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People v. Davis

California Court of Appeals, Second District, Third Division
Jul 11, 2008
No. B198247 (Cal. Ct. App. Jul. 11, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BH004051 Steven R. Van Sicklen, Judge.

William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, John R. Gorey and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.


ALDRICH, J.

INTRODUCTION

Defendant and appellant Michael Wayne Davis filed a petition for writ of error coram nobis in the trial court seeking to withdraw his guilty plea, entered into about 18 years ago. The trial court treated the petition as one for writ of habeas corpus and denied it. Maintaining that coram nobis was the correct procedural vehicle, Davis filed an appeal, rather than a petition for writ of habeas corpus, in this court. The People responded by filing a combined motion to dismiss the appeal and respondent’s brief. The People argue, among other things, that although the denial of a petition for writ of error coram nobis is appealable, the denial of a petition for writ of habeas corpus is not. Because the trial court treated the petition as one for writ of habeas corpus, Davis’s remedy, if any, was to file a writ of habeas corpus in this court.

We disagree and instead conclude that coram nobis was a proper procedural vehicle, and therefore the appeal is properly before us. Nonetheless, we also conclude that coram nobis relief is not available to Davis. We also alternatively conclude that, to the extent Davis’s petition can be treated as one for writ of habeas corpus, it too was properly denied.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

The factual background is from the preliminary hearing, held on December 3, 1986.

On June 14, 1986, the 16-year old victim was found in an alley. She initially told a paramedic something to the effect that she had been shot, but, after further questioning, she said she had been stabbed. The victim did not say anything about being raped. A doctor who examined the victim found evidence of significant bodily assault to all parts of her body, abrasions to her face, chest and shoulders, and bruised hands, knees, feet and hips. The victim also had stab wounds on her cheek, neck, and chest. Unable to speak because she was intubated, the victim nodded yes when asked if she had been raped; she indicated that her vagina, mouth and rectum had been violated. The doctor, however, found no evidence of blood or laceration to the victim’s vaginal or rectal area. The victim said she was a virgin. She had no hymenal ring, which, according to the doctor, could be “consistent with virginal examination.” If the victim was a virgin and had been raped, the doctor would have expected to find tearing of the hymen. The victim’s statements were given about 15 hours after the crime had been committed.

The victim died as a result of the stab wounds.

Davis gave two statements. In his first statement, Davis said he went to a friend’s house. After smoking a joint and drinking a beer, Davis went to a car wash, where he met Jeffrey Williams. They smoked a joint and drank a beer, after which they went to Williams’s mother’s house, where they smoked a “primo,” a strong marijuana cigarette. Another friend came by with a woman, who needed a ride home. Davis refused to give her a ride home, and he went to his grandmother’s house, where he remained for the rest of the night.

The interviewing officer told Davis he did not believe his story, and, a few hours after giving his first statement, Davis gave a second one. Davis was driving with Williams. Upon seeing another friend, they pulled over. The victim was with Davis’s friend. She got into Davis’s car, and they drove to meet “Blackie.” Davis, Williams, Blackie and the victim drove to Blackie’s house and dropped off Blackie. Williams asked the victim if she would have sex with him, since she had smoked some of his dope. The victim said no, she was a virgin, but she relented. After Williams and the victim had sex in the backseat of Davis’s car, Williams left. Davis then asked the victim to have sex with him. After initially saying no, she and Davis engaged in a “sexual act.”

After, the victim said she needed to go home. Davis drove her to several locations, but she was unable to find a place to stay. The victim and Davis argued, and the fight turned physical. The victim kicked and punched Davis and called him names. She took out what he thought was a blade, but was part of a Philips screwdriver. She began to stab Davis with it, but he took it from her and stabbed her, saying, “ ‘Here’s what it feels like.’ ” He also choked her. When he saw blood, he got scared, pushed her out of the car, and fled. Davis said he did not mean to hurt her.

