Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. S6-08436
Duffy, J.
This is an appeal from the denial of a petition for writ of error coram nobis.
Counsel for defendant, Donald Eugene Radonich, has filed an opening brief that states the case and facts but raises no issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant, as he is entitled to do, filed his own letter brief. We have, as required by Wende and People v. Kelly (2006) 40 Cal.4th 106, 110, 124, set forth herein the facts, the procedural background (including a description of the crimes of which defendant was convicted), and the disposition of defendant’s case; reviewed the entire relevant record; and considered defendant’s arguments. After so doing, we have determined that, for reasons we will explain, defendant’s arguments are without merit and we must affirm the judgment.
PROCEDURAL BACKGROUND AND FACTS
In 1996 defendant pleaded guilty to assault with a firearm (Pen. Code, § 245, sud. (a)(2)) and pleaded no contest to being a felon in possession of a firearm (§ 12021, sud. (a)(1)). He admitted the truth of an enhancement allegation that he personally used a firearm. (§ 12022.5, subd. (a).) The trial court suspended imposition of sentence and placed defendant on formal probation for 36 months.
Further statutory references are to the Penal Code unless otherwise stated.
In 1999 defendant admitted violating probation and it was terminated. He was sentenced to state prison for two years and four months consecutive to a sentence he was already serving after a conviction in Marin County. The trial court imposed one year for the aggravated assault and a consecutive sentence of one year and four months for the firearm-use enhancement. It stayed punishment for the conviction of being a felon in possession of a firearm pursuant to section 654.
On August 24, 2009, defendant filed a petition for writ of error coram nobis. He alleged that he pleaded guilty only on the strength of inaccurate representations concerning the time he would have to serve in prison. The court told him he was facing a potential maximum sentence of 14 years and eight months. His trial counsel gave him the same information. Because he was unskilled in the law he did not discover that the representations were inaccurate until considerable time had passed and that his potential maximum sentence was only three years and eight months.
Defendant pleaded guilty in order to avoid a finding that he committed a violent felony as defined in section 667.5, subdivision (c)(8). Because (he argues) there was no such finding, the plea bargain entitled him to 50 percent “good time credits” and his subjection to the credits limitation of section 2933.1, subdivision (a), which limits worktime credits to 15 percent for anyone convicted of a violent felony listed in section 667.5, subdivision (c), is in derogation of the plea bargain.
Defendant would not have waived his right to a jury trial had he been given accurate advice about his prison-sentence risk and the credits limitation.
On September 2, 2009, the trial court denied the petition.
DISCUSSION
Defendant’s coram nobis litigation encounters the insuperable barrier that there are very few cases in which a coram nobis petition may be entertained, much less granted, and his is not one of them. Coram nobis is a disfavored remedy available only in unusual circumstances in which, long after litigation has been settled, the petitioner discovers an unknown and extrinsic fact that would have stopped the court from rendering judgment.
“The writ of error coram nobis is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown.” (People v. Kim (2009) 45 Cal.4th 1078, 1091, fn. omitted.) In California, “ ‘the writ has been used almost exclusively to attack judgments in criminal cases.’ ” (Id. at p. 1091, fn. 9.) 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.’ ” (Id. at p. 1091.)
Lest “ ‘the stability of judgments generally in criminal cases... be reduced to a dangerous state of uncertainty’ ” (People v. Lumbley (1937) 8 Cal.2d 752, 761), particularly when some fact has been discovered years after the finality of judgment, “ ‘ “the scope of the writ is extremely narrow and... it is anything but a catch-all or omnibus remedy.” ’ ” (Rollins v. City and County of San Francisco (1974) 37 Cal.App.3d 145, 150.) Seeking relief under a petition for writ of error coram nobis is a last resort, largely supplanted by the availability of relief pursuant to the writ of habeas corpus (see People v. Adamson (1949) 34 Cal.2d 320, 327), of narrower application than habeas corpus (People v. Kim, supra, 45 Cal.4th at p. 1091) and available only “to secure relief[] where no other remedy exists.” (Adamson, at p. 326.) The unknown fact latterly discovered must be an extrinsic fact (People v. Goodspeed (1963) 223 Cal.App.2d 146, 153; People v. Olgin (1956) 139 Cal.App.2d 807, 809; see Kim, supra, at p. 1094), i.e., not merely some fact attendant to the facts of the case itself and evident on the record thereof. In sum, unlike other statutory writs that we call extraordinary but in fact are commonplace means for seeking and obtaining a remedy, coram nobis is truly an extraordinary writ, and this case does not present one of the “rare situations which will authorize the granting of the writ.” (Lumbley, at p. 759.)
Because of these fundamental restrictions, we find no basis under which defendant might be entitled to relief on coram nobis principles. Defendant’s claims simply are not entertainable on coram nobis.
First, defendant’s claims are challenges to his guilty plea to assault with a firearm and its consequence of limited custody credits, based on events at the court session in which the trial court and counsel discussed defendant’s situation, the parties worked out a disposition, and defendant rendered his plea. “In the absence of an allegation of state involvement, petitioner’s allegation that counsel improperly induced him to enter a guilty plea does not state a ground for coram nobis relief.” (In re Nunez (1965) 62 Cal.2d 234, 236.) Defendant’s petition for writ of error coram nobis does complain of misrepresentations by the court, the defense attorney, and the district attorney “on leniency of the sentence.” These, however, are “generalities which did not suffice to make the showing required for the writ.” (In re Thomas (1982) 132 Cal.App.3d 779, 782.)
