Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCD127334, Melinda J. Lasater, Judge, and petition for writ of habeas corpus.
IRION, J.
Joseph M. Anderson is serving an indeterminate 25-years-to-life sentence under the "Three Strikes" law for petty theft with a prior (Pen. Code, § 484/666) plus three, one-year enhancements for having served three prior prison terms (§ 667.5, subd. (b)). Anderson appeals the denial of his pro per petition for writ of error coram nobis. He has also filed in this court a pro per petition for writ of habeas corpus, and we have consolidated the appeal and the petition for disposition.
Statutory references are to the Penal Code.
BACKGROUND
On May 28, 1997, a jury convicted Anderson of petty theft with a prior, and, in a separate proceeding, the trial court found Anderson had two prior serious/violent felony or strike convictions (§ 667, subds. (b)-(i)) and had served three prior prison terms (§ 667.5, subd. (b)). The court sentenced Anderson to a term of 25 years to life for petty theft with a prior with two prior strikes and imposed three, one-year enhancements for the prior prison terms.
Anderson filed a direct appeal in this court, and, in a nonpublished opinion, we affirmed the judgment. (People v. Anderson (Jul. 8, 1998, D029662) [nonpub. opn.].)
In the ensuing years, Anderson unsuccessfully sought relief through a petition for writ of habeas corpus filed in federal court, and four petitions for writ of habeas corpus filed in superior court.
On October 21, 2008, Anderson filed his petition for writ of error coram nobis. Anderson's petition for writ of error coram nobis sought to have his sentence recalled, pursuant to section 1170, subdivision (d), on the theory that the sentencing court did not adequately consider his mental and physical conditions he suffered as a result of his military service in the Vietnam War.
In addition to the petition for writ of error coram nobis, Anderson also filed his fourth petition for writ of habeas corpus on October 21. That petition for writ of habeas corpus is not a subject of this proceeding.
Anderson alleged that at the time he committed the petty theft, he had a long-time addiction to heroin and suffered from posttraumatic stress disorder as a result of his military service in the Vietnam War. He submitted medical records from 1996, which included a diagnosis of posttraumatic stress disorder.
Anderson claimed the judge who presided over his trial should have conducted a competency hearing under section 1368. Anderson also claimed that because the judge failed to do so, his sentence must be recalled under sections 1170, subdivision (d) and 1170.9.
In accompanying declarations, Anderson declared that (1) he received help from another prison inmate in preparing the petition; (2) prior to June 2008 he had no knowledge that his trial counsel had given him incorrect advice—namely, that he could not use mental illness as a defense—and therefore had no reason to raise the issue earlier; (3) at the time of his arrest there were federal programs available to treat his mental illness caused by his Vietnam service; and (4) at the time, he was qualified for these programs. Anderson also submitted a declaration by the prison inmate who helped him with the petition. The inmate declared that he informed Anderson in June 2008 that posttraumatic stress disorder is a valid defense and Anderson told him that his trial counsel had said it was not a defense.
Also accompanying the petition for writ of error coram nobis was a two-page portion of the reporter's transcript from the sentencing hearing in which trial counsel argued unsuccessfully that Anderson served with distinction in Vietnam, where he developed a drug problem, and this should be considered as a mitigating factor.
On October 31, 2008, the trial court denied Anderson's petition for writ of error coram nobis, as well as his fourth petition for writ of habeas corpus. (See fn. 2, ante.)
DISCUSSION
At the onset, we note that because the judgment and sentencing Anderson seeks to vacate were affirmed on appeal, the proper forum for Anderson's subsequent petition for writ of error coram nobis was this court, not the trial court. (§ 1265, subd. (a) ["if a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for a writ of error coram nobis shall be brought to procure the vacation of that judgment, except in the court which affirmed the judgment on appeal"]; People v. Haynes (1969) 270 Cal.App.2d 318, 321 ["The general rule is that, once an appeal has been taken from a judgment of conviction, the trial court is without jurisdiction to vacate the judgment"].) Consequently, to place this case in the proper procedural posture, we deem Anderson's appeal from the trial court's ruling to be a petition for a writ of error coram vobis filed in this court in the first instance. (See People v. Brady (1973) 30 Cal.App.3d 81, 83 [appeal from trial court's ruling on writ of error coram nobis properly treated as coram vobis in the appellate court].)
"The writ of coram vobis is essentially identical to the writ of coram nobis except the latter is addressed to the court in which the petitioner was convicted." (In re Imbler (1963) 60 Cal.2d 554, 570.)
This is in accord with a point raised by appointed appellate counsel, who has filed a Wende (People v. Wende (1979) 25 Cal.3d 436) brief.
A writ of coram nobis [vobis] permits a court " ' "to reconsider [the judgment] and give relief from errors of fact." [Citation.]' " (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) " 'The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]' " (Ibid.)
Applying these criteria, we conclude that Anderson's petition for writ of error coram vobis is without merit because he has not met at least two of the three prerequisites for the issuance of the writ.
First, the petition fails because Anderson cannot demonstrate the existence of new factual information that " 'without [Anderson's] fault or negligence, was not presented to the court ' " and " 'which would have prevented the rendition of the judgment.' " (People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) Anderson cannot claim his diagnosis of posttraumatic stress disorder was new information. The only even arguably new information presented in this petition was that Anderson was told by a fellow inmate that (1) posttraumatic distress order is a valid criminal defense, and that (2) his trial counsel gave him incorrect legal advice on the issue. However, this information concerns an error of law—not an error of fact. An error of law is not cognizable in a coram nobis proceeding. (People v. Hyung Joon Kim (2009) 45 Cal.4th 1078, 1093.) "Because the writ of error coram nobis applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, '[t]he remedy does not lie to enable the court to correct errors of law.' [Citation.]" (Ibid.) Assuming the advice Anderson received from his fellow inmate was correct, it related to a mistake of law, not to a mistake of fact.