II. Procedural background.

A. Davis pleads guilty to second degree murder.

An information was filed on December 18, 1986. It alleged one count of special circumstance murder (Pen. Code, § 187, subd. (a)) in that the murder was committed while Davis was engaged in the crime of rape (§ 190.2, subd. (a)(17)) and one count of forcible rape (former § 261(2)). As to both counts, the information alleged that Davis personally used a deadly and dangerous weapon, namely, a stabbing instrument (§ 12022, subd. (b)). As to count 2, the information alleged great bodily injury enhancements under sections 12022.7 and 1203.075. Davis was arraigned and pled not guilty.

All further undesignated statutory references are to the Penal Code.

Davis moved to set aside the information under section 995 on the grounds, among others, that the victim’s head nods were not spontaneous statements and therefore were inadmissible, and that the evidence was insufficient to establish that the murder was committed while Davis was engaged in rape. The trial court denied the motion. Davis filed a writ, which was apparently denied.

The People stated it would not seek the death penalty.

On January 26, 1988, Davis pled guilty to second degree murder and admitted personal use of a weapon. Count 2 and the special circumstance allegation were dismissed. Davis was advised he would be sentenced to 15 years for murder plus 1 year for the weapon use: “So you will be going to the state prison for a period somewhere between 16 years and the rest of your life.” He was further advised as follows:

“[Deputy district attorney]: This now means that there will not be any trial. The next thing that will happen is a probation report will be prepared. You’ll come into this courtroom and Judge Cooper will sentence you to 16 years to life. [¶] Do you understand that?

“[Defense counsel]: He understands that. He just – his understanding is that there is the possibility of parole.

“[Deputy district attorney]: I’ll explain those rights to him. [¶] . . . [¶] . . . But that has nothing to do with the sentence at this time. [¶] When you come back in here, there will be a probation report prepared but it doesn’t mean that you’re going to get any probation. That is a formality we’re going to follow. [¶] Judge Cooper will sentence you to 16 years to life. [¶] Do you understand that?

“The defendant: Yes.

“[Deputy district attorney]: All right. [¶] Now, eventually, you may get parole; and if you do get paroled, that parole will last three years and each violation of parole can send you back to state prison. [¶] And when you go back to state prison, there is always the possibility that you will still do the life sentence. [¶] Do you understand that?

“The defendant: Yes.

“[Deputy district attorney]: There is no guarantee of parole anywhere along the way. Your sentence is 16 years to life and what happens to you in state prison is between you and the adult authority and parole board. [¶] Do you understand that?

“The defendant: Yes.

“[Deputy district attorney]: Have any other promises been made to you other than what I have explained in open court today?

“[Defense counsel]: The only other promise would be that Count II would be dismissed and the special circumstances would be dismissed.

“[Deputy district attorney]: As explained by your attorney and considering those two promises, have any other promises been made to you?

“The defendant: No.” Sentence was thereafter imposed in accord with the plea agreement on February 17, 1988.

B. Davis files a petition for writ of error coram nobis.

It does not appear that Davis ever filed an appeal. But, about 18 years after entering into the plea agreement, Davis filed a petition for writ of error coram nobis on May 19, 2006 in the trial court. He argued that at the time he pled guilty he was misadvised he would be subject to three years’ parole, when in fact he would be subject to lifetime parole. He also argued that imposition of lifetime parole would violate the plea agreement. He did not discover he was subject to lifetime parole until April 2008, when he received a Legal Status Summary stating his parole period was “life.” Had he been properly advised, he would not have entered into the plea agreement; hence, he asked to withdraw his plea.

There is no dispute that the advisement was incorrect. Section 3000.1, subdivision (a), provides, “In the case of any inmate sentenced under Section 1168 for any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate’s life.” Subdivision (b) creates an exception when any person referred to in subdivision (a) has been released on parole from the state prison, and has been on parole continuously for five years. There is no dispute that Davis was subject to lifetime parole, and not to a three-year term of parole.

The trial court, citing People v. Esquibel (1975) 44 Cal.App.3d 591, deemed the petition to be one for writ of habeas corpus and asked the People to file an informal letter response. The People thus responded that the habeas petition was not timely, the issues raised could have been raised on appeal but were not, and defendant failed to show that the error prejudiced him.

