Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SC44225, F45877
CANTIL-SAKAUYE, J.
In 2001, defendant Amos Junior Scott stood convicted of a federal drug offense, and based in part on his prior convictions in California, was sentenced to life in federal prison. He filed a petition for writ of error coram nobis in the trial court to invalidate one of his state prison sentences in the hopes of changing his federal sentence.
On appeal, defendant contends (1) he established a prima facie case for coram nobis relief, because the prosecutor in the drug case breached his promise and the plea bargain by revoking his probation in the assault case, and (2) his trial counsel in the drug case rendered ineffective assistance by failing to object to revocation of probation in the assault case. According to defendant, invalidation of the prison sentence in either the assault case or the drug case would furnish grounds to challenge his federal status as a “career offender” and his imprisonment for life. We shall affirm the judgment.
FACTS
In June 1987, defendant Amos Junior Scott was convicted of assault with a deadly weapon or by force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1); case No. SC39348; hereafter the assault case.) He was placed on probation for five years.
While on probation in March 1989, defendant pled no contest to possession of a controlled substance for sale. (Health & Saf. Code, § 11351; case No. SC44225; hereafter the drug case.) In April 1989, he was sentenced to state prison for the low term of two years. On the same date, probation in the assault case was revoked and a previously imposed four-year suspended sentence was reduced to a concurrent term of two years.
In August 2001, in the United States District Court for the Western District of North Carolina, defendant was convicted of conspiracy to possess with intent to distribute cocaine. (Case No. 1:00-CR-00069-5; hereafter the federal case.) Based on his prior convictions in the assault case and the drug case, he was deemed a “career offender” and was sentenced to federal prison for life.
In August 2004, defendant filed a petition for writ of error coram nobis in the trial court seeking to vacate his plea in the drug case. The court denied the petition in October 2004. The next month, defendant filed a notice of appeal. In December 2004, he filed a motion for reconsideration, which was denied. Due to clerical error, the trial court did not process the notice of appeal until July 2006.
According to a 2001 presentence investigation report in the federal case, defendant was arrested on October 25, 1986, for assault with a deadly weapon or force likely to produce great bodily injury. According to a declaration submitted by a police officer in connection with a bail hearing, defendant was again arrested on December 14, 1988, for possession of rock cocaine for sale after he and five others were found at a Stockton apartment with 20 grams of rock cocaine, two firearms, scales, a beeper, and $1,275. The presentence report in the federal case indicates that the offense therein, plus the two prior offenses, qualify defendant as a “career offender” within the meaning of the federal sentencing guidelines.
Neither party contends United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621] is relevant to our disposition of this case. Booker was expressly made applicable to “all cases on direct review,” which this case is not. (Id. at p. 268.)
DISCUSSION
I.
Defendant contends he established a prima facie case for coram nobis relief because the prosecutor in the drug case breached his promise and the plea bargain by revoking his probation in the assault case. The Attorney General counters that the plea bargain barred only the prosecutor, and not the probation department, from petitioning to revoke probation. Because the revocation occurred upon petition by probation, rather than by the prosecutor, the plea agreement was not breached and defendant is not entitled to coram nobis relief. The Attorney General has the better argument.
Background
On page four of the transcript of the entry of plea hearing in the drug case, the prosecutor described the parties’ agreement as “just a negotiated disposition for the amount of time here.” Then, on page six of the transcript, the trial court explained to defendant that any time imposed, because the drug case constituted a violation of probation in the assault case, would be imposed concurrently to the two-year term on the drug case. Defense counsel then asked, “Could I have a moment with you?” After a pause, defense counsel stated to the prosecutor, “There will be no violation filed with that, that’s correct, Mr. [Prosecutor]?” The prosecutor agreed.
The present record contains pages one, two, four, six and eleven of the transcript of the plea hearing in the drug case. Pages four and six appear in the clerk’s transcript in reverse order.
The record is unclear as to whom defense counsel was referring to as “you.”
