Opinion
G037253
5-16-2007
THE PEOPLE, Plaintiff and Respondent, v. ALBERT FRANCISCO BRICENO Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
In March 1997, defendant Albert Francisco Briceno pled guilty to, and was convicted of, felony discharging a firearm at an occupied vehicle (Pen. Code, § 246) while armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). The imposition of sentence was suspended and defendant was placed on three years formal probation on the condition that he serve 365 days in jail. He was given credit for 210 days served and 105 days good work time. (People v. Briceno (Super. Ct. Orange County, 1997, No. 96WF1735).)
Thereafter, in November 1997, defendant pled guilty to, and was convicted of, felony possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)) and carrying a concealed firearm while an active gang participant (Pen. Code, § 12025, subd. (b)(3)). Defendant admitted that these offenses were committed for the benefit of, or in association with, a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). Defendants prior probation was revoked, and in January 1998, he was sentenced to two years in state prison. (People v. Briceno (Super. Ct. Orange County, 1998, No. 97CF3057).) Defendant did not file an appeal.
In April 2006, defendant, representing himself, filed a petition for a writ of error coram nobis, in which he purported to withdraw his pleas in each of the two actions, and sought the vacation of each judgment and sentence. The court denied the motion. Defendant filed a notice of appeal from the order denying his petition.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendants behalf. We examine the entire record ourselves to see if any arguable issue is present. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was informed that he could submit written concerns or argument and was given at least 30 days to do so. That period has passed, and we have received no communication from defendant.
However, we review his arguments as set forth in his petition for a writ of error coram nobis. At the outset we note that: "`A writ of coram nobis is generally used to bring factual errors or omissions to the courts attention. [Citation.] "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.]" [Citations.] [Citations.] We review a trial courts denial of a petition for writ of error coram nobis for abuse of discretion. [Citation.]" (People v. Dubon (2001) 90 Cal.App.4th 944, 950-951.)
As we shall show, the court did not abuse its discretion in denying defendants petition. Defendant did not show either that he had discovered a new fact that had not been presented to the trial court before entry of judgment or that he had been diligent in raising his points to the trial court. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352-1353; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617-1619.) As we shall further show, most of defendants issues are issues of law or bald assertions of constitutional violations, neither of which are cognizable in coram nobis. (People v. Villa (2007) 148 Cal.App.4th 473, 479-480; People v. Ibanez (1999) 76 Cal.App.4th 537, 545, 549.)
First, defendant alleged in his petition that his plea agreement in the first action was obtained through fraud, misrepresentation, duress, menace, undue influence or mistake. He asserted that the public defender had misrepresented certain matters in connection with the plea agreement. He further asserted that he had not received the benefit of the bargain with respect to that plea agreement and that the court had "obviated [his] de jure probation hearing in the [sentencing] court" in violation of due process of law.
It is true that "[t]he writ of error coram nobis is an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion. [Citations.]" (People v. Chaklader (1994) 24 Cal.App.4th 407, 409.) However, defendants claims that his attorney committed fraud against him or subjected him to duress, or that his plea was entered as a result of mistake concerning the effect of the plea, "need not be accepted at face value. Appellants must have convincing proof of fraud[, mistake or coercion] and there is a strong presumption in favor of the trial court. [Citation.] Also, the judge need not accept as true any statements in the affidavits." (People v. Maston (1965) 238 Cal.App.2d 877, 882.)
Here, defendants allegations with respect to fraud, misrepresentation, duress, menace, undue influence or mistake were unsupported by evidence. His affidavit offered certain legal conclusions and provided little in the way of declarations of fact. Moreover, in his plea agreement, defendant recited: "I offer my plea of `Guilty freely and voluntarily and with full understanding of all the matters set forth in the pleading and in this form. No one has made any threats, used any force against myself, family or loved ones, or made any promises to me except as set out in this form, in order to convince me to plead guilty." In his petition, defendant offered no explanation as to why he made this declaration if it were untrue. Furthermore, defendant has not provided us with a reporters transcript, so we do not know what was said in court with respect to the guilty plea. Finally, his arguments with respect to errors of law and constitutional error simply do not entitle him to relief under a writ of error coram nobis. (People v. Villa, supra, 148 Cal.App.4th at pp. 479-480; People v. Ibanez, supra, 76 Cal.App.4th at pp. 545, 549.)
