Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order the Superior Court of San Diego County Ct. No. SCE249939, Herbert J. Exarhos, Judge. Affirmed.
BENKE, Acting P. J.
Gregory Bechthold pleaded guilty to one count of residential burglary. (Pen. Code, §§ 459/460.) Bechthold appeals an order denying his petition for writ of error coram nobis or writ of habeas corpus in the alternative. Bechthold contends the trial court abused its discretion in denying his petition because the exculpatory evidence and meritorious defense he seeks to introduce were not available to him at the time judgment was rendered, and he was deprived of effective assistance of counsel. We affirm the order.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
On September 21, 2005, Bechthold pleaded guilty to residential burglary committed on April 5, 2005. One year and nine months later Bechthold filed a petition for writ of error coram nobis, in which he argued that new written declarations of Robin Moore, the mother of Bechthold's child and his girlfriend at the time of the crime, contain facts which would have prevented the rendition of judgment had the court been aware of them at the time. In these new declarations, Moore stated she invited Bechthold to enter the house, she was responsible for placing the property in question near the door of the house, and Bechthold had lived in the house for several months before he was told to leave. Bechthold also maintained he was a tenant at will at the time of the crime, but counsel was unaware of this defense at the time of judgment. He contends counsel's failure to inform him of this potentially meritorious defense tainted the legitimacy of his guilty plea. Bechthold also asserted the petition should be treated as an application for habeas corpus relief if the court determined coram nobis was not the appropriate remedy.
The court denied the petition, as either a writ of error coram nobis or habeas corpus. The court found Moore's testimony and the tenancy at will defense were both available at the time of entry of judgment and the petition lacked merit as a petition for either coram nobis or habeas corpus relief.
DISCUSSION
I
Coram Nobis Relief
A petition for a writ of error coram nobis is a nonstatutory motion to vacate the judgment. (People v. Dubon (2001) 90 Cal.App.4th 944, 950; People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) The writ lies to give relief to a petitioner who was denied a fair trial on the merits because of fraud, coercion or excusable mistake. (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The denial of a request for coram nobis relief is reviewed under the abuse of discretion standard. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.)
"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; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.' [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.]" (People v. Shipman (1965) 62 Cal.2d 226, 230 (Shipman).)
A. Moore's Declarations
Bechthold contends Moore's testimony was not available at the time of the plea because she admits to lying in her first declaration, and the facts alleged in her new declarations support coram nobis relief. However, as Bechthold conceded, Moore was available at the time of the plea. Bechthold also acknowledged he chose to take advantage of a plea bargain rather than risk more severe penalties imposed after an unfavorable trial. As noted by the trial court, Bechthold could have proceeded to trial and cross-examined Moore because her testimony was in conflict with his version of the facts. Thus, Bechthold cannot show Moore's admission was not presented without fault or negligence on his part. Even if Bechthold cannot be faulted for presenting Moore's admission, and it had been presented at trial, there was no guarantee the jury would have found Moore's version of the facts was credible. There was no showing Moore's proffered testimony would have prevented rendition of judgment. Further, Bechthold cannot show the "newly discovered evidence" does not go to the merits of issues tried. (People v. Shipman, supra, 62 Cal.2d at p. 230.) " '[I]ssues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.' " (Ibid.) A plea of guilty "is an admission of every element of the offense charged, and constitutes a conclusive admission of defendant's guilt." (People v. Cooper (1954) 123 Cal.App.2d 353, 356.) Bechthold admitted every element of burglary when he pleaded guilty. Those elements are issues of fact which have already been adjudicated by Bechthold's guilty plea and rendition of judgment. Even if the facts in Moore's most recent declarations are true, those issues cannot be reopened by a petition for coram nobis relief.
