Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA1000961. Ingrid Adamson Uhler and Phillip M. Morris, Judges.
Judge Morris is a retired judge of the former Municipal Court of San Bernardino County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
Defendant and appellant Daniel Curtis Tate was charged with one count of second degree commercial burglary. (Pen. Code, § 459, count 1.) It was also alleged that he had served two prior prison terms. (§ 667.5, subd. (b).) Pursuant to a plea agreement, defendant pled no contest to count 1. The trial court sentenced him to the midterm of two years in state prison, as agreed upon. Approximately two weeks after being sentenced, defendant orally moved to withdraw his plea. The trial court denied the motion as untimely. Defendant filed a notice of appeal. He also filed a request for certificate of probable cause, which the trial court granted.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant argues that the trial court erred in failing to consider his motion to withdraw his plea as a petition for writ of error coram nobis and in failing to hold a hearing on the petition. We affirm the judgment as modified.
FACTUAL BACKGROUND
On May 10, 2010, a suspect broke into a law office by smashing a window. He took several items, including a computer. He also poured a liquid substance on another computer and printer. The police lifted fingerprints from inside the broken window. The fingerprints matched defendant’s fingerprints.
ANALYSIS
I. The Trial Court Properly Denied Defendant’s Motion to Withdraw
Defendant contends that the trial court erred in summarily denying his oral motion to withdraw his no contest plea. Acknowledging that the motion was untimely, he claims that the trial court should have treated it as a petition for writ of error coram nobis and held a hearing on his claim. We find no error.
At the outset of his opening brief, defendant argues extensively that, although his plea agreement included a waiver of his appellate rights, he did not waive his right to appeal. The People agree that the waiver does not apply because the motion to withdraw the plea occurred after the waiver of appellate rights. Assuming defendant did not waive his right to appeal and, in light of the trial court’s granting of defendant’s request for a certificate of probable cause, we will address the merits of his appeal. (§ 1237.5.)
A. Background
A change of plea hearing was held on July 21, 2010. The trial court reviewed the plea form with defendant and asked him whether he had placed his initials on the plea form, read the plea form, and understood the form. Defendant replied in the affirmative. The trial court explained defendant’s constitutional rights and asked him whether he understood those rights. Defendant answered in the affirmative. The trial court went over the agreement with defendant indicating that he would get the midterm of two years in state prison, and that he would be sentenced immediately. Defendant pled no contest to second degree commercial burglary. The trial court sentenced defendant that day.
On August 2, 2010, a hearing was held at the request of defense counsel. Counsel informed the trial court that the day after defendant was sentenced, defendant called counsel and said he wanted to withdraw his plea. So, counsel calendared the motion. The trial court responded that it did not think the motion was timely since defendant had already been sentenced and because a motion to withdraw must be filed prior to sentencing. Defense counsel replied that defendant had 180 days from the plea to move for withdrawal. The trial court corrected counsel and said the 180-day period applied only when a defendant is put on probation. The trial court confirmed what it said by reading the relevant portion of section 1018 out loud. After reading the statute, the trial court said, “So it has to be done before judgment is imposed, so your request will be denied.” The trial court reiterated that the request was denied as untimely, pursuant to section 1018. Defense counsel asked the trial court to trail the matter until the next day, stating that he thought there was another Penal Code section he could ask the trial court to consider. He intended to research a statute to recall a state prison sentence. The trial court trailed the matter to the following morning and added, “In regards to recall of sentencing, that would be, obviously, just for a different type of sentencing. It’s not to withdraw the plea.” Defense counsel agreed, stating that he just wanted to “take a look at everything before [defendant] goes off.” The trial court addressed defendant directly, stating that it was denying his request to withdraw his plea as untimely and explained that defense counsel was going to look at other options to try and help him. The record indicates that the parties appeared in court the next day, but the trial court took no action and then, on its own motion, it took the matter off calendar.
B. The Trial Court Properly Denied Defendant’s Motion
Section 1018 provides, in pertinent part: “On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”
Section 1018 allows a court to permit a defendant to withdraw his plea, only if the motion to do so is made before judgment. (See People v. Grgurevich (1957) 153 Cal.App.2d 806, 810.) In other words, the trial court is without jurisdiction to entertain a motion to withdraw a guilty plea after judgment has been entered. (People v. Wade (1959) 53 Cal.2d 322, 339, overruled on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381.) The proper procedure is to file a petition for writ of error coram nobis. (People v. Lockridge (1965) 233 Cal.App.2d 743, 745.) “A coram nobis motion is to bring to the attention of the trial court errors of fact which, without negligence on the part of the defendant, were not presented to the court at the trial.” (People v. Tucker (1957) 154 Cal.App.2d 359, 361.) “The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]” (People v. Sharp (1958) 157 Cal.App.2d 205, 207.)