With respect to the second action, defendant alleged that the public defender "cajoled" him into waiving his right to trial, "for the sole benefit of the prosecutor and his own pecuniary gain," and that the plea bargain was void because of malfeasance and fraud. In addition, he asserted that the second action was "illegally derived" from the plea bargain in the first action. He further asserted that the prosecutor had brought a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) on his behalf, which had been granted. He implied that he did not get the benefit of the order on the motion.
The arguments with respect to the second action were no more availing than the arguments with respect to the first. Defendant offered no evidence with respect to the purported fraud, malfeasance or duress other than one bald assertion in his affidavit that he "was cajoled into entering a plea in case number 97CF3057 by and through the doctrine of misguided hand of counsel to secure counsels [own personal] ends for pecuniary gain . . . ." In his affidavit, defendant provided no specific information whatsoever concerning the purported cajolement or misdeeds, or what new facts he discovered to demonstrate the existence of the same. Furthermore, in his plea agreement entered in the second action, he made the same declaration as he had in his plea agreement entered in the first action, to the effect that he made his plea freely and without threat.
With respect to the Romero motion, the minute order imposing sentence in the second action stated: "Peoples motion to dismiss [Penal Code section] 667(d)(e)(1) — 1170.12(b)(c)(1) . . . is granted. So ordered." Defendant did not explain either how it was that he did not obtain the benefit of this order or how the second action was "illegally derived" from the plea bargain in the first action.
In his petition, defendant alluded to a third action. He said that in "case no. #AN00NF3394, at a [subsequent] preliminary hearing examination which took place on" March 5, 2001, the second action was "illegally TRANSMOGRIFIED." Defendant did not explain what he meant by saying that a transmogrification occurred, other than to indicate that an ex post facto impairment of contract resulted — presumably meaning an impairment of the plea bargain in the second action. Due to defendants lack of clarity, we are unable to follow his argument. Moreover, he has provided us with no information at all in the record concerning a case No. AN00NF3394. The court cannot pass upon matters that are not reflected in the record. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1.) Consequently, the trial court was correct in affording no relief based on defendants bald assertion unsupported by the record. Furthermore, where the separate allegation of impairment of contract is concerned, once again, a writ of error coram nobis does not provide relief for purported legal errors. (People v. Villa, supra, 148 Cal.App.4th at pp. 479-480; People v. Ibanez, supra, 76 Cal.App.4th at p. 545.)
Finally, defendant claimed, without specifying the particular action in question, that the "case at bar" (capitalization omitted) constituted an unconstitutional violation of the barratry statute, Penal Code section 158, which makes it a crime to excite groundless judicial proceedings. His argument fails as unsupported by evidence. "`A petition for writ of error coram nobis places the burden of proof to overcome the strong presumption in favor of the validity of the judgment on the petitioner. This burden requires the production of strong and convincing evidence. A mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of the specific facts relied upon and not merely state conclusions as to the nature and effect of such facts. [Citation.] [Citations.]" (People v. Ibanez, supra, 76 Cal.App.4th at pp. 548-549.)
The trial court denied writ relief because defendants petition was untimely (People v. Castaneda, supra, 37 Cal.App.4th at pp. 1617-1619), and because his claims, either as based in legal error or as based on erroneous advice of counsel, were not cognizable in coram nobis (People v. Villa, supra, 148 Cal.App.4th at pp. 479-480). Defendants counsel on appeal briefly states that the following issues were considered or investigated, but that he determined they were not arguable: (1) whether defendant had in fact raised issues that were cognizable in coram nobis, i.e., fraud or misrepresentation by the pubic defender in collusion with the prosecutor; (2) whether the order denying the petition was nonappealable for failure to state a prima facie case for relief; and (3) whether the petition was untimely filed. We conclude counsel was correct in that assessment. As we have explained, defendant did raise issues cognizable in coram nobis, such as fraud, misrepresentation or duress, and supported his allegation with a minimal declaration to the effect that his plea bargain, at least in the second action, was extracted through duress. However, for reasons explained, the trial court did not abuse its discretion in denying his petition.
We have examined the record and found no other issues to argue. (People v. Kelly, supra, 40 Cal.4th 106; People v. Wende, supra, 25 Cal.3d 436.) The order is affirmed.
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.