Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. A708292, Burt Pines, Judge. Appeal dismissed.
Norton & Melnik and Todd Melnik for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Miguel Amador Huerta appeals from the trial court’s denial of his petition for writ of error coram nobis, which was based on newly discovered evidence. Because the petition fails to state a prima facie case for relief, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
1. Huerta’s Plea and Sentencing Hearings
Huerta’s step-niece reported to police that he had forcibly raped her on August 3, 1987. Huerta was arrested and charged by a two-count felony complaint with committing forcible rape (Pen. Code, § 261, subd. (2)) and a lewd act upon a child under the age of 14 years (§ 288, subd. (a)).
Statutory references are to the Penal Code unless otherwise indicated.
During the preliminary hearing, the step niece’s testimony raised a reasonable doubt in the prosecutor’s mind the rape was committed by force. The prosecutor also determined the step-niece was not under the age of 14 years and dismissed the lewd act charge. On August 17, 1987, prior to the completion of the preliminary hearing, Huerta agreed to enter a plea to an amended count of incest (§ 285). According to the terms of the agreement, at the discretion of the sentencing judge, Huerta would either be placed on three years probation on condition he serve one year in county jail, or be sentenced to the lower term of 16 months in state prison. In return, the prosecutor would move to have the forcible rape charge dismissed.
In 1987, section 285 provided, “Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age, or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison.”
Huerta was assisted at the plea hearing by Deputy Public Defender Dan Blum. In response to the magistrate’s inquiry, attorney Blum and Huerta stipulated Huerta and his step-niece were related by consanguinity within the meaning of section 285. Before entering his plea, Huerta was advised of his constitutional rights to a preliminary hearing and a jury trial, as well as the nature and consequences of his plea. Huerta informed the court he was pleading to the charge of incest because it was in his best interest to do so.
The magistrate found Huerta’s plea was knowingly, intelligently, and voluntarily entered, and there was a factual basis for the plea. Deputy Public Defender Dan Blum joined in the waivers and plea and stipulated to a factual basis.
At the sentencing hearing on September 14, 1987, the court suspended imposition of sentence and placed Huerta on five years formal probation with specified terms and conditions, including that he serve 365 days in county jail, with credit for time served. The charge of forcible rape was dismissed on the prosecutor’s motion. Huerta’s probation apparently terminated in 1993.
Huerta did not appeal from the judgment.
2. Huerta’s Request for Relief from His Plea Agreement
On July 16, 2007, nearly 20 years after the termination of his probation, Huerta filed a petition for writ of error coram nobis, contending newly discovered evidence established there had been no factual basis for the plea. Huerta was represented on the petition by Todd Melnik, who is also counsel on appeal.
In support of his petition, Huerta submitted three declarations asserting his step-niece had fabricated the sexual allegations she reported to police. In his own supporting declaration, Huerta stated although he had steadfastly denied the charges, his counsel advised he could be convicted of rape and sentenced to state prison following a jury trial based on his step-niece’s report to police and her medical exam; on the advice of counsel, Huerta agreed to plead guilty and to admit a factual basis for the incest charge to avoid a lengthy state prison sentence; Huerta’s admission to the Probation Department that he “barely” had sexual intercourse with his step-niece was untrue; “once [his step-niece] admitted to fabricating the allegations,” Huerta “did not know there was anything [he] could do to have [his] felony conviction reversed and [his] plea withdrawn”; and he did not have the funds to retain an attorney to pursue the appropriate relief.
In her supporting declaration, the step-niece stated she was 14 years old on August 3, 1987; Huerta is her stepmother’s brother; and she falsely reported to police that Huerta had forcibly raped and orally copulated her on that date. Although she and Huerta had engaged in some sexual activity on August 3, 1987, it did not include intercourse and was entirely consensual.
The third declaration, from Huerta’s sister, stated on the day of the preliminary hearing she informed the prosecutor that her stepdaughter was insisting Huerta “hadn’t forced her to do anything” and “did not want to press charges,” but the prosecutor said [the case] “was not about [the step-niece] against [Huerta], but now about the City or County . . . against [Huerta].” “A couple years later,” her stepdaughter confirmed she had not engaged in sexual intercourse with Huerta on August 3, 1987.
Also filed in support of the petition were transcripts of Huerta’s November 7, 1995 child custody hearing and September 3, 2003 deportation hearing, in which the step-niece testified and each time recanted her reported allegations of sexual misconduct by Huerta.
The trial court denied the coram nobis petition after finding Huerta had failed to allege facts showing a prima facie case for relief. It is apparent from the court’s written order that it gave thoughtful consideration to the arguments for relief advanced by Huerta.
In conjunction with his coram nobis petition, Huerta sought habeas corpus relief, which the court also denied on the ground Huerta was no longer “in prison or on probation or parole or otherwise in constructive custody on the offense in question.” Huerta has not pursued habeas corpus relief on appeal.
DISCUSSION
A petition for a writ of error coram nobis, the equivalent of a nonstatutory motion to vacate the judgment (People v. Dubon (2001) 90 Cal.App.4th 944, 950; People v. Gallardo (2000) 77 Cal.App.4th 971, 982), lies to give relief to a petitioner who 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.) The denial of a defendant’s request for coram nobis relief is reviewed for an abuse of discretion. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) However, denial of a petition for writ of error coram nobis is not appealable unless the petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [“[i]n an appeal from a trial court’s denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal”]; see Dubon, at p. 950; Gallardo, at p. 982.)
“The writ of coram nobis is granted only when three requirements are met. (1) Petitioner must ‘show 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, and which if presented would have prevented the rendition of the judgment.’ [Citations.] (2) Petitioner must also show that the ‘newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner ‘must show that 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. . . .’” (People v. Shipman (1965) 62 Cal.2d 226, 230 (Shipman).)
At the threshold, we agree with the trial court that Huerta failed to establish a prima facie case for coram nobis relief by demonstrating he exercised due diligence in moving to set aside the 1987 judgment. In his declaration, Huerta professed that after he entered his plea, he was unaware his step-niece had recanted her reported allegations until she testified at his child custody hearing. However, Huerta presented no explanation for his protracted delay in seeking coram nobis relief. As the trial court noted, “Whether we measure the time from his conviction until today (20 years) or the time from the 1995 hearing until today (12 years), [Huerta] has not provided sufficient justification for his delay in filing his petition.” (See Shipman, supra, 62 Cal.2d at p. 230 [writ of error coram nobis will not issue unless petitioner establishes he or she did not know and could not have discovered with due diligence the facts he or she relies on earlier than the time of the petition]; In re Watkins (1966) 64 Cal.2d 866, 870-872 [three-year delay precluded coram nobis relief]; see also People v. Shorts (1948) 32 Cal.2d 502, 513 [timeliness of presentation of facts supporting coram nobis petition must be pleaded with particularity]; People v. Rodriguez (1956) 143 Cal.App.2d 506, 508 [assertion of ignorance of the law will not excuse a three-year delay in seeking coram nobis relief].) For this reason alone, the trial court’s refusal to grant Huerta coram nobis relief is nonappealable. (People v. Gallardo, supra, 77 Cal.App.4th at pp. 982-983.) Accordingly, the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur: WOODS, Acting P. J., JACKSON, J.