Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. GA020300 Carol Williams Elswick, Judge.
Law Offices of Jilbert Tahmazian and Jilbert Tahmazian for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Mihran Bederian appeals from the trial court’s denial of his petition for writ of error coram nobis and nonstatutory motion to vacate the judgment. Because the petition/motion fails to state a prima facie case for relief, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
1. Bederian’s Plea Hearing
On June 9, 1994 a gas station attendant identified Bederian as one of the men who had robbed him that night. After a high-speed chase Bederian was arrested; he was subsequently charged by felony complaint with robbery (Pen. Code, § 211) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The complaint also specially alleged the robbery was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(19). On June 22, 1994, pursuant to a negotiated agreement, Bederian entered a plea of no contest to the robbery charge. According to the terms of the agreement, imposition of sentence would be suspended; and Bederian would be placed on three years’ probation with credit for time served in county jail. In exchange, the prosecution agreed to dismiss the charge of unlawfully driving or taking a vehicle.
Bederian was assisted at the plea hearing by Deputy Public Defender Douglas Boyd. At the time he entered his plea, Bederian was advised of his constitutional rights to a preliminary hearing and a jury trial, as well as the nature and consequences of his plea. As to the robbery charge, the prosecutor informed Bederian, “This [offense] is a serious felony which means if in the future you are convicted of another felony this case can be used to increase your future sentence.” However, Bederian was never specifically asked to admit, nor did he admit, the serious felony allegation.
The trial court found Bederian’s plea was knowingly, intelligently and voluntarily entered, and there was a factual basis for the plea. Deputy Public Defender Boyd joined in the plea and stipulated to a factual basis.
2. Subsequent Proceedings
The sentencing hearing was conducted on July 13, 1994. Pursuant to the plea agreement, the trial court suspended imposition of sentence and placed Bederian on three years’ formal probation with specified terms and conditions, including that he serve 365 days in county jail, with credit for time served. The charge of unlawfully taking an automobile was dismissed on the People’s motion. Three years later, on July 11, 1997, Bederian’s probation was terminated.
Bederian did not appeal from the judgment.
3. Bederian’s Request for Relief from His Plea Agreement
On July 10, 2007, 10 years after termination of his probation, Bederian filed a petition for writ of error coram nobis and motion to vacate and withdraw plea, contending his plea was unlawful because he had not been advised of the nature of the offense and the consequences of the plea; he did not separately admit the commission of a serious felony; and there was an insufficient factual basis for the plea.
Bederian was represented by Jilbert Tahmazian, who is also his counsel on appeal, at the July 25, 2007 hearing on the petition/motion. The judge was the same bench officer who had presided at the plea hearing. The court read and considered the contents of the superior court file, including the transcript of the plea hearing, and heard argument from attorney Tahmazian. At the conclusion of the hearing the court denied the petition/motion.
Bederian filed a notice of appeal; his request for a certificate of probable cause was granted.
DISCUSSION
A petition for a writ of error coram nobis, the equivalent of 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), lies to give relief to a petitioner who through fraud, coercion or excusable mistake was deprived of a fair trial on the merits. (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The denial of a defendant’s request for coram nobis relief is reviewed for an abuse of discretion. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) However, denial of a petition for writ of error coram nobis is not appealable unless the petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [“[i]n an appeal from a trial court’s denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal”]; see Dubon, at p. 950; Gallardo, at p. 982.)
“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.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [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. . . .’” (People v. Shipman (1965) 62 Cal.2d 226, 230.)
At the threshold, Bederian failed to establish a prima facie case for coram nobis relief by demonstrating he exercised due diligence in moving to set aside the 1994 judgment. Bederian presented no explanation, either in his declaration filed with his memorandum of points and authorities in support of his request for relief or at the hearing itself, for his 13-year delay in seeking to set aside the judgment. (See People v. Shipman, supra, 62 Cal.2d at p. 230 [writ of error coram nobis will not issue unless petitioner establishes he or she did not know and could not have discovered with due diligence the facts he or she relies on earlier than the time of the petition]; In re Watkins (1966) 64 Cal.2d 866, 870-872 [three-year delay precluded coram nobis relief]; see also People v. Shorts (1948) 32 Cal.2d 502, 513 [timeliness of presentation of facts supporting coram nobis petition must be pleaded with particularity].) For this reason alone, the trial court’s refusal to grant Bederian coram nobis relief is nonappealable. (People v. Gallardo, supra, 77 Cal.App.4th at pp. 982-983.)
In addition, Bederian failed to raise any claims properly cognizable in a petition for writ of error coram nobis. A coram nobis petition cannot be used to raise issues of proof regarding Bederian’s commission of robbery. (See People v. Tapia (1964) 231 Cal.App.2d 320, 324 [“[t]he appellant, by his plea of guilty, has admitted all the elements of the offense and cannot attack any failure of proof of the corpus delicti at this time”]; People v. Dale (1947) 79 Cal.App.2d 370, 379 [“‘plea of guilty includes an admission of every element entering into the offense charged and does not raise any issue of fact’”].)
Nor can Bederian rely on a petition for coram nobis relief to have his judgment of conviction vacated by attacking various incidents of the plea itself, such as the claim he was improperly advised of the consequences of entering his plea or the constitutional rights he lost thereby, particularly when, as here, he was represented by counsel. (See People v. Banks (1959) 53 Cal.2d 370, 377-378 [coram nobis unavailable when defendant voluntarily and with knowledge of the facts enters a plea because of ignorance or mistake as to the legal consequences of plea]), and the trial court expressly found Bederian’s plea and accompanying waivers were knowing and intelligent (see People v. Rodriguez (1956) 143 Cal.App.2d 506, 507 [coram nobis unavailable to challenge trial court’s finding guilty plea was intelligently made]).)
Finally, a petition for writ of error coram nobis does not issue to correct purported errors of law. (People v. Reid (1924) 195 Cal. 249, 258, overruled on other grounds in People v. Hutchinson (1969) 71 Cal.2d 342, 347-348; accord, People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) That Bederian was unaware his conviction could constitute a serious felony or prior strike conviction in a future criminal proceeding is not a mistake of fact but one of law. (See McElwee, at p. 1352 [defendant’s belief he would be paroled after serving 15 years in state prison was a mistake of law not fact].)
Bederian has failed to present a complete record. Although he asserted in his declaration he only became aware his robbery offense was a serious felony conviction under the “Three Strikes” law “when a subsequent court doubled my sentence,” nowhere in Bederian’s petition/motion does he allege when he was charged, convicted or sentenced in the new case.
Although Penal Code section 969f states, “If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant[,]” a defendant’s failure to admit such an allegation does not preclude the People from later alleging the conviction constitutes a serious felony when, as here, the plea bargain did not include an agreement to dismiss the serious felony allegation. (People v. Leslie (1996) 47 Cal.App.4th 198, 203-205.) Accordingly, Bederian’s claim lacks merit in any event.
Because the claims Bederian asserts are not properly raised by a petition for writ of error coram nobis or a nonstatutory motion to vacate the judgment, the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur: WOODS, J. ZELON, J.