Opinion
H046667
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. SHEDRICK HENRY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Superior Court No. 18HC000214)
Appellant Shedrick Henry has been in prison since 1996 for second-degree murder and for other offenses he subsequently committed. He appeals an order denying a writ of error coram nobis he filed in the Monterey County Superior Court. On appeal, Henry's appointed counsel filed a brief that raised no issues pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), and Henry filed a supplemental brief on his own behalf. As there are no arguable issues on appeal from the order denying the writ of error coram nobis, we will dismiss the appeal.
I. FACTS AND PROCEDURAL BACKGROUND
In 1996, Henry was convicted in Alameda County of second-degree murder and of discharging a firearm at an inhabited dwelling. He was sentenced to serve 19 years to life imprisonment (Alameda County murder conviction). In 2002, he was convicted in Monterey County of assault by a prisoner (former Penal Code § 4501), and after this court remanded the matter for resentencing, was sentenced to a four-year term of imprisonment.
Unspecified statutory references are to the Penal Code.
A more detailed recitation of the underlying facts can be found in this court's opinions in People v. Henry (Aug. 29. 2003, H024491 [nonpub. opn.]) and In re Shedrick L. Henry, on Habeas Corpus (Aug. 27, 2018, H044227 [nonpub. opn.].)
On July 26, 2013, in case No. SS131467, the Monterey County District Attorney charged Henry with three counts of possession of controlled substances in prison. (§ 4573.6, subd. (a).) The complaint also alleged that Henry had prior convictions for murder, discharging a firearm at a dwelling, and assault by a prisoner, and that all three qualified as strike priors. (§ 1170.12.) On March 13, 2014, Henry waived his constitutional rights and pleaded guilty to one count and admitted he had suffered the three alleged strike priors. Pursuant to the terms of the negotiated plea agreement, Henry was sentenced to 25 years to life imprisonment (drug conviction).
In 2016, Henry filed a petition for writ of habeas corpus in which he set forth three grounds for relief, all of which pertained to his 2002 conviction for violating section 4501: (1) his due process rights were violated because the trial court did not make findings whether the assault was committed with a deadly weapon or by means of force likely to produce great bodily injury; (2) he was improperly convicted of violating former section 4501 since he was serving a life sentence and the statute applied only to prisoners serving less than a life sentence; and (3) his jury trial waiver was invalid because former section 4501 did not apply to him.
Former section 4501 provided, "Every person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively." (Stats. 1978, ch. 579, § 33.) --------
In April 2018, this court issued an order to show cause regarding Henry's claim that his conviction under former section 4501 was invalid because he was serving an indeterminate life sentence at the time of the offense. On August 27, 2018, this court issued an opinion holding that Henry's conviction for violating former section 4501 was invalid. This court ordered the trial court to vacate the judgment, modify it to reflect a conviction of former section 245, subdivision (a)(1), and resentence Henry.
Representing himself, on October 29, 2018, Henry filed a petition for writ of error coram nobis in the superior court seeking to vacate the drug conviction. In the petition, Henry argued that the strike arising from his section 4501 conviction must be stricken, and, because he did not have two or more prior strike convictions, his judgment and sentence for the drug conviction must be vacated. Henry also sought permission to withdraw his plea because the prosecutor made misrepresentations to the court and to him. Henry argued that the plea was involuntary because it was made under duress and by means of trickery and mistake.
To his petition, Henry attached a declaration signed under penalty of perjury. In his declaration, Henry alleged he would not have accepted a plea bargain nor waived his constitutional rights had he known the alleged strike for violating section 4501 was invalid. On December 27, 2018, the superior court denied the petition for writ of error coram nobis. Although it did not determine whether a writ of error coram nobis was the proper legal remedy to raise these claims, the trial court held that the legal status of the prior conviction for assault by a prisoner did not affect the validity of Henry's plea bargain because he had suffered two other strike convictions in his 1996 murder conviction from Alameda County. On January 14, 2019, Henry filed a timely notice of appeal of the trial court's order denying his petition for writ of error coram nobis.
This court appointed counsel to represent Henry on appeal. Appointed counsel filed an opening brief pursuant to People v. Serrano, supra, 211 Cal.App.4th 496, which states the case and the facts but raises no specific issues. Pursuant to Serrano, on August 22, 2019, this court notified Henry of his right to submit written argument on his own behalf within 30 days. After requesting and receiving several extensions of time, on December 2, 2019, Henry filed a supplemental brief.
