Opinion
F085834
12-28-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH FLOREZ, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF030243B-96. Antonio A. Reyes, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1996, Joseph Florez (appellant) pleaded no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and other related charges and allegations. He was sentenced to four years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On January 6, 2023, 27 years later, appellant filed a petition for writ of coram nobis in the trial court, alleging his 1996 plea was invalid because he was not advised of his constitutional rights or the direct consequences of his plea. The trial court denied the petition on the merits.
On appeal from the denial of the writ petition, appellant's appointed counsel filed a brief with this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no error and asking this court to review the record and determine if there are any reasonably arguable issues on appeal. We sent notice to appellant informing him of his right to file a supplemental letter or brief. Appellant submitted a letter contending his plea is invalid because he was not advised that his conviction could be used in the future to increase punishment.
We conclude appellant has not presented new facts that warrant coram nobis relief. Moreover, his claim that he was not properly advised during his plea hearing lacks merit, as it is well settled that future use of a conviction is not a direct consequence of a plea requiring advisement. (People v. Sipe (1995) 36 Cal.App.4th 468, 479; People v. Bernal (1994) 22 Cal.App.4th 1455, 1457.)
We have also conducted an independent review of the record and find that no arguable legal or factual issues exist. We affirm.
BACKGROUND
In 1996, the Tulare County District Attorney's Office filed an information charging appellant with assault with a firearm (§ 245, subd. (a)(2)), a firearm enhancement (§ 12022, subd. (a)(1)), being a felon in possession of a firearm (former § 12021, subd. (a)(1)), and conspiracy to commit assault with a firearm (§§ 182, subd. (a)(1), 245, subd. (a)(2)). The information also alleged appellant suffered a prior conviction within the meaning of section 1170.12, former subdivision (c)(1).
Appellant pleaded no contest to all charges and allegations except the firearm enhancement, which the People agreed to dismiss. Appellant also admitted a probation violation in another matter. The trial court gave an indicated sentence of four years.
Prior to accepting the no contest plea, the trial court advised appellant of his maximum sentence if convicted of all charges. The trial court advised appellant of the direct consequences of his plea, including that he would have to serve 80 percent of his sentence, the plea could result in a violation of probation or parole, that he could face adverse immigration consequences, and that he could be ordered to pay a restitution fine and direct restitution to his victims.
The trial court then asked appellant if he understood he had the right to a jury trial, to present a defense and use the subpoena powers of the court to compel the testimony of witnesses, to confront and cross-examine witnesses, and to remain silent. Appellant acknowledged that he understood and was giving up each of these rights.
The trial court asked appellant if he had any questions regarding the rights he was giving up, the consequences of his plea, the nature of the charges against him, or any other questions. Appellant responded that he did not.
Defense counsel stipulated there was a factual basis for the plea based on the police reports and preliminary hearing transcript.
The trial court found appellant made a knowing and voluntary waiver of his constitutional rights, entered the plea freely and voluntarily, and understood the consequences of entering the plea. It also found there was a factual basis for the plea.
At sentencing, the trial court sentenced appellant to four years in state prison.
In January 2023, appellant filed a "Petition for Writ of Coram Nobis" in the trial court, contending his 1996 plea was invalid because he was not advised of his constitutional rights, the direct consequences of his plea, or the nature of the charges against him, and that the trial court failed to find a factual basis for his plea. The trial court denied the petition without conducting a hearing. In a brief written order, the court stated the plea transcript "notes advisement of rights."
Appellant also alleged that the transcript of his plea was lost or destroyed. However the transcript of his plea and sentencing hearing are part of the record.
This appeal is taken from the denial of the coram nobis petition. (See People v. Allenthorp (1966) 64 Cal.2d 679, 683 [denial of a petition for writ of coram nobis is an appealable order].)
DISCUSSION
I. Appellant is not Entitled to Relief on Coram Nobis Because the Trial Court's Failure to Advise him that his Convictions may be Used to Increase Future Punishment did not Prevent the Rendition of Judgment.
In his supplemental letter, appellant claims his plea was invalid because he was not advised of the full consequences of his plea. Specifically, he states, "The Appellant should have been advised [by the court] of the full direct consequences of his plea, future usage of his plea agreement, that by his plea of no contest he could receive a future life sentence." Presumably, appellant is referring to the possibility of his conviction being used to increase a future sentence under the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d); see § 1192.7, subd. (c)(31) [assault with a firearm is a strike offense].) Based on this purported error, he contends he should be permitted to withdraw his plea.
A writ of coram nobis will only be granted where, inter alia, the petitioner has shown" '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.'" (People v. Shipman (1965) 62 Cal.2d 226, 230.) "[F]acts that have justified issuance of the writ in the past have included a litigant's insanity or minority, that the litigant had never been properly served, and that a defendant's plea was procured through extrinsic fraud or mob violence." (People v. Kim (2009) 45 Cal.4th 1078, 1102.) "Such facts often go to the legal competence of witnesses or litigants, or the jurisdiction of the court." (Id. at p. 1103.)
Appellant does not allege new facts that meet this standard. While not stated explicitly in his trial court petition and supplemental letter, he appears to claim that he would not have pleaded no contest had he known that his conviction could be used to increase a future sentence. But this alleged new fact "speak[s] merely to the legal effect of his guilty plea and thus [is] not grounds for relief on coram nobis." (People v. Kim, supra, 45 Cal.4th at p. 1102.) As our high court explained, "New facts that would merely have affected the willingness of a litigant to enter a plea, or would have encouraged or convinced him or her to make different strategic choices or seek a different disposition, are not facts that would have prevented rendition of the judgment." (Id. at p. 1103.) Thus, appellant is not entitled to coram nobis relief, because his allegations do not establish "a basic flaw that would have prevented rendition of judgment." (Ibid.)
II. Appellant's Underlying Claim Lacks Merit Because a Trial Court is not Required to Advise a Defendant that a Criminal Conviction Could be Used to Increase Future Punishment.
Even if appellant's claims were not limited by the narrow scope of coram nobis, we would still conclude his claim that the trial court failed to advise him of the direct consequences of his plea lacks merit. "When entering a guilty plea, the defendant must be advised of the direct consequences of the conviction. [Citation.] However, possible future use of a current conviction is not a direct consequence of the conviction." (People v. Bernal, supra, 22 Cal.App.4th at p. 1457; see People v. Crosby (1992) 3 Cal.App.4th 1352, 1355; People v. Sipe, supra, 36 Cal.App.4th at p. 479 ["Future use of a current conviction is not a direct consequence of that conviction, so no such advisement is necessary."].) This includes the possible future use of a strike conviction, which does not have effect "unless and until the defendant commits a new felony." (People v. Sipe, supra, 36 Cal.App.4th at p. 479.) Accordingly, the trial court did not err in failing to advise appellant that his convictions could be used in the future to increase punishment, under the Three Strikes law or otherwise.
III. Wende Review
In addition to considering the claim appellant raises in his supplemental letter, we have conducted an independent review of the record. We find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P. J., Detjen, J. and Smith, J.