Davis replied that a petition for writ of error coram nobis was the proper vehicle to vacate the judgment. He argued that the petition was timely, because he did not know he had been misadvised about his parole term until April 2006, when he received the Legal Status Summary, and the misadvisement about his parole term entitles him to withdraw his plea.

The trial court, on December 12, 2006, treated the petition as one for a writ of habeas corpus, and denied it. With respect to Davis’s claim he would have gone to trial had he known his parole period was for life, the court said the claim “strains credibility[,] . . . [j]ust as it strains credibility to believe petitioner spent 18 years in prison talking to ‘lifers’ among others, without learning of life parole for second-degree murder.” The court also noted that petitioner had not submitted an affidavit or declaration from his trial counsel to support his contention that parole was a paramount consideration in his decision to enter a guilty plea instead of going to trial.

This appeal followed the trial court’s order denying a petition for writ of habeas corpus.

DISCUSSION

I. Even if the petition was properly styled as a writ of coram nobis, Davis was not entitled to relief.

We first address a procedural issue. Davis entitled and styled his petition below as one for a writ of coram nobis. The trial court, however, expressly treated the petition as a writ for habeas corpus, and denied it. Davis then filed an appeal, setting forth two grounds for relief. First, what he filed in the trial court was a proper petition for coram nobis relief. Second, even if the petition is more properly treated as one for writ of habeas corpus, he is entitled to relief.

In response, the People filed a combined motion to dismiss and respondent’s brief. The People argue that the trial court treated the petition as one for habeas corpus, and since the denial of a petition for writ of habeas corpus is not appealable (In re Hochberg (1970) 2 Cal.3d 870, 876, rejected on another ground in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3), Davis’s appeal must be dismissed. The People, however, also alternatively argue that if the appeal is treated as a writ of habeas corpus, then it should still be denied.

It thus seems to us that the first question is whether the trial court properly concluded that what Davis’s petition sought was more properly brought in a petition for writ of habeas corpus rather than a petition for writ of coram nobis. The writ of error coram nobis is “an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion.” (People v. Chaklader (1994) 24 Cal.App.4th 407, 409.) “The writ of error coram nobis generally lies to give relief where the petitioner, 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.) Coram nobis, however, will not issue to vacate a guilty plea solely on the ground it was induced by trial counsel’s misstatements or where the claim is defendant did not receive effective assistance of counsel. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983.)

For example, in Gallardo, coram nobis relief was unavailable because the petition raised an ineffective assistance of counsel claim. Such a claim is in the nature of habeas corpus. (People v. Gallardo, supra, 77 Cal.App.4th at pp. 988-989.) In contrast, coram nobis relief was appropriately sought in People v. Goodrum (1991) 228 Cal.App.3d 397 (Goodrum). Goodrum pled nolo contendere to felony driving under the influence, in exchange for which he was placed on probation with time served. (Id. at p. 399.) Before accepting the plea, the trial court told Goodrum, incorrectly, the plea could not be used against him in a civil suit as an admission of liability. Thereafter, Goodrum filed a petition for writ of error coram nobis seeking to withdraw the plea based on the misinformation regarding the use of the plea in the civil case. The trial court denied the petition. The Court of Appeal affirmed the order because the misstatement concerned a collateral consequence of the plea and because it found that the bare admissibility of the plea in a civil action would not cause a reasonable defendant in Goodrum’s position to decline the favorable benefits of the plea bargain. (Id. at pp. 402-403.)

Important to the procedural issue before us, Goodrum also said that a petition for writ of error coram nobis may be entertained “whenever a defendant has been induced to enter the plea by misstatements made by a responsible public official.” (Goodrum, supra, 228 Cal.App.3d at p. 400.) The court also tangentially noted that it was treating the case as procedurally appropriate because the trial court’s statements were central to defendant’s misperception, whereas “if a defendant enters a plea based on the erroneous advice of counsel without judicial or prosecutorial involvement, the sole postappeal remedy would be a petition for writ of habeas corpus alleging ineffective assistance of counsel.” (Id. at p. 400, fn. 4.)