The trial court then stated to defendant, “I guess we can’t find the probation people, but if they were to file something like that, okay, in a nutshell, Mr. Scott, any time you receive for a violation of probation -- let me rephrase that. [¶] Any time you receive on this case, the two years would run along concurrent[ly] with any time you could receive on a violation of probation. [¶] Do you understand that?” Defendant answered, “Yes.”
At the sentencing hearing in the drug case, defendant was represented by separate counsels on the assault case and the drug case. The People were represented by a deputy district attorney other than the one who had handled the plea hearing. Defense counsel on the assault case stated that a “reading of the transcript on that plea seems to contemplate a two year [concurrent term] on the [probation] violation.” The prosecutor agreed and stated that he “must express to the court [his] disappointment in the fact it was handled that way downstairs. But apparently that is what the transcript says, so we are stuck with it.”
Defendant was sentenced to the low term of two years in the drug case. Probation in the assault case was revoked, and a previously imposed four-year suspended sentence was reduced to a two-year concurrent term.
Defendant’s August 2004 petition for writ of error coram nobis sought to vacate his conviction in the drug case because (1) the prosecutor allegedly reneged on his plea bargain commitment not to file a probation violation in the assault case and (2) his trial counsel was ineffective for having allowed it.
In October 2004, the trial court summarily denied the petition based on defendant’s failure to make a prima facie case for relief and his failure to show prejudice due to the probation revocation.
Analysis
A petition for a writ of error coram nobis is a nonstatutory motion to vacate a judgment. (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The writ of error coram nobis generally lies to give relief where the petitioner, through fraud, coercion, or excusable mistake, was deprived of a fair trial on the merits. (Ibid.) “‘The writ of coram nobis is granted only when three requirements are met. (1) Petitioner must “show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.” [Citations.] (2) Petitioner must also show that the “newly discovered evidence . . . [does not go] to the merits of issues tried; . . .” [Citations.] . . . (3) Petitioner “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. . . .” [Citations.]’” (Id. at p. 1523, fn. 4, quoting People v. Shipman (1965) 62 Cal.2d 226, 230.) Denial of a petition for writ of error coram nobis is reviewed under the abuse of discretion standard. (People v. Ibanez (1999) 76 Cal.App.4th 537, 549.)
Defendant contends he established a prima facie case for coram nobis relief based on the “fact” that the prosecutor breached the plea bargain. He first reasons that “the plea bargain entailed only the imposition of a sentence in [the drug case];” thus, imposition of sentence in the assault case exceeded the scope of the bargain. He next reasons that the prosecutor either revoked probation in the assault case or “sought to and thereafter participated in revoking” his probation. We consider these points in turn.
As noted, the prosecutor’s description of the parties’ agreement as “just a negotiated disposition for the amount of time here” occurred near the outset of the plea hearing. The trial court’s admonition that defendant could receive concurrent time for his violation of probation in the assault case followed the prosecutor’s comment. Defendant’s indication that he understood the court’s comment arguably broadened the scope of the agreement as initially outlined by the prosecutor.
Defendant’s appellate argument that “the plea bargain entailed only the imposition of a sentence in [the drug case]” is based on his reading of the two statements in reverse order, as they now appear in the clerk’s transcript rather than as they originally appeared in the transcript of the plea hearing. (See fn. 2, ante.) Contrary to that argument, the prosecutor’s remark, “It’s just a negotiated disposition for the amount of time here,” was not made “[i]n response to the court’s further inquiry whether anyone had made any promises to [defendant] to make him enter his plea,” and does not “signif[y] that the plea bargain entailed only the imposition of a sentence in [the drug case].”
When the prosecutor’s comment is read as prefatory to the trial court’s comments, the scope of the plea agreement becomes clear. The trial court stated to defendant, “I guess we can’t find the probation people, but if they were to file something like that, okay, in a nutshell, Mr. Scott, any time you receive for a violation of probation -- let me rephrase it. [¶] Any time you receive on this case, the two years would run along concurrent[ly] with any time you could receive on a violation of probation. [¶] Do you understand that?” Defendant answered, “Yes.”
