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People v. Gonzales

Court of Appeal of California
Jul 1, 2008
No. B201311 (Cal. Ct. App. Jul. 1, 2008)

Opinion

B201311

7-1-2008

THE PEOPLE, Plaintiff and Respondent, v. GEORGE GONZALES, Defendant and Appellant.

Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. No Appearance for Plaintiff and Respondent.

Not to be Published


On December 16, 2002, the Los Angeles District Attorney filed a 14-count criminal complaint charging appellant with six counts of first degree residential burglary (Pen. Code § 459; counts one, five, seven, nine, eleven, thirteen.); seven counts of receiving stolen property (§ 496, subd. (a); counts two, four, six, eight, ten, twelve, fourteen); and one count of second degree commercial burglary (§ 459; count three.) It was further alleged as to counts one, two, and five through fourteen, that in 1995, in Los Angeles County case number KA028500, that appellant had suffered a conviction of a serious or violent felony (first degree burglary)(§ 1170.12, subds. (a)-(d), (§ 667, subds. (b)-(i))); as to counts one, five, seven, nine, eleven and thirteen, that in Los Angeles County case number KA028500, appellant suffered a conviction of a serious felony (§667, subd. (a)(1)); and that as to counts one, two and five through fourteen, that appellant had suffered two prison priors (§667.5, subd. (b).)

All further undesignated statutory references are to the Penal Code.

On December 16, 2002, appellant entered a plea of no contest to count one, first degree residential burglary (§ 459); admitted the strike prior and a conviction for a prior serious felony (§1170.12, subds. (a)-(d), (667, subds. (b)-(i)); § 667, subd. (a)(1).) All other counts were dismissed.

Appellant was sentenced to a total term of nine years in state prison: Count one, low term of two years (doubled because of strike prior) and five years consecutive for prison prior.

On June 29, 2007, appellant filed, in propria persona, a "Petition for Writ of Coram Nobis to Vacate an Illegal Sentence." Appellant alleged "that he was deprived of his Boykin-Tahl rights at the time of his prior plea . . . ." Appellant contended that the trial court committed "plain error" when it sentenced him under section 667, subdivision (a)(1) for a prior conviction in case number KA028500 and "the court should have stuck with Penal code section 667.5[, subd. (b)] one year term for each prior felony sentence . . . ." On July 2, 2007, the petition was denied ex parte, on the basis that the facts did not justify granting the motion.

In re Tahl (1969) 1 Cal.3d 122; Boykin v. Alabama (1969) 395 U.S. 238.

On August 7, 2007, appellant filed a timely notice of appeal from the "denial of a writ of error Coram Nobis" . . . and the final judgment . . . rendered in this action on July 2, 2007.

Order denying writ of error coram nobis is appealable as an order made after judgment. (People v. Kraus (1975) 47 Cal.App.3d 568; People v. Kirk (1950) 98 Cal.App.2d 687; People v. Martinez (1948) 88 Cal.App.2d 767, certiorari denied 337 U.S. 909.)

We appointed counsel to represent appellant on appeal. After examination of the record, on March 14, 2008, counsel filed an "Opening Brief" in which no issues were raised. On March 14, 2008, we advised Gonzales he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.

Denial of Petition for Writ of Coram Nobis

"`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 represented 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; see People v. Ibanez (1999) 76 Cal.App.4th 537, 544.) An appellant must present clear and convincing evidence in support of his petition. (People v. Tucker (1957) 154 Cal.App.2d 359, 362 ; People v. Adams (1950) 100 Cal.App.2d 841, 842.)

Appellant contends that his 2002 conviction in case no. KA059816 is invalid because he was "deprived of his "Boykin-Tahl rights" at the time of that plea. In support of his contention, he provides a transcript of the taking of the plea. The claim that a plea is constitutionally infirm because it was not preceded by adequate advisements, is a claim of legal error, not factual error. As noted above, "`[t]he writ [of coram nobis] lies to correct only errors of fact as distinguished from error of law. [Citation.] [Citation.]." (People v. Ibanez, supra, 76 Cal.App.4th at p. 545, quoting People v. Sharp (1958) 157 Cal.App.2d 205, 207.) For that reason, the petition was properly denied.

As the transcript contained reference to the use of a written waiver form, this court obtained the Superior Court filed from the prior proceeding and has taken judicial notice of the contents of that file.

Furthermore, our review of the Superior Court record indicates there is no merit to the contention the waivers were constitutionally inadequate. Prior to taking the plea, the following colloquy took place:

"[District Attorney (DA)]: Mr. Gonzalez . . . Im holding up copies of two page plea forms . . . bearing your names filled out under case no. KA 059816.