As in Goodrum, what is at issue here is a misstatement by a public official, i.e., the prosecutor. The prosecutor misadvised Davis he would be subject to a three-year term of parole when, in fact, he would be subject to a lifetime term of parole. Therefore, under Goodrum, it does not appear that Davis clearly erred in choosing to file in the trial court a petition for writ of error coram nobis. But that does not end the inquiry. Assuming that coram nobis was a proper procedural vehicle by which to raise his contentions, was Davis entitled to coram nobis relief? We conclude he was not.

The writ will properly issue only when the petitioner establishes 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.]” (People v. Soriano (1987) 194 Cal.App.3d 1470, 1474.)

The first element requires petitioner to raise a fact, as opposed to an error of law: “ ‘The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]’ [Citation.]” (People v. Ibanez (1999) 76 Cal.App.4th 537, 545.) “ ‘ “A mistake of fact” is where a person understands the facts to be other than they are; whereas a “mistake of law” is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts.’ ” (People v. LaMarr (1942) 20 Cal.2d 705, 710.) For example, in Ibanez, the trial court did not advise defendant of potential civil commitment proceedings under the Sexual Violent Predator Act, because it was unclear whether the law required such an advisement. Ibanez held that the failure to advise defendant of potential civil commitment resulting from the plea was a mistake of law.

Davis suggests that Ibanez is distinguishable because it involved a failure to advise whereas this case involves an affirmative misadvisement. We do not think that distinction makes the misadvisement here one of fact rather than law. The prosecutor’s misadvisement about the term of parole still does not amount to an allegation of unknown facts or evidence. (See People v. McElwee (2005) 128 Cal.App.4th 1348 [appellant’s mistaken belief at the time of his plea that he would serve only 15 years was a mistake of fact].) Rather, Davis harbored a mistaken belief about the legal consequences of his conviction for second degree murder; hence, his mistake was one of law, not fact.

We therefore conclude that although Davis could properly raise his claim in a petition for writ of error coram nobis, such relief nonetheless could not be granted.

II. The writ of habeas corpus.

Although Davis styled his petition below as one for writ of error coram nobis the trial court treated it as one for habeas corpus. Davis thus alternatively argues that he is entitled to habeas corpus relief. We disagree.

A defendant who pleads guilty must be advised of the direct consequences of conviction. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) The parole period a defendant is required to serve is a direct consequence of being convicted. (In re Moser (1993) 6 Cal.4th 342, 351-352; In re Carabes (1983) 144 Cal.App.3d 927, 932.) A defendant who has been misadvised of parole consequences is thus entitled to habeas corpus relief “only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.” (In re Moser, at p. 352.)

Here, Davis contends he would not have entered into the guilty plea had he been told he would be subject to a lifetime term of parole. At least one court has refused to allow a defendant to withdraw his plea under similar circumstances. (People v. Avila (1994) 24 Cal.App.4th 1455.) In Avila, defendant pled guilty to second degree murder. At the plea hearing, the trial court misadvised defendant that when he completed his prison term he would be on parole for a three-year period. (Id. at pp. 1457-1458.) In fact, defendant was subject to a lifetime term of parole. Before sentencing, defendant moved to withdraw his plea, but the court denied the motion, and the Court of Appeal affirmed. Citing In re Moser, Avila found that defendant failed to establish prejudice as a result of the misadvisement. The court noted that defendant had faced a possible 31-years-to-life term if convicted of first degree murder. (Avila, at p. 1460.) Defendant’s negotiated 16-year term was thus a “favorable one,” and therefore, defendant suffered no prejudice. (Ibid.)