Finally, Bechthold cannot " '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. . . .' [Citation.]" (People v. Shipman, supra, 62 Cal.2d at p. 230.) To show due diligence, " 'it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence[.]' [Citation.]" (People v. Carty, supra, 110 Cal.App.4th at p. 1528.) Bechthold has failed to show that the facts in Moore's new declaration could not have been discovered any earlier. He notes Moore was a witness for the prosecution at the preliminary hearing and only recently decided to come forth with the truth. However, he has not offered any facts that show the statements in Moore's new declarations could not have been obtained through trial and cross-examination or at any earlier time. The exercise of due diligence is made more questionable by the timing of Bechthold's petition. The trial court noted coram nobis relief was sought only after Bechthold faced a new burglary charge, and this April 2005 burglary charge constitutes a mandatory prison strike. Because Bechthold's petition failed to meet the Shipman criteria for coram nobis relief requested on the grounds of Moore's most recent declarations, the trial court did not abuse its discretion in denying the petition.
Apart from this observation by the trial court, the record does not contain any information about a new burglary charge.
B. Tenancy Defense
Bechthold argues that coram nobis relief is also supported by his counsel's failure to inform him of a potentially meritorious defense. Bechthold claims this tainted the legitimacy of the guilty plea.
"A claim that defendant was deprived of effective representation of counsel is not an appropriate basis for relief by writ of coram nobis and must be raised on appeal or by a petition for habeas corpus instead. [Citation.]." (People v. Gallardo, supra, 77 Cal.App.4th at p. 987.) Moreover, a mistake of law purportedly attributable to defense counsel cannot be remedied by a petition for coram nobis relief. (People v. Ibanez (1999) 76 Cal.App.4th 537, 547.) Bechthold's counsel admits he was aware of the underlying facts before entry of the plea, but he did not realize the availability of the potential defense until filing the coram nobis petition. Counsel's failure to recognize a potential defense at the time of the guilty plea is an error of law that cannot be remedied by a petition for coram nobis relief.
Further, Bechthold's "potentially meritorious defense" argument for coram nobis relief does not meet the Shipman criteria. The failure to proceed to trial and raise the potential defense was the result of fault or negligence. Counsel admitted in a declaration he knew Bechthold had lived with the Moores for several months before being told to leave and committing the burglary, but he had not thought those facts significant at the time of the plea. Bechthold's claim the presentation of this defense would have prevented rendition of judgment is speculative, as Bechthold and his counsel note the defense was "potentially meritorious." (Italics added.) This "newly discovered evidence" that Bechthold may have had the status of a tenant at will at the time of the burglary goes to the merits of the issues of fact tried. By pleading guilty, Bechthold admitted every element of burglary, which constitutes a conclusive admission of his guilt. (See People v. Cooper, supra, 123 Cal.App.2d at p. 356.) This admission is an issue of fact that has already been adjudicated. Even if the issue was adjudicated incorrectly because Bechthold had the status of a tenant at will at the time of the incident, it cannot be reopened except on a motion for new trial.
The fact fault or negligence was attributable to counsel is irrelevant because there is no distinction between error by a petitioner and error by counsel with respect to the unavailability of coram nobis relief. (See People v. Ibanez, supra, 76 Cal.App.4th at p. 547.)
Bechthold has not shown the fact he resided with the Moores for several months and was engaged in a tenancy at will before being told to leave could not have been discovered by him or counsel at any earlier time. Counsel acknowledged he knew Bechthold lived with the Moores for several months before he was told to leave. Counsel believed that fact worthy of further research only before submitting his reply brief to the trial court. Because the facts were known to counsel before Bechthold pleaded guilty and counsel's delay in investigating a potential defense, Bechthold has not shown that he or counsel proceeded with due diligence. (See People v. Carty, supra, 110 Cal.App.4th at p. 1528.) Thus, the "newly discovered evidence" of the potential tenant at will defense fails under Shipman, and the trial court did not abuse its discretion in denying the petition for coram nobis relief.
II
Habeas Corpus Relief
Bechthold argues even if coram nobis relief is not available, habeas corpus relief is appropriate because he was deprived of effective assistance of counsel in deciding whether to enter his plea. The trial court declined to apply a title to the petition, instead finding the petition had no merit to support either remedy. "Because no appeal lies from the denial of a petition for writ of habeas corpus, a prisoner whose petition has been denied by the superior court can obtain review of his claims only by the filing of a new petition in the Court of Appeal." (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) Because the trial court denied the petition as one for either coram nobis or habeas corpus relief, Bechthold may have his ineffective assistance of counsel claim heard only by filing a new petition for writ of habeas corpus in this court.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, J., IRION, J.