II. DISCUSSION
In his supplemental brief, Henry contends the trial court erred in denying the coram nobis petition. He argues that his jury trial waiver and plea were not valid because they were induced by fraud and prosecutorial misconduct. He further argues that the plea agreement is not enforceable because it is a voidable contract.
As a threshold matter, we observe that arguments of prosecutorial misconduct, fraud, and voidability of the plea bargain are not cognizable grounds for relief in a writ of error coram nobis. "The writ of error coram nobis is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown . . . . The grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower than on habeas corpus [citation]; the writ's purpose '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.' " (People v. Kim (2009) 45 Cal.4th 1078, 1091 (Kim).)
In order to get coram nobis relief, a petitioner must show that 1) " ' "some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment," ' " 2) " ' "the newly discovered evidence . . . [does not go] to the merits of issues tried," ' " and 3) " ' "the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ." ' " (Kim, supra, 45 Cal.4th at p. 1093, quoting People v. Shipman (1965) 62 Cal.2d 226, 230.) To secure coram nobis relief, Henry would have to show that the unknown invalidity of the section 4501 conviction, if known at the time of the drug conviction, would have prevented the drug conviction and sentence. (Kim, at p. 1102.)
A. The Unknown Fact Does not Support a Writ of Error Coram Nobis.
Henry contends that the fact unknown at the time the court rendered judgment in 2014 in the drug case was that the section 4501 conviction was invalid and thus could not qualify as a prior strike conviction. But not every unknown fact supports coram nobis relief. To determine if coram nobis relief is available, we must first look to the unknown fact itself and not to its legal effect. (Kim, supra, 45 Cal.4th at p. 1093.)
Relief is not available where the parties and the court have made a mistake of law. " 'It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts.' " (Kim, supra, 45 Cal.4th at p. 1093; see also People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 [defendant's belief he would serve only 15 years in prison was not mistake of fact but one of law].) When Henry was sentenced in 2014 in the drug conviction, all parties and the court believed that Henry had been lawfully convicted of a violation of section 4501 and that this conviction qualified as a strike.
The belief that Henry had three prior strikes —subsequently determined to be erroneous by this court's 2018 opinion that invalidated on legal grounds the section 4501 conviction—is a mistake of law, not of fact. (See People v. Banks (1959) 53 Cal.2d 370, 379 [defendant's guilty plea to having a prior felony conviction when he was eligible to have the prior reduced to a misdemeanor held to be a mistake of law].) Ignorance as to the validity of an underlying strike does not entitle Henry to coram nobis relief, and Henry can point to no other fact underlying his drug conviction that was unknown to the trial court at the time it rendered judgment.
B. Henry Cannot Show That the Court's Knowledge About the Validity of the Third Strike Would Have Prevented Rendition of the Judgment.
Even if the nature of the unknown fact supported coram nobis relief, Henry cannot show that the unknown fact, if timely presented to the court, would have prevented rendition of the judgment. Henry argues that he would not have waived his jury trial rights or accepted the plea had he known about the invalidity of the third strike. However, neither the prosecutor's intent nor the defendant's mistaken reliance is germane to the inquiry, because it is only the court's knowledge of the unknown fact that is relevant. The question on coram nobis is not whether Henry would have acted differently, but whether the unknown fact, if presented to the court prior to judgment, would have prevented rendition of the judgment. (Kim, supra, 45 Cal.4th at p. 1093.)
As the trial court correctly observed in its order, the validity of Henry's plea is not affected by the validity of the section 4501 conviction because Henry had two other prior strikes from the Alameda County murder conviction: one for second degree murder and one for discharging a firearm into a dwelling under section 246. Based solely on these prior strikes—and setting aside the section 4501 conviction—the trial court could lawfully have sentenced Henry to 25 years to life for the drug conviction. (§ 667, subd. (b)-(i).) Therefore, Henry cannot show that knowledge of the invalidity of the section 4501 strike would have prevented rendition of the judgment. (See Kim, supra, 45 Cal.4th at p. 1095.)
As nothing in Henry's supplemental brief raises an arguable issue, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
III. DISPOSITION
The appeal is dismissed.
/s/_________
Danner, J.
WE CONCUR:
/s/_________
Greenwood, P.J.
/s/_________
Elia, J.