"[DA]: Did you . . . read over these forms with your attorneys, discuss the nature of the charges against you, the consequences of your pleas and your constitutional rights with them? Mr. Gonzalez?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: Did you . . . initial the boxes on both pages of this form and sign at the bottom? Mr. Gonzalez?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: Did your attorneys explain to you . . . your rights to a jury trial, confrontation, cross-examination, self-incrimination and the subpoena power of the court? Mr. Gonzalez?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: Do you . . . understand each and all of these rights? Mr. Gonzalez?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: Do you waive and give up each and all of those rights? Mr. Gonzalez?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: As a consequence of your plea, Mr. Gonzalez, youll be sentenced to nine years in state prison. The maximum sentence that could be imposed is 17 years in state prison. [¶]. . . [¶] Upon your release from state prison, you . . . will be placed on parole and if you violate your parole, you can be sentenced back to state prison for up to one year for each violation of parole.

"Additionally, a mandatory restitution fine of at last $200 must be imposed. Thats in addition to any actual restitution that may be owing.

¶]. . . [¶]

"If you . . . are not a citizen of the United States, by pleading guilty you will be deported, you will be denied naturalization and you will be excluded from admission to the United States.

"Mr. Gonzalez, because you are pleading guilty to a strike offense, any felony you commit in the future, the term of imprisonment that youll face is 25 years to life.

"Do you . . . understand the consequences of your plea?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA] Are you . . . entering your pleas freely and voluntarily and because you feel it is in your best interest to do so? Mr. Gonzalez.

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA] Do you . . . also waive and give up any rights, interests or claims in any of the property that was seized during the course of this investigation and agree that those items may be returned to their lawful owners or otherwise forfeited to the police department? Mr. Gonzalez?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: Do you . . . also agree that restitution may be calculated as to all counts in the information even though youre not pleading guilty to all counts? Mr. Gonzalez?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: Counsel stipulate that theres a factual basis for the plea and that the complaint may be deemed the information?

"[Defense counsel]: Yes.

[¶]. . . [¶]

"[DA] Mr. Gonzalez, at to count one of the information, a violation of 459 of the Penal Code, first degree residential burglary, how do you plead?

"Defendant Gonzalez: No contest.

"[DA]: Do you understand the court will treat that the same as a guilty plea?

"Defendant Gonzalez: Yes.

[¶]. . . [¶]

"[DA]: Counsel join in the waivers and concur in the plea?

"[Defense counsel] Yes.

[¶]. . . [¶]

"The Court: Very well, I accept . . . the pleas from . . . the defendants. Find that they both intelligently, knowingly, expressly and voluntarily waived their rights.

"And that they understand the consequences of the pleas and the range of penalties. Theres a factual basis for each of the pleas."

In addition to this very thorough inquiry, the waiver form which accompanied the taking of this plea contained in the superior court file sets forth in further detail all of the constitutional advisements necessary before the taking of a felony plea. The form is initialed and signed in all the appropriate places. The record shows clearly that appellant knowingly waived his rights to a jury trial, to cross-examine the witnesses against him, to present a defense and his privilege against self-incrimination, and voluntarily chose to plead no contest to the burglary charge. There is no factual support for appellants contention that he did not receive the necessary Boykin-Tahl advisements prior to the taking of the plea in case no. KA 059816.

Appellant also contends that "the trial court committed plain error when it sentenced [appellant] under Penal Code section 667 [, subdivision (a)(1)] for a prior conviction in case number KA028500 . . . [and] the court should have stuck with Penal Code section 667.5 [, subdivision (b) ] one year term for each prior felony sentence . . . ."

He suggests that the sentence imposed violates the "double-the-base-term" rule. However, the California Supreme Court has held that "section 667 was intended to impose an enhancement unlimited by the double base term rule." (People v. Jackson (1985) 37 Cal.3d 826, 837; People v. Prather (1990) 50 Cal.3d 428.) Imposition of the five-year enhancement was not limited by that rule.

Appellate Review

We have examined the entire record submitted by appellant and are satisfied that appellate counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment (order denying the petition for writ of error coram nobis ) is affirmed.

We concur:

RUBIN, J.

FLIER, J.


Summaries of

People v. Gonzales

Court of Appeal of California
Jul 1, 2008
No. B201311 (Cal. Ct. App. Jul. 1, 2008)
Case details for

People v. Gonzales

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GEORGE GONZALES, Defendant and…

Court:Court of Appeal of California

Date published: Jul 1, 2008

Citations

No. B201311 (Cal. Ct. App. Jul. 1, 2008)