under prevailing professional norms. [¶] [Gonzalez’s] guilty plea in Superior Court form, which he signed, contradicts his contention that his plea was not constitutionally valid. [Gonzalez] pled guilty to take advantage of a plea bargain made with the People. [Gonzalez] initialed each box where appropriate and was represented by counsel. [Gonzalez] has not demonstrated there are sufficient facts to support this claim. [¶] [Gonzalez] further claims there is newly discovered evidence: the statement of Johnny Rivera of 12/8/02. This evidence is not new. The statement alleges that [Gonzalez] is innocent. [Gonzalez] would have known that on the day that [he] pled guilty. Furthermore, Johnny Rivera did not testify against [Gonzalez] at trial. It cannot be said that he was convicted based on perjured testimony. [¶] [Gonzalez] was convicted because he plead [sic] guilty. [¶] [Gonzalez] has not justified why it has taken almost seven years to bring his petition. (In re Swain (1949) 34 Cal.2d 300[.]) [¶] All of [Gonzalez’s] claims are either refuted by the record or of no legal merit.”
In further attempts to challenge his burglary conviction, Gonzalez filed petitions for writs of habeas corpus in the California Supreme Court on June 3, 2004 and August 4, 2004. These petitions were summarily denied on April 20, 2005.
Again acting in propria persona, Gonzalez filed a petition for a writ of habeas corpus in the United States District Court. In the petition, Gonzalez raised 29 contentions, including that he had been incompetent to enter a plea because he had been under the influence of alcohol at the time the plea was taken; that he had not understood that pleading “no contest” is the equivalent of entering a guilty plea; that, as an 18-year-old youth, he had not understood or properly waived his Boykin/Tahl rights; that his trial counsel had been ineffective in that she misadvised him, falsified documents and failed to respond when he informed her that he wished to withdraw his plea; that, because he refused to speak to police officers without first consulting a lawyer, the prosecution had fabricated evidence against him; that the trial court had committed prejudicial error when it failed to investigate his asserted constitutional violations; and that the trial court had erred by failing to consider as “ ‘newly found evidence’ ” a statement made by Johnny Rivera indicating he, Gonzalez, did not participate in the burglary. After considering the People’s response, the District Court dismissed Gonzalez’s petition on January 27, 2006. After the District Court dismissed his petition, Gonzalez requested from that court a certificate of appealability. On April 24, 2006, the court denied his request.
Although the record is not entirely clear, at some point Gonzalez filed a pro per petition in the Ninth Circuit Court of Appeals for “rehearing” of its denial of his request for a “certificate of appealability” and a pro per petition for a writ of certiorari in the United States Supreme Court. Both were apparently denied.
On June 4, 2007, Gonzalez filed in the trial court a “petition for writ of error coram nobis to vacate the judgment rendered against [him] and entered on or about December 17, 1997 . . . .” Gonzalez asserted that, although he was innocent of the charges, he had entered a plea because “[his] trial counsel continuously told [him] that a judge or a jury would never believe his defense.” In his petition, Gonzalez indicated another man involved in the burglary, Johnny Rivera (Rivera), later informed Gonzalez that he, Rivera, had been “coerced into falsely implicating [Gonzalez as] being involved in the [burglary].” Gonzalez did not learn of these false representations until after he had entered his plea and sentence had been imposed.
Gonzalez attached as an exhibit to his petition a statement by Rivera dated December 8, 2002. Rivera indicates that he, Del Real, Gonzalez and a fourth man, Alejandro Rodriguez (Rodriguez), drove to a particular house in Torrance. Although Del Real, Rivera and Rodriguez intended to burglarize the house, Gonzalez was unaware of the plan. While Rivera, Del Real and Rodriguez entered the house and took certain property, Gonzalez waited in the car. Rivera continued, “I told [the police officers] the story of what happened and they asked me if ‘Manuel Gonzalez’ was involved[.] I told them that he didn’t know anything about the burglary . . . . The two detectives were both very upset and frustrated, then told me to work with them, if I wanted them to work with me. They then told me that ‘Gonzalez broke the window right.’ And then I understood what they wanted me to say. So I agreed with everything they said about Manuel Gonzalez taking place in the residential burglary because I was scared and wanted to be released.”
