Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 29028 of Merced County. Brian L. McCabe, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
Appellant Kao Kuang Saechao appeals from the denial of his petition for writ of coram nobis. We will affirm the order denying the writ.
Facts and Procedural History
In 2004, appellant pleaded no contest to one count of violation of Penal Code section 12021, subdivision (a)(1) (possession of a firearm by a convicted felon, a felony) and one count of violation of Penal Code section 243, subdivision(e)(1) (battery of a spouse or other specified person, a misdemeanor); he also admitted a prior prison term enhancement allegation (Pen. Code, § 667.5, subd. (b)). At the time of his plea, he filled out a form entitled “Advisement of Rights, Waiver, and Plea Form for Felonies.” The form acknowledged, among other things, that the felony count carried a possible sentence of 16 months, two years, or three years, plus one year for the enhancement. At the change of plea hearing, appellant replied, “Yeah,” when the court asked whether appellant knew he was pleading no contest to a felony charge and a misdemeanor charge. He answered, “Okay,” when the court asked if appellant understood that he would be sentenced to four years in prison.
At the sentencing hearing, the court imposed the agreed sentence of four years, suspended execution of sentence, and admitted appellant to probation for five years. The length of the term of probation apparently had not been specified in the plea agreement. When the court announced the probation period, appellant stated: “Yeah, your Honor, I out of the con -- for three felony probation, not five year, this is too much. Five-year --” After further discussion, defendant said: “I want to take my plea back.” His attorney, William Davis, replied: “You don’t get your plea back.” Appellant: “Why not.” Davis: “Go in the room, we’ll talk about it.” There were no further proceedings reported for that date.
In 2006, appellant was before the court for violation of probation. Probation was revoked. Davis, who had represented appellant in the earlier proceedings, informed the court that appellant wanted to withdraw his plea of no contest. The court appointed separate counsel to investigate whether there were grounds either for a motion to withdraw the plea or for the filing of a writ of coram nobis. That attorney, Marc Garcia, reported back to the court that he had interviewed appellant, Davis, and others, and had determined that there was no factual basis to support the contention that appellant did not understand the terms and conditions of the plea entered in 2004. The court discharged Garcia.
At a further hearing on the probation violation, appellant was represented by new counsel, Jeffrey Tenenbaum. Appellant personally asked again to withdraw his plea. The court denied the request on the basis of Garcia’s previous conclusion that there were no grounds for withdrawal. This court reversed the ensuing judgment on the basis that the court failed to exercise its own judgment in considering the motion to withdraw the plea. (See People v. Saechao (Nov. 5, 2007, F051007) [nonpub. opn.].) On remand, the court appointed new counsel, David Capron, for appellant.
On February 5, 2008, appellant filed a petition for writ of coram nobis or motion to withdraw his plea. At the hearing on the petition on March 28, 2008, appellant testified he was not able fully to understand English and that he was partially deaf. At this hearing, he was assisted by a Mien interpreter and had use of an assisted-hearing device. Appellant testified that at his original change of plea hearing he had appeared without an interpreter and without an assisted-hearing device. He testified he had communicated directly with his attorney, Davis, and that Davis had told him he was pleading only to a misdemeanor. He said he initialed and signed the change of plea form, but said the original form disclosed only a misdemeanor plea. Appellant testified he communicated directly with Davis by sitting very close to him and that, although he understood that Davis told him he was pleading to a misdemeanor, he understood “just those few words.”
Davis was called as a witness for the prosecution. Davis testified that during the course of representing appellant he met with appellant “half a dozen” times. He never used an interpreter in speaking with appellant, although he used an interpreter “in speaking with other people that [appellant] had told us we needed to talk to in order to prepare the defense.” Davis said that appellant told Davis about the events that led to the charges against him. Davis testified that, in all of his discussions with appellant, appellant “did not express that he did not understand” Davis’s questions and that appellant’s “responses were appropriate for the questions that were being asked.”
The court took the matter under submission. Subsequently, it issued a 20-page ruling in which it denied the motion to withdraw the plea and the petition for writ of coram nobis. Appellant filed a timely notice of appeal. That notice of appeal was deemed inoperative by the clerk of the superior court after the trial court denied a certificate of probable cause. (See Pen. Code, § 1237.5.) On appellant’s petition for habeas corpus, this court ordered the notice of appeal be deemed operative. (People v. Saechao (Jan. 9, 2009, F055993) [nonpub. opn.].)
Discussion
Denial of a petition for writ of coram nobis is reviewed for abuse of discretion. (People v. Kim (2009) 45 Cal.4th 1078, 1095.) Appellant contends there was insufficient evidence to support the trial court’s factual findings and, therefore, the court’s decision was an abuse of discretion. In particular, he contests the trial court’s conclusion that it found “no indication in the transcript from [the plea hearing] that the defendant either could not hear or that he could not understand the advisements given to him, the nature of the plea, or the plea agreement itself.”
Although respondent contends the petition sought habeas corpus relief and is, as a result, not appealable, the trial court denied the petition on the basis it sought a writ of coram nobis. Accordingly, we will review the matter on the merits.
The trial court did not rely only upon the transcript of the change of plea hearing, although there certainly is every indication in that transcript that appellant understood the proceedings and knowingly entered his no contest pleas and the enhancement admission. The court also considered the change of plea form appellant submitted at the original hearing, as well as the subsequent record in this case. The court also considered the testimony of appellant and Davis at the hearing on the petition for writ of coram nobis. In addition to Davis’s testimony that his interactions with appellant on several occasions in 2004 were all consistent with Davis’s observation that appellant could communicate in and understand the English language, appellant himself testified at the coram nobis hearing that he heard and understood Davis: Appellant testified that Davis told him he would be pleading to a misdemeanor. The trial court was entitled to believe from all the evidence that appellant did adequately hear and understand the proceedings at the time of his original change of plea hearing, but that he testified untruthfully about the substance of his consultations with Davis. Even if we assume the facts asserted by appellant were sufficient to support coram nobis relief (but see People v. Kim, supra, 45 Cal.4th at pp. 1102-1103), the trial court acted well within its discretion in disbelieving appellant’s version of the facts.
Disposition
The order denying appellant’s petition for writ of coram nobis is affirmed.