Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. F05907680-3. Carlos A. Cabrera, Judge.
Wesley E. Stupar, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Marcia A. Fay, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
Pursuant to a plea agreement, appellant Nicholas Dueck pled no contest to grand theft of a firearm (Pen. Code, § 487, subd. (d)). The court placed appellant on three years’ probation, one of the conditions of which was that he serve 136 days in county jail. Thereafter, appellant moved to withdraw his plea and vacate his sentence. The court denied the plea/judgment motion, and the instant appeal followed.
All statutory references are to the Penal Code.
We refer to this motion as the plea/judgment motion.
On appeal, appellant contends the court erred in denying the plea/judgment motion. We will affirm.
The facts of the instant offense are not relevant to the issues raised on appeal. Therefore, we will forego recitation of those facts.
In October 2005, appellant was charged with three offenses: the instant offense, second degree burglary (§§ 459, 460, subd. (b)), and unlicensed sale of firearms (§ 12070, subd. (b)). In December 2005, pursuant to a plea agreement, appellant pled no contest to the instant offense, and the court dismissed the remaining charges. The plea agreement also included a provision for “no initial state prison,” and the “FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM” (plea advisement and waiver form) executed by appellant on December 7, 2005, indicates, under the heading “Other possible consequences of this plea may include,” the following: “[Section] 1203.4 APPLICATION UPON SUCCESSFUL COMPLETION OF FELONY PROBATION.” The plea advisement and waiver form makes no reference to any possibility of reducing the instant offense to a misdemeanor.
Section 1203.4 provides that a defendant who has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of probation, is entitled as a matter of right to have the plea or verdict changed to not guilty; to have the accusations dismissed; and, subject to several important exceptions, to “be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . .” (§ 1203.4, subd. (a).) The exceptions include the following: the conviction may be pled and proved as a prior conviction in any subsequent prosecution, and the probationer is “not relieve[d] . . . of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.” (Ibid.)
In February 2006, the court granted appellant probation.
In March 2006, appellant filed a notice of motion to withdraw his plea, and in August 2006 he filed the plea/judgment motion, which “incorporate[d]” his March 2006 motion.
In support of the plea/judgment motion, appellant filed a declaration executed by attorney Roger T. Nuttall, in which Mr. Nuttall averred as follows: he was a member of the law firm representing appellant; in representing appellant, he erroneously advised appellant that the instant offense “was a ‘hybrid’ offense, enabling him to seek the benefits of Penal Code section 17(b), whereby a charge may be declared a misdemeanor upon successful completion of probation”; and appellant told Mr. Nuttall he would plead guilty [sic] to the charge of grand theft of a firearm “only . . . if [the charge] could be reduced to a misdemeanor pursuant to Penal code section 17(b).”
DISCUSSION
Certain criminal offenses, commonly called “wobblers” or “hybrid” offenses, are punishable either as felonies or misdemeanors, in the discretion of the court. When a defendant is placed on probation for such an offense, the court may, on application made at the time of granting of probation or at some point “thereafter,” declare the offense to be a misdemeanor. (§ 17, subd. (b)(3).) As appellant notes, the instant offense, grand theft of a firearm, is not a hybrid offense.
Appellant argues that his plea was the product of constitutionally ineffective assistance of counsel because his counsel incorrectly advised him the instant offense was a hybrid and appellant relied on that advice in pleading no contest, and therefore the court erred in denying the plea/judgment motion.
Appellant characterizes the plea/judgment motion as a petition for writ of error coram nobis. We agree. A petition for writ of error coram nobis (coram nobis petition) “is equivalent to a motion to vacate the judgment,” and “ ‘is generally used to bring factual errors or omissions to the court’s attention.’ ” (People v. Dubon (2001) 90 Cal.App.4th 944, 950; accord, People v. Gallardo (2000) 77 Cal.App.4th 971, 982 [“the terms ‘motion to vacate’ and “petition for writ of error coram nobis’ are often used interchangeably”].) “ ‘ “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.]” ’ ” (People v. Dubon, supra, 90 Cal.App.4th at p. 951.) Appellant suggests that the “fact . . . which would have prevented the rendition of the judgment . . . [which appellant] did not know nor could he have, with due diligence, discovered” (ibid.) was that grand theft of a firearm was not a wobbler.
However, “[t]he writ [of error coram nobis] lies to correct only errors of fact as distinguished from errors of law.” (People v. Sharp (1958) 157 Cal.App.2d 205, 207.) “ ‘ “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.) Appellant’s mistaken belief about the legal consequences of his conviction of grand theft of a firearm was a mistake of law, not a mistake of fact. It was not the kind of mistake that is within the scope of review of a coram nobis petition.
But more fundamentally, “Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel [citation] or where the claim is that the defendant did not receive effective assistance from counsel [citations].” (People v. Gallardo, supra, 77 Cal.App.4th at pp. 982-983; accord, People v. Sharp, supra, 157 Cal.App.2d at p. 208.) “Where coram nobis raises only such grounds, an appeal from the superior court’s ruling may be dismissed as frivolous.” (People v. Gallardo, supra, 77 Cal.App.4th at p. 983.) Here, as indicated above, the basis of appellant’s claim of coram nobis relief is the contention that appellant’s counsel advised him incorrectly, thereby providing constitutionally deficient representation. Therefore, appellant’s challenge to the denial of coram nobis relief is not cognizable on appeal.
We recognize that in U.S. v. Kwan (9th Cir. 2005) 407 F.3d 1005 (Kwan), cited by appellant, the appellate court reversed a lower court denial of a coram nobis petition brought by a resident alien, Kwan, who challenged his plea-based conviction on the ground that his counsel was constitutionally ineffective in “affirmatively misleading him as to the immigration consequences of his conviction . . . .” (Id. at p. 1008.) However, Kwan, at the time he brought his petition, was in neither constructive custody, e.g., on parole or probation, or actual custody, and the Court of Appeals applied the principle that “[a]n individual no longer in custody may employ the rarely-used writ of coram nobis to make a Sixth Amendment assistance of counsel attack on his conviction.” (U.S. v. Mett (9th Cir. 1995) 65 F.3d 1531, 1534, italics added.) Appellant, on the other hand, was on probation, and therefore in constructive custody, at the time he made the plea/judgment motion. (Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 796.) Therefore, Kwan does not assist appellant.
DISPOSITION
The judgment is affirmed.