Gonzalez also attached to his petition his own declaration in which he again asserted his innocence. In addition, Gonzalez indicated he was “misrepresented by an incompetent trial counsel[,] . . . who committed many acts of fraud.” Gonzalez stated, “I never signed the plea agreement, you can see her signature of the date [sic] and her forging [of] my signature in the boxes. The conviction is a miscarriage of justice, [and] breech [sic] of [the] plea agreement, due to police fabricating evidence.”
As an additional exhibit to his petition, Gonzalez attached a copy of the police report pertaining to the burglary. The report indicates that in November of 1997, the burglary and attempted burglary of two residences in Torrance were committed by groups of young men. On December 1, 1997, members of the “Crime Impact Team” observed Del Real and Gonzalez leave a residence on Delores Street and enter the same car which had been seen at the previous burglary and attempted burglary. Del Real and Gonzalez, joined by two other young men, then drove to various houses in Torrance. Gonzalez was observed knocking on the front door of at least one house and, when no one responded, entering the back yard of the house with Del Real and a third young man. A short time later, Gonzalez was observed walking out the front door of the residence carrying stereo components and a long object later determined to be a sword. As they drove off, officers followed Gonzalez and his companions, eventually stopping them in an area near Pacific Coast Highway.
Gonzalez and the other young men, including Del Real and Rivera, were taken into custody. Rivera waived his Miranda rights and agreed to speak with police officers. He told the officers that he, Gonzalez, Del Real and a fourth man, Rodriguez, had agreed to “commit a robbery of a residence.” Gonzalez walked up to the front door and determined that no one was at home. Gonzalez, Del Real and Rivera then “hopped” the fence to the backyard. Gonzalez smashed the window with spark plug chips and unlatched the window lock. Rivera crawled through the window, then unlocked the door so the three could enter the house. The three young men took numerous items from the house, left through the front door, then drove off.
On June 4, 2007, the trial court denied Gonzalez petition for writ of error coram nobis. The trial court indicated: “[Gonzalez] raises the same ground that [he] raised in the petition for writ of habeas corpus which was denied on 2/10/04. [¶] The petition is, likewise, denied for the same reasons as the habeas petition denial.”
Gonzalez filed a timely notice of appeal from the trial court’s order on June 27, 2007.
This court appointed counsel to represent Gonzalez on August 13, 2007.
CONTENTIONS
After examination of the record, Gonzalez’s appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice dated September 10, 2007, the clerk of this court advised Gonzalez to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. In a supplemental brief filed September 27, 2007, Gonzalez asserts: (1) There was a “breach of [his] plea agreement due to [the] use of illegally obtained evidence by [the] Torrance Police Department” which also fabricated and tampered with the evidence, (2) his plea agreement was breached when the trial court extended his probation for an additional year because he had paid only half of the restitution ordered, and (3) the trial court erred by “failing to hold an evidentiary hearing to investigate [the] validity of [his] plea agreement.”
DISCUSSION
1. Gonzalez’s plea was proper.
Gonzalez asserts the Torrance Police Department improperly questioned Rivera, causing him to make false statements. He contends that, in view of the discovery of Rivera’s subsequent statement exonerating him, his plea was improper and the trial court erred in denying his petition for writ of error coram nobis. Gonzalez urges this court should reverse the trial court’s order and that he should be given the opportunity to withdraw his plea.
“In this state a motion to vacate a judgment in the nature of a petition for coram nobis is a remedy of narrow scope. [Citations.] Its purpose is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court. [Citations.] The applicant for the writ ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ; otherwise he has stated no ground for relief.’ [Citation.]” (People v. Adamson (1949) 34 Cal.2d 320, 326-327.)
A petition for coram nobis “is an attack upon a judgment which has become final and in favor of which there are strong presumptions of regularity . . . .” (People v. Adamson, supra, 34 Cal.2d at pp. 329-330.) “In coram nobis proceedings there is a strong presumption that the judgment of conviction is valid in all respects. [Citations.] The defendant has the burden of overcoming such presumption and establishing by a preponderance of the evidence ‘that he was deprived of substantial legal rights by extrinsic causes.’ [Citations.]” (People v. Goodspeed (1963) 223 Cal.App.2d 146, 152.) A ruling granting or denying a petition for coram nobis is reviewed for abuse of discretion. (People v. Ibanez (1999) 76 Cal.App.4th 537, 544.)
