Opinion
B329049
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. GREGG DANIEL McNAMARA, Defendant and Appellant.
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. A341999
LUI, P. J.THE COURT:
Defendant and appellant Gregg Daniel McNamara (defendant) appeals from the denial of his motion to vacate a conviction or sentence pursuant to Penal Code 1473.7, subdivision (a)(2). Appointed counsel found no arguable issues and filed a brief requesting this court to follow the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Defendant filed a supplemental brief asserting the trial court erred in denying his motion and his request for appointment of counsel. We thus considered the contentions raised in the supplemental brief. Finding no merit we affirm the order.
All further unattributed code sections are to the Penal Code unless otherwise stated.
BACKGROUND
Counsel notified the trial court that the clerk's transcript was incomplete as it contained only the order denying the motion, the minute order reflecting the denial, and the notice of appeal. A supplemental clerk's transcript was then filed with an affidavit of the superior court's custodian of records certifying the file could not be located. Counsel thereafter filed a motion to augment the record with a copy of the form motion and attachment (form motion), dated September 30, 2022.
Defendant's copy is not signed or conformed, but the trial court's order denying the motion suggests the court had the motion before it and reviewed the allegations. The proof of service of the motion to augment with defendant's copy attached shows the People were served on February 20, 2024. We thus take judicial notice of defendant's copy of the motion to vacate the conviction or sentence. (See Evid. Code, § 459.)
The statement attached to defendant's motion alleged that in 1978, defendant was convicted of burglary (§ 459) and robbery (§ 211) after pleading guilty in exchange for receiving a five-year suspended sentence with the first year spent in county jail, followed by four years of formal probation. After defendant violated probation in 1985, the firearm enhancement was reinstated and defendant was sentenced to prison and released within the year.
The form motion was brought under section 1473.7, subdivision (a)(2), based upon evidence of actual innocence newly discovered in 2012. In his statement defendant essentially explained he was innocent of the charged crimes and mentally ill at the time of his plea; that two persons arrested while fleeing the scene identified him as the perpetrator and framed him; and that his confession and guilty plea were the result of his mental illness and coercion. Defendant alleges his attorney was negligent, took no steps to follow the procedure of section 1368 to have him declared incompetent to stand trial, and although defendant expressed his innocence to his attorney, his attorney bullied and manipulated him into pleading guilty. Attached exhibits list the dates of defendant's psychiatric hospitalizations in 1970 through 1973, a diagnosis of schizophrenia in 1973, and a probation report confirming his address at a board and care facility.
Defendant also explained that after he was released from parole, he reacquired the ability to sit in a classroom, and returned to school. Though he earned a master's degree in banking and finance he was unable to obtain employment due to his felony conviction. As he furthered his education and his mind began to clear, he realized he had been framed in this case, the severity of the matter, and his innocence. In 2012, he began seeking justice through a series of writs and motions and now through section 1473.7.
On December 21, 2022, after reading and considering defendant's motion, that included a request for appointment of counsel under People v. Fryhaat (2019) 35 Cal.App.5th 969, 981, it was summarily denied by the trial court.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
After examination of the record, appointed counsel filed an opening brief raising no issues. Where, as here, appointed counsel finds no arguable issues in an appeal that is not the first appeal after conviction, we are not required to conduct an independent review of the record. (See Delgadillo, supra, 14 Cal.5th at p. 226.) However, even if we do not independently review the record to identify unraised issues in such a case, we give the defendant the opportunity to file his or her own supplemental brief or letter and we then evaluate any specific arguments raised. (See id. at p. 232.)
Here, counsel provided defendant with a copy of the record on appeal and informed him of his right to file his own supplemental brief. We notified defendant of counsel's brief, gave him 30 days to file his own letter or brief stating any grounds for an appeal, contentions, or arguments that he wished to be considered, and advised him that if no supplemental brief or letter is timely filed the court may dismiss the appeal as abandoned. Defendant has filed a supplemental brief within the time allowed and has asserted the trial court erred in denying his motion and should have appointed counsel. Defendant also contends that the court made erroneous findings.
In its ruling, the trial court explained section 1473.7, subdivision (a)(2) "authorizes setting aside a conviction on the basis of newly discovered evidence of actual innocence. Here, the alleged basis for relief is that the [defendant] was 'incapable of understanding the nature and the cause of the actions against (him),' a claim entirely unrelated to the establishment of actual innocence. As such no cognizable claim for relief has been presented."
In his supplemental brief defendant disagrees, and contends the motion was based upon newly discovered evidence of actual innocence, as shown by the attachments to the motion submitted by appointed counsel. Defendant points to the allegation that due to his psychiatric condition at trial he was unable to understand the nature and cause of the actions against him, to aid in his own defense, or help prove his innocence. Citing People v. Fryhaat, supra, 35 Cal.App.5th at page 981, defendant claims he made a sufficient showing for the appointment of counsel. Our reading of Fryhaat shows that counsel need be appointed for an indigent moving party once "factual allegations stating a prima facie case for entitlement of relief" has been made. (Ibid.)
Section 1473.7, subdivision (a)(2) provides a "person who is no longer in criminal custody may file a motion to vacate a conviction or sentence . . . ¶ [when] [n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice." The provision does not mention mental illness or inability to understand the nature and cause of the actions against a person, to aid in one's own defense, or to help prove innocence.
Defendant has possibly conflated section 1473.7, subdivision (a)(1) with subdivision (a)(2). Subdivision (a)(1) permits a motion to vacate a "conviction or sentence [that] is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." Defendant has not alleged that he is an immigrant or that he faces potential immigration consequences.
"[A]lthough section 1473.7 does not define 'newly discovered evidence,' the phrase has been defined elsewhere in the Penal Code. [Citations.] Those definitions consistently describe newly discovered evidence as testimony, writings and similar things described in Evidence Code section 140 (which defines 'evidence'), discovered after trial or judgment, and that with reasonable diligence could not have been discovered earlier. (People v. Perez (2020) 47 Cal.App.5th 994, 999, italics omitted.) Here, defendant fails to allege the existence of newly discovered evidence, but instead that he only came to understand the charges and evidence in 2012. The statement attached to defendant's motion indicates the two men who allegedly framed defendant knew him and where he lived. Defendant does not allege their identities were newly discovered, and he does not allege what evidence he has discovered that might exonerate him.
Moreover, a motion based on section 1473.7, subdivision (a)(2), must be filed "without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section ...." (§ 1473.7, subd. (c).) Section 1473.7 was added to the Penal Code in 2016 and became effective January 1, 2017. (See Stats. 2016, ch. 739, § 1.) It has been amended several times, but the wording of subdivision (a)(2) has not changed. (See Stats. 2021, ch. 420, § 1.) Defendant's motion was filed in September 2022, about 10 years after 2012 when he realized he had been framed in the case, the severity of the matter, and that his innocence made the conviction wrongful.
In sum, defendant has described no evidence which might make a prima facie case of entitlement to relief and he has not alleged any facts showing he acted with diligence in bringing this motion. We thus conclude the trial court did not err in denying the motion without appointing counsel.
DISPOSITION
The order denying the motion brought under section 1473.7, subdivision (a)(2) is affirmed.
ASHMANN-GERST, J. CHAVEZ, J.