Defendant argues that his postjudgment motion to withdraw his plea “was a legal equivalent of a petition for writ of error coram nobis, subject to the requirements of that writ, ” and that the trial court should have “treated it as a proceeding of that nature instead of denying it summarily as an untimely post-judgment motion to withdraw.” Defendant’s claim is meritless. To be granted relief by way of petition for writ of error coram nobis, a defendant must meet three requirements: He must show (1) that some fact existed which, without any fault or negligence on his part, was not presented to the trial court at the trial on the merits, and that would have prevented the rendition of the judgment; (2) that the newly discovered evidence does not go to the merits of issues tried; and (3) 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 petition for writ. (People v. Shipman (1965) 62 Cal.2d 226, 230 (Shipman).) “In view of these strict requirements, 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.” (Ibid.) A defendant must establish a prima facie case in order to be entitled to a hearing. (People v. Lampkin (1968) 259 Cal.App.2d 673, 675.)
Assuming arguendo that the trial court should have treated defendant’s motion as a petition for writ of error coram nobis, the trial court properly denied the motion summarily. There was no written motion filed. At the August 2, 2010, hearing, defense counsel simply stated that defendant wished to withdraw his plea, but gave no grounds for the request. Defendant plainly failed to state a prima facie case for coram nobis relief. On appeal, he asserts that his declaration made in support of his request for a certificate of probable cause, “combined with a review of the transcript of the change of plea hearing stated a prima facie case for relief.” In the declaration, defense counsel asserted, “Client states that he did not knowingly and intelligently enter the plea of guilty on July 21, 2010. Client states that he only plead guilty because he thought he would get a 4 year state prison sentence if he did not accept the 2 year offer.” This declaration was filed on August 4, 2010, which was two days after the trial court denied defendant’s motion to withdraw his plea as untimely. We cannot reverse the trial court’s denial of the motion based on allegations that were not brought to its attention at the time it ruled on defendant’s motion. (See In re Collins (1969) 271 Cal.App.2d 195, 199.) In any event, the allegations in the declaration do not involve facts or evidence and do not meet the strict requirements for coram nobis relief. (Shipman, supra, 62 Cal.2d at p. 230.) The trial court properly denied the motion summarily. (Ibid.)
II. The Prior Prison Term Allegations Should Be Dismissed
Although not raised as an issue by the parties, we note that the plea agreement did not mention the dismissal of the two section 667.5, subdivision (b), allegations, and neither the trial court nor the parties mentioned these allegations at the sentencing hearing. This court, on its own motion, directed the parties to file supplemental briefs to address whether the prior prison term allegations should be dismissed. In response, both parties filed letter briefs that essentially agreed that the record supports an implied finding that the parties intended the prison priors to be dismissed as part of the plea agreement. We agree.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.) The goal of contractual interpretation is to give effect to the mutual intention of the parties. (Ibid.) “‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.’” (Ibid.)
Here, paragraph 3 of the plea agreement, in which defendant stated he desired to plead no contest to count 1, did not state that he wanted to admit the section 667.5, subdivision (b), enhancement allegations. Similarly, the plea agreement did not mention that two 1-year enhancements should be imposed on the term for count 1. Moreover, there was no reference by the parties or the trial court to the two prison priors at the change of plea hearing/sentencing hearing. Finally, defendant was sentenced to the two-year midterm on count 1, as agreed under the plea bargain. His sentence was not enhanced by any prison priors. Thus, the record supports an implied finding that the parties intended the section 667.5, subdivision (b), enhancements to be dismissed. It appears to have been an inadvertent clerical error that the enhancements were not dismissed.
Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid.) A court “has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.]” (In re Candelario (1970) 3 Cal.3d 702, 705.) Accordingly, we will modify the judgment to dismiss the two section 667.5 subdivision (b), enhancement allegations. We will also direct the superior court clerk to generate a new minute order reflecting the dismissal.
DISPOSITION
The judgment is modified to dismiss the two section 667.5, subdivision (b), enhancements. The superior court clerk is directed to generate a new minute order reflecting the dismissal. The clerk is further directed to forward a copy of the new minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: KING J., MILLER J.