Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Leslie E. Brown, Judge. Los Angeles County Super. Ct. No. A573012
Clark & McCray-Clark and Charles H. Clark, Jr. for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Michael Odell Harvey seeks to withdraw his 1988 plea of guilty to robbery and two counts of assault with a firearm, or have those convictions dismissed in the interest of justice. We affirm the trial court order denying his motion to vacate, which he also denominated as a petition for writ of coram nobis.
FACTUAL AND PROCEDURAL BACKGROUND
In 1974, when Harvey was six years old, he was in a fire. In 1987, he pled guilty to robbery and two counts of assault with a firearm in case No. A573012. Judgment was entered in March 1988. In 1995, Harvey was convicted of criminal threats, burglary, and assault with a deadly weapon, which he seeks to minimize by stating that the victims were the relatives of his girlfriend. Harvey also states that he has been charged in November 2005, in Torrance in case No. YA058404, and we assume the accuracy of that statement for purposes of this appeal.
In 2005, in Superior Court in Pasadena, Harvey filed a motion to vacate, or in the alternative, petition for writ of coram nobis. He sought to have the trial court dismiss his 1988 convictions. He attached a psychological report indicating that he suffered from encephalopathy, which caused atypical depression and learning disabilities. The psychologist who tested Harvey opined that Harvey “is often unable to think through his actions and appropriately regulate himself.”
The trial court denied Harvey’s motion/petition in February 2006, and Harvey appealed from that order.
DISCUSSION
I. Harvey Has Not Shown the Court Should Allow Him to Withdraw His 1987 Guilty Plea
“‘[A]n attack on a judgment by motion to vacate it is in legal effect a proceeding for a writ of error coram nobis, whether it be called by that name or not.’” (People v. Dowding (1960) 185 Cal.App.2d 274, 276.) The purpose of the writ of coram nobis “‘is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court.’” (Ibid.)
Harvey does not show any fact that would render the judgment invalid. He correctly points out that in People v. Welch (1964) 61 Cal.2d 786, the court granted a writ of coram nobis where the petitioner discovered that he suffered from encephalopathy and filed a petition two years after his conviction, with an affidavit from the public defender that the public defender was unaware of the defendant’s condition. (Id. at pp. 789-790.) But that case is different because the medical report in that case indicated that a person with the defendant’s history “‘who consumes over three quarts of beer within a period of three hours cold be expected to be in a mental state in which his behavior would be automatic and for which he would be unable to recognize or understand the nature and consequences of his act . . . .’” (Id. at p. 790.) There was evidence that the defendant drank three quarts of beer on the day he shot someone. (Id. at p. 788.) The high court found that the question of the defendant’s legal sanity at the time of the crimes was not adjudicated. (Id. at p. 794.) If the defendant were insane at the time of the plea it would have made the plea agreement invalid.
No comparable evidence exists in this case. Although there was evidence that Harvey suffered from encephalopathy and had learning disabilities and atypical depression, no evidence indicated he may have been insane at the time of the commission of his crimes. Dr. Malinek did not opine, as did the physician in Welch, that Harvey was incapable of appreciating the nature and consequences of his act or that his behavior was automatic. Dr. Malinek opined that Harvey is “often unable to think through his actions and appropriately regulate himself.” This evidence does not show the existence of a fact that would have prevented the rendering of judgment in Harvey’s prior criminal cases and distinguishes this case from Welch.
Penal Code section 25, subdivision (b) provides: “In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.”
Appellant cites In re Tahl (1969) 1 Cal.3d 122, 132, disapproved on other grounds in Mills v. Municipal Court (1973) 10 Cal.3d 288, 306, fn. 16, and appears to argue that his 1988 guilty plea was not knowingly made. In seeking a writ of coram nobis, it is appellant’s burden to show, among other things, 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, which if presented would have prevented the rendition of the judgment.” (People v. Shipman (1965) 62 Cal.2d 226, 230.) Because appellant’s encephalopathy is the only new fact presented in his petition for coram nobis, we presume that appellant is arguing that if the trial court were aware that he suffered from encephalopathy, the trial court would have found that his guilty plea was not knowingly made. Appellant provides no such evidence.
The record indicates that appellant was advised of his right to a jury trial, to a court trial, to confrontation, and cross-examination, to subpoena witness, and to remain silent. Appellant responded that he understood and gave up each right. He also was advised of the nature and consequences of his plea. The court found appellant understood the consequences of his plea and voluntarily waived his constitutional rights.
Appellant points out that when his waiver was taken, he indicated that he had a question, he answered some questions by nodding his head, and he conferred with his counsel during the plea. These “facts” emphasized by appellant were known at the time of the plea. Dr. Malinek’s declaration that appellant suffered from atypical depression and learning disabilities as a result of his encephalopathy does not undermine the trial court’s conclusion that appellant’s plea was voluntary and knowingly made. For purposes of a writ of coram nobis, appellant has presented no new fact which, if presented to the trial court, would have prevented the rendition of judgment.
II. There Is No Basis to Dismiss Harvey’s Prior Convictions Pursuant to Penal Code Section 1385
Through his petition for coram nobis, Harvey seeks to have his prior convictions dismissed in case No. YA058404.
In In re Varnell (2003) 30 Cal.4th 1132, 1139, our high court held “that a trial court’s power to dismiss an ‘action’ under [Penal Code] section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation (e.g., Cal. Rules of Court, rule 4.414(b)(1)) or to select among the aggravated, middle, or mitigated terms (e.g., id., rule 4.421(b)(1)). Section 1210.1, like the deferred-entry-of-judgment statutes, does not require that the basis for a defendant’s ineligibility be alleged in the accusatory pleading. In the absence of a charge or allegation, there is nothing to order dismissed under section 1385.” (See also People v. Bordeaux (1990) 224 Cal.App.3d 573, 581 [“The discretion of the judge to dismiss a charge under Penal Code section 1385 in the interests of justice may be exercised, like the common law power of nolle prosequi vested by the statute in the court, at any time during the trial, while the case is before the jury or even after a jury verdict”].)
Here, Harvey has filed a collateral attack; he has not challenged the priors in the context of a case with a charge or allegation in an accusatory pleading. To rely on Penal Code section 1385, he must file his challenge in the case in which he seeks to have the charges or allegations dismissed. We need not decide whether the court in Harvey’s pending case should dismiss his prior convictions in the interest of justice. That issue is one for another court if it is properly raised in the pending criminal proceeding. Neither People v. Superior Court (Romero) (1996) 13 Cal.4th 497, nor People v. Williams (1998) 17 Cal.4th 148, cases Harvey cites, authorize a trial court different from the one trying a case to dismiss prior convictions under Penal Code section 1385. In both of those cases, our high court discussed the dismissal of prior convictions in the context of a motion made in the pending criminal proceeding. In addition, as the Attorney General points out, if Harvey had been successful in his writ, the appropriate relief would be to allow him to withdraw his plea, not to dismiss his prior convictions. (People v. Goodrum (1991) 228 Cal.App.3d 397, 400-401.)
DISPOSITION
The order denying Harvey’s motion to vacate/petition for writ of coram nobis is affirmed.
We concur: RUBIN, J., FLIER, J.