The trial court’s admonition made plain that, even if the prosecutor agreed not to file a revocation petition, the “probation people” who were not present in court or parties to the prosecutor’s agreement with defendant could file “something like” a revocation petition; if they did so, the two years in the drug case would “run along concurrent[ly] with” the time defendant could receive for violation of probation in the assault case.
In his opening brief, defendant claims the prosecutor, as opposed to probation, revoked his probation in the assault case. In response, the Attorney General correctly notes that the record reflects a report of probation violation filed by the probation department, but no such filing by the prosecution. In his reply brief, defendant argues, “Regardless who initiated probation revocation [citation], the prosecutor in fact sought to and thereafter participated in revoking” his probation. Defendant’s reply argument is not supported by a citation to the appellate record and requires no further discussion. (Cal. Rules of Court, rule 8.204(a)(1)(C); Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141; see People v. Scott (1998) 64 Cal.App.4th 550, 564.) In any event, the only “participation” shown on this record is the prosecutor’s expression of disappointment and concession that he was “stuck with” the plea bargain.
Thus, defendant has not shown either a promise that no entity would seek revocation of probation in the assault case, or a breach by the prosecutor of his own promise not to do so. There was no new fact that would have prevented the rendition of judgment; and no new fact that defendant, in the exercise of due diligence, could not have discovered at a substantially earlier time. (People v. Carty, supra, 110 Cal.App.4th at p. 1523, fn. 4; People v. Ibanez, supra, 76 Cal.App.4th at p. 544.) The petition for writ of error coram nobis was properly denied because the record shows that defendant was accurately informed of the consequences of his plea. (People v. Chaklader (1994) 24 Cal.App.4th 407, 412-413.)
II.
Defendant contends his trial counsel in the drug case rendered ineffective assistance by failing to object to probation revocation in the assault case. In defendant’s view, his trial counsel “was aware of the prosecutor’s promise not to revoke probation in [the assault case],” and thus “should have objected to revocation of probation in [the assault case] before, during, or after [defendant] was sentenced in [the drug case]. There was no conceivable tactical or strategic reason for counsel to refrain from raising the plea-[bargain] breach issue after it became apparent that the prosecutor was not going to abide by his pre-plea promise not to revoke probation in [the assault case].”
The Attorney General counters that a claim of ineffective assistance of counsel is not cognizable in a coram nobis petition and must be raised in a direct appeal or a habeas corpus petition. (Citing, e.g., People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) This rule appears to be a specific application of the more general rule that the purpose of coram nobis is “to secure relief, where no other remedy exists.” (People v. Adamson (1949) 34 Cal.2d 320, 326, cited in Soriano, supra, at p. 1477, italics added.)
Defendant replies that the remedy of direct appeal did not exist for him because the time to appeal in the assault case and the drug case had “long ago expired.” His coram nobis petition alleges that he did not realize the plea bargain had been breached until the federal court used both state convictions for sentence enhancement purposes.
Defendant further replies that the habeas corpus remedy did not exist for him because he was not in actual or constructive state custody based upon his 1989 conviction in the drug case; thus he failed to satisfy the habeas corpus jurisdictional requirements under California law. (§ 1473, subd. (a); In re Azurin (2001) 87 Cal.App.4th 20, 25; see Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 796.) We shall assume for present purposes that defendant’s replies are correct.
The Attorney General alternatively claims the ineffective assistance contention fails on its merits. We agree.
“‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” [Citation.]’” (People v. Avena (1996) 13 Cal.4th 394, 418, fn. omitted.)
The premise of defendant’s claim of deficient performance is that revocation of probation in the assault case breached the plea bargain. For the reasons stated in part I, ante, that premise is incorrect. Because the bargain was not breached, an objection claiming breach would have lacked merit. Trial counsel was not ineffective for having failed to make a meritless objection. (People v. Stratton (1988) 205 Cal.App.3d 87, 97.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., MORRISON, J.