In Gonzalez’s case it cannot be said that there existed some fact which would have prevented rendition of the judgment “if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court.” (People v. Adamson, supra, 34 Cal.2d at pp. 326-327.) As the trial court stated in its February 10, 2006, order denying Gonzalez’s petition for writ of habeas corpus, if Gonzalez was innocent, he was well aware of that fact at the time he chose to enter his plea. (See People v. Goodspeed, supra, 223 Cal.App.2d at p. 153 [“[A]t the time judgment was pronounced . . ., defendant well knew that he was addicted to narcotics.”].) Moreover, there is no guarantee that, had the trial court known of Rivera’s statement, it would have declined to accept Gonzalez’s plea. The police report indicated Gonzalez was observed leaving the burgled residence while carrying stereo components and a sword.
Gonzalez has failed to show by a preponderance of the evidence “ ‘that he was deprived of substantial legal rights by extrinsic causes.’ ” (People v. Goodspeed, supra, 223 Cal.App.2d at p. 152.) In spite of the fact he ostensibly knew he was innocent, Gonzalez, after knowingly waiving his rights to a trial, to cross-examine the witnesses against him, to present a defense and his privilege against self-incrimination, voluntarily chose to plead no contest to the burglary charge. In view of the record before us, Gonzalez has failed to overcome the strong presumption that the judgment of conviction is valid. (Ibid.)
2. The issue, that the trial court “breached” the plea agreement by extending Gonzalez’s probation by one year, is not cognizable on appeal.
Gonzalez is appealing from the trial court’s denial of his petition for writ of error coram nobis. “A petition for coram nobis does not open the entire criminal proceeding for review.” (People v. Lampkin (1968) 259 Cal.App.2d 673, 675.) As stated above, the purpose of coram nobis is “to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it . . . .” (People v. Adamson, supra, 34 Cal.2d at pp. 326-327.) The extension of Gonzalez’s probationary period by one year did not depend upon some previously unknown fact disclosed only by Rivera’s statement.
In addition, we note Gonzalez failed to raise the issue of the extension of his probation in his petition to the trial court. The only issue argued in Gonzalez’s petition for writ of error coram nobis was the propriety of his plea in view of “newly discovered evidence” consisting of Rivera’s statement. Accordingly, the only issues which may be raised on appeal from the trial court’s denial of the petition are those that directly question that ruling. (See People v. Murtha (1993) 14 Cal.App.4th 1112, 1122 [Claims which may be raised on appeal are limited to those which were raised in the trial court.]; People v. Sparks (1967) 257 Cal.App.2d 306, 310 [An issue not raised in the trial court may not be considered on appeal.].)
3. The trial court was not required to hold an evidentiary hearing.
Gonzalez asserts the trial court erred by failing to hold an evidentiary hearing when “presentation of police corruption and evidence tampering not known when [the] plea agreement was entered came to light.” The contention is without merit.
It has been determined that, in view of the strict requirements for relief in the form of coram nobis, “it will often be readily apparent from the petition and the court’s own records that a petition for coram nobis is without merit and should therefore be summarily denied.” (People v. Vaughn (1966) 243 Cal.App.2d 730, 733.) It is only when “facts have been alleged with sufficient particularity [citation] to show that there are substantial legal or factual issues on which availability of the writ turns, [that] the court must set the matter for hearing.” (Ibid.)
In the present case, it was readily apparent from the petition and court records that Gonzalez’s petition for writ of error coram nobis was without merit. Johnny Rivera’s statement asserting Gonzalez was innocent of the burglary did not amount to newly discovered evidence. As the trial court stated, “The statement alleges that [Gonzalez] is innocent. [Gonzalez] would have known that on the day that [he] pled guilty.” Under these circumstances, the trial court was not required to hold an evidentiary hearing on the matter.
APPELLATE REVIEW
We have examined the entire record submitted by Gonzalez and are satisfied that Gonzalez’s appellate counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment (order denying the petition for writ of error coram nobis) is affirmed.
We concur: KLEIN, P. J., CROSKEY, J