Here too Davis has not shown prejudice. If we assume that the prosecutor would not have pursued the rape charge, Davis was nonetheless facing a possible conviction for first degree murder, which carried a sentence of 25 years to life (§ 190, subd. (a)) plus an additional one-year term if the weapon enhancement was found true (§ 12022). Davis concedes this, but he argues he might have been convicted only of second degree murder or of voluntary manslaughter. Had he known that second degree murder carried a lifetime term of parole he might have gone to trial, risked being convicted of first degree murder, in the hope of being convicted of only voluntary manslaughter, which did not carry lifetime parole.

In its order denying Davis’s petition, the trial court incorrectly noted that Davis was facing a possible death sentence or life without possibility of parole. That does not appear to be correct. Before Davis entered his plea, the People had indicated it would not seek the death penalty. Also, at Davis’s sentencing hearing, the trial court explained to the victim’s family members, some of whom had requested the death penalty or life without the possibility of parole, that the “investigation in this case convinced the district attorney and convinced the court that it was impossible to prove beyond a reasonable doubt that the special circumstance alleged could be established in this case. [¶] If there had been a possibility, the case would have been tried and the special circumstances attempted to be proved. It simply was not possible. The evidence was not there.” Therefore, it is possible that the People would not have gone forward on the rape charge.

We cannot say that the trial court erred in finding these assertions incredible. Davis stabbed the 16-year-old victim repeatedly with a screwdriver. He then pushed her out of his car. Notwithstanding Davis’s statement to the police that he had argued with the victim before stabbing her, there was certainly a huge risk he would be convicted of at least second degree murder, if not first degree murder. In any event, Davis’s assertion that the issue of parole was so significant to him that he would have risked an additional 10 years is not reflected in the record. The record shows that what was significant to Davis was that he might one day be eligible for parole, not how long he would be on parole if he was granted it. Specifically, after the prosecutor asked Davis if he understood he would be sentenced to 16 years, Davis’s trial counsel stated that his client understood, but that it was also his understanding that there was the possibility of parole. Neither Davis nor his trial counsel ever stated that the term of parole—as opposed to the possibility of it—was important to Davis. We find Davis’s assertion that the length of any parole term was important to him all the more incredible given the prosecutor’s repeated admonition that there was no assurance he would ever be paroled. We therefore conclude that the trial court properly determined that Davis suffered no prejudice from the misadvisement of the parole consequences of his plea.

We also conclude that the misadvisement did not violate Davis’s plea agreement, which is an additional contention that Davis raises. As in Avila, there is no evidence here that a three-year maximum parole period was a subject of negotiation or discussion or that the prosecutor made any promises or inducements relevant to that period. (People v. Avila, supra, 24 Cal.App.4th at p. 1461.) To the contrary, the record shows that what was important to Davis was the fact he might be eligible for parole, not how long he would be subject to parole if parole was granted. Nor could it have been the subject of such a discussion, since “the parole period was a statutorily mandated consequence of defendant’s conviction.” (Ibid.; see also In re Moser, supra, 6 Cal.4th at p. 357.) Also, when asked if there had been any promises made to him, Davis and his trial counsel agreed that other than the dismissal of the rape and special circumstance allegations no promises had been made. The misadvisement therefore did not violate a term of the plea bargain.

DISPOSITION

The motion to dismiss the appeal is denied. The judgment is affirmed.

We concur: CROSKEY Acting P. J., KITCHING, J.

We also note that it is not clear on what the trial court was basing its conclusion. But the record does show that the trial court, in 1987, ordered Davis to give blood and saliva samples. Three days later, the People stated it would not seek the death penalty. Thereafter, Jeffrey Williams was ordered to give a blood sample. A handwritten document appearing to summarize the activities in the case references a 1988 probation report, which apparently indicated that someone other than Davis had sex with the victim.


Summaries of

People v. Davis

California Court of Appeals, Second District, Third Division
Jul 11, 2008
No. B198247 (Cal. Ct. App. Jul. 11, 2008)
Case details for

People v. Davis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WAYNE DAVIS, Defendant…

Court:California Court of Appeals, Second District, Third Division

Date published: Jul 11, 2008

Citations

No. B198247 (Cal. Ct. App. Jul. 11, 2008)