As far as the record shows, neither the court nor the district attorney had any involvement in inducing defendant to enter his plea, as opposed to merely describing defendant’s situation and options to him. The closest the record comes to showing an inducement was the court’s telling defendant, who was 30 years old at the time, that the maximum sentence, if meted out, “would pretty much interrupt the middle years of your life.” That comment, however, was, no more than a statement of the inevitable consequence of spending almost 15 years in prison if defendant served the entire maximum sentence. It had no coercive content. The foregoing is, however, an aside, because coram nobis operates only to correct extrinsic circumstances, and defendant has not alleged any such thing, such as extrinsic deception by the prosecutor.
Second, defendant is alleging legal mistakes, but our Supreme Court has stated that mistakes of law are not a proper basis for seeking relief via writ of error coram nobis. “The remedy does not lie to enable the court to correct errors of law.” (People v. Banks (1959) 53 Cal.2d 370, 378; accord, People v. Kim, supra, 45 Cal.4th at p. 1093.) In general, the writ of error “coram nobis is unavailable where a defendant, ‘with knowledge of the facts,’ pleads guilty ‘because of ignorance or mistake as to the legal effect of those facts.’ ” (Kim, at p. 1102.) Each of defendant’s claims is a claim of mistake of law. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 [defendant’s belief, at the time of his plea, that he would serve a certain period of time in prison “was not a mistake of fact but one of law”], quoted with approval in Kim, at p. 1102.)
Beyond those threshold bars to coram nobis relief, each of defendant’s claims rests on inadequate legal or factual premises, or has both such deficiencies.
In defendant’s first claim on appeal, he notes that “[u]se of a firearm is an element of assault with a firearm” and, citing People v. Smith (1985) 163 Cal.App.3d 908, 913, and People v. Hartsell (1973) 34 Cal.App.3d 8, 12, asserts that those cases proscribe punishment for a firearm-use enhancement whenever use of a firearm is an element of the substantive crime. Those cases, however, describe the law as it existed decades ago. Since then the law has changed. Now, and at the time of defendant’s offenses, when an offender is convicted of aggravated assault with a firearm under section 245, subdivision (a)(2), a section 12022.5 enhancement applies notwithstanding that firearm use was an element of the section 245 violation. (§ 12022.5, subd. (d); see Stats. 2002, ch. 126, §§ 3, 14; see also Stats. 1982, ch. 1404, § 2.1, pp. 5358-5359; People v. Joachim (1995) 38 Cal.App.4th 1526, 1529.)
As noted, “ ‘ “[t]he writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment; and which without fault or negligence of the party, was not presented to the court.” ’ ” (People v. Kim, supra, 45 Cal.4th at p. 1092.) Defendant cannot say that a fact existed that, if before the trial court, would have prevented rendition of judgment.
Defendant’s argument appears to be that if he had received better advice at the time he was weighing his dispositional options—this would have been the fact that should have existed but did not—he would not have entered a guilty plea because he would have concluded that his potential sentence exposure was sufficiently short, even if he should be convicted following a trial, to make worthwhile the risk of proceeding to trial.
But defendant miscalculates his maximum potential sentence exposure and his counsel and the prosecutor stated it correctly. During dispositional discussions in court the prosecutor stated that defendant faced “[t]wo, three, or four on the [section] 245; three, four, or ten with the special [section 12022.5] allegation. And he could get eight months consecutive on the [charged violation of Health and Safety Code section] 11378.” Defendant’s counsel agreed with that calculation, and the trial court summed up, “[s]o that being the sack of sand hanging over your head, as 14 years, eight months, Mr. Radonich....” Indeed, at the time that was the punishment for that constellation of offenses. (§§ 245, subd. (a)(2), 12022.5, subds. (a), (d); Health & Saf. Code, § 11378.) In sum, defendant’s first claim is without merit.
In defendant’s second claim on appeal, he contends that he was convicted only of a serious felony defined in section 1192.7, subdivision (c)(8), and not of a violent felony as defined in section 667.5, subdivision (c)(8). He asserts that the 15 percent limitation on certain custody credits contained in section 2933.1, subdivision (a), applies only to violent felonies and not to serious felonies.
The credit limitation set forth in section 2933.1, subdivision (a), indeed applies only to violent felonies—the statutory provision says nothing about, nor does it make reference to, serious felonies. (See People v. Kimbell (2008) 168 Cal.App.4th 904, 908-909.)
Contrary to defendant’s contention that he committed only a serious felony, however, his offense constituted a violent felony. (§ 667.5, subd. (c)(8).) Defendant appears to be operating under the impression that an offense can constitute either a serious felony or a violent felony but not both simultaneously, and the record includes a portion of the respondent’s brief from his appeal in 1999 in which the People stated that his violation of section 245, subdivision (a)(2), constituted a serious felony.
Any such impression, however, would be mistaken. An offense can constitute both a serious felony and a violent felony. (People v. Jenkins (2006) 140 Cal.App.4th 805, 810 [speaking of robbery].) The fact that defendant’s aggravated assault conviction may have been a serious felony does not preclude it from also being a violent felony. (See People v. Toledo (2001) 26 Cal.4th 221, 226 [noting a trial court’s finding that assault with a firearm falls into both categories of aggravated felonies].)
Defendant’s second claim also encounters difficulties in meeting pleading requirements. The record of the plea-taking court session does not show a discussion of the custody credit consequences of pleading guilty to a violent felony. Defendant stated in his petition for writ of error coram nobis that “[t]he plea bargain was to avoid a [section] 667.5[, subdivision] (c)(8) conviction” and “the plea agreement allowed petitioner to earn 50 [percent] good time credits which have been denied him.” These again are “generalities which did not suffice to make the showing required for the writ.” (In re Thomas, supra, 132 Cal.App.3d at p. 782 [addressing a coram nobis challenge to sentencing credits].)
In sum, defendant’s second claim is without merit.
In addition, our own review of the entire relevant record discloses no arguable issue on appeal.
For the foregoing reasons, we will affirm the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P. J., Premo, J.