Moreover, Anderson has not shown why this information " 'would have prevented the rendition of the judgment.' " (People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) Posttraumatic stress disorder would not have been a successful defense at his trial unless it could have been proved that the disorder prevented Anderson from forming the requisite specific intent for petty theft with a prior. (§ 28, subd. (a).) There is no indication in the record that Anderson lacked the specific intent for the offense. Anderson also has not shown that his posttraumatic stress disorder was relevant to his mental competency to stand trial or to the status of his legal sanity. Furthermore, the record shows that trial counsel used Anderson's Vietnam service and resultant drug addiction as factors in mitigation during the sentencing hearing. The fact that the trial court found trial counsel unpersuasive and did not dismiss either or both of Anderson's two strike allegations could very well have been based on Anderson's criminal history, which included "at least six prior felony convictions " and "multiple grants of probation" in which he "had been given many chances to turn his life around and had not taken those opportunities to conform his behavior to California law." (People v. Anderson, supra, D029622, p. 9 of typed opn.)
Although Anderson repeatedly refers to a competency hearing under section 1368, it is not apparent that he understands the difference between competency to stand trial, mental defenses and legal insanity. "A defendant is incompetent to stand trial when he suffers a mental disorder or developmental disability rendering him 'unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.' [Citations.] As a matter of due process, the trial court is required to conduct a section 1368 hearing to determine a defendant's competency whenever substantial evidence of incompetence has been introduced." (People v. Frye (1998) 18 Cal.4th 894, 951-952.) There is no indication that Anderson's mental disorder rendered him unable to understand the nature of the criminal proceedings or to assist his trial counsel.
Second, Anderson's petition fails because he cannot demonstrate that " 'he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petition[ed] for the writ. [Citations.]' " (People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) Although Anderson has established the first prong—that the new information was unknown to him until June 2008—he has not established the second prong—whether, with the exercise of due diligence, he could not have discovered the new information substantially earlier. Anderson was aware of his diagnosis at the time of trial. He filed his petition for writ of error coram nobis more than 11 years after his conviction. This is insufficient to show due diligence to discover the possible use of mental disease as a criminal defense. (See People v. Trantow (1986) 178 Cal.App.3d 842, 847.)
With respect to the appeal, appointed appellate counsel has filed a brief setting forth the background of the case in superior court. Counsel presents no argument for reversal but asks this court to review the record for error, as mandated by People v. Wende, supra, 25 Cal.3d 436. In addition to the suggestion that this appeal be treated as a petition for writ of error coram vobis (see fn. 4, ante), counsel, pursuant to Anders v. California (1967) 386 U.S. 738, refers to as possible but not arguable issues: (1) whether the petition below for writ of error coram nobis [vobis] was meritorious; (2) whether the petition for writ of error coram nobis [vobis] was timely; and (3) whether the petition for writ of error coram nobis [vobis] was successive.
In an order dated April 14, 2009, we granted appellate counsel's unopposed motion and took judicial notice of the superior court file in case No. SCD 127334.
We granted Anderson permission to file a brief on his own behalf. He has responded by filing a petition for writ of habeas corpus, in which he alleges appellate counsel was ineffective for filing a Wende brief.
To establish ineffective assistance of counsel, however, the defendant must show (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) prejudice from counsel's unprofessional errors. (Strickland v. Washington (1984) 466 U.S. 668, 694.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
As discussed above, we have deemed Anderson's appeal from the trial court's ruling to be a petition for a writ of error coram vobis filed in this court in the first instance, and found it lacks merit.
Accordingly, Anderson's claim of ineffective assistance of appellate counsel fails for he has not shown (1) counsel's performance fell below an objective standard of reasonableness, and (2) prejudice.
Appellate counsel has the duty to prepare a legal brief containing citations to the appellate record and appropriate authority. Counsel must set forth all arguable issues and cannot argue the case against his or her client. The fact that appellate counsel followed the procedure set forth in People v. Wende, supra, 25 Cal.3d 436 is insufficient, by itself, to show appellate counsel has been ineffective. A review of the entire record pursuant to People v. Wende, including the possible issues referred to under Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Anderson on appeal.
DISPOSITION
The order is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: NARES, Acting P. J. McINTYRE, J.
Under California law, a defendant is legally insane if at the time of the offense he or she "[is] incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." (§ 25, subd. (b).) A defendant pursues this defense by pleading not guilty by reason of insanity. A defendant is presumed to have been sane at the time he or she committed an offense. (§ 1026, subd. (a); see People v. Jefferson (2004) 119 Cal.App.4th 508, 519.) A defendant may plead not guilty to the substantive charges and join that plea with a plea of not guilty by reason of insanity. (§§ 1016, subds. (2), (6); 1026, subd. (a).) When such pleas are entered, the court conducts a bifurcated trial and the issues of guilt and sanity are separately tried. (People v. Hernandez (2000) 22 Cal.4th 512, 520.) Anderson did not enter a plea of not guilty by reason of insanity, and there is no indication that Anderson's disorder rendered him legally insane. We also note section 25.5 provides the defense of not guilty by reason of insanity "shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances."