Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. CR74648, David J. Danielsen, Judge.
BENKE, Acting P. J.
In this case the defendant contends that when, in 1985, he was sentenced under the terms of a plea agreement for burglary, the prosecutor stated the burglary conviction would not increase any future punishment by more than five years of incarceration. He argues that, notwithstanding the prosecutor's statement, in 1994 the 1985 burglary conviction was in fact used under the then-recently enacted Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) to impose the 25-year-to-life term he is presently serving. He argues the 1994 sentence therefore violated the terms of his 1985 plea agreement and entitles him to coram nobis relief.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court denied his petition for writ of error coram nobis. We affirm. While we believe it is quite possible that in 1985 the prosecutor made a reference to the five-year enhancement then possible under section 667, such a reference did not prevent the state from thereafter increasing the potential impact of the 1985 conviction in the event defendant committed another crime. We reject, as simply not credible, the defendant's contention that under the agreement he agreed he would not get the benefit of any future leniency in the law and the prosecutor agreed the state would not enforce any increased enhancement enacted by the Legislature or the People by way of initiative.
Moreover, relief by way of coram nobis requires the petitioner act diligently to assert the judgment he challenges was entered as the result of a factual error which was not known and could not be known until the time the petitioner sought relief. Although defendant challenged imposition of a three strikes sentence on a number of grounds in his appeal from the 1994 conviction, he did not raise his contentions with respect to the prosecutor's 1985 statement until 2010, when he filed the instant petition. Under these circumstances his lack of diligence also bars any relief by way of coram nobis.
FACTUAL AND PROCEDURAL BACKGROUND
In 1981 defendant and appellant Harry Little was convicted of robbery. In 1985 Little pled guilty to first degree burglary (§460, subd. (a)) and was sentenced to state prison for 16 months on the burglary conviction. As permitted under People v. West (1970) 3 Cal.3d 595, Little did not make an admission of guilt.
In 1994 Little was convicted of two counts of receiving stolen property (§ 496, subd. (a)). In light of his prior convictions he was sentenced to a term of 25 years to life under the three strikes law. Little appealed his 1994 conviction and challenged among other matters, the state's use of his 1981 conviction as a predicate to sentencing under the three strikes law.
In 2010 Little filed the instant coram nobis petition, in propria persona. In his petition Little alleged that at the time of his 1985 plea to the burlgary charge, the prosecutor stated: " 'If in the future the Law changes and there is no more 5 year prior and the Petitioner wanted to get out of the 5 year Prior he could[n't], but on the other hand if the court wanted to give the Petitioner more than a 5 year prior they could[n't].' " Appended to Little's petition is a letter from the public defender's office which states that although the public defender was able to provide Little with copies of the court's file from 1985 case, no reporter's transcript of his plea hearing was available and the court reporter who recorded the hearing destroyed her notes of the hearing.
Later, in a July 21, 2010 declaration Little submitted in support of his petition, Little recounted a slightly different version of the prosecutor's statement: " 'if there was some new Law in the future and there were no more five year prior and Mr. Little wanted to get out of the five year prior He could[n't]. But on the other hand if there were some new Law in the future and the court wanted to give Mr. Little more than a five year prior they could[n't].' "
Little argued that in light of his recollection of the prosecutor's statement, the 1985 conviction should not have been used as a strike when he was sentenced in 1994.
The trial court denied Little's petition. In particular, the trial court found Little had not established that the prosecutor made the statement Little attributed to him, that because of the passage of time, transcripts of the hearing no longer exist and that Little offered no explanation for his failure to assert his claim following his 1994 conviction, rather than 15 years later.
Little filed a timely notice of appeal. On appeal Little's appointed counsel filed a brief which summarizes the proceedings below, but raises no specific claims of error. (See People v. Wende (1979) 25 Cal.3d 436, Anders v. California (1967) 386 U.S. 738.) Following our review of the record, we asked for and received briefing from the parties as to whether we should remand the case for further proceedings with respect to whether there is a factual basis for appellant's request for relief from the terms of the 1994 judgment of conviction.
DISCUSSION
As we indicated at outset, we will affirm the trial court's order denying Little's petition without any remand for further proceedings. The court's opinion in People v. Gipson (2004) 117 Cal.App.4th 1065, 1068-1070 (Gipson) largely informs our decision.
In Gipson the defendant entered into a plea bargain in 1992, prior to passage of the three strikes law. According to the defendant, the plea bargain incorporated by reference the then-existing terms of section 667, which provided a recidivist enhancement of five years for each prior serious felony. (See § 667, sub. (a)(1).) The defendant argued the incorporation of the provisions of section 667 as they stood in 1992 into the plea bargain represented an agreement the 1992 conviction would not be used as the basis for more than a five-year enhancement in future proceedings. (Gipson, supra, 117 Cal.App.4th at pp. 1068-1069.)
In rejecting the defendant's argument, the court in Gipson found the defendant's "plea bargain is ' deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy....' [Citation.] The plea bargain 'vest[ed] no rights other than those which relate[d] to the immediate disposition of the case.' [Citation.] The 1994 amendment to section 667 did not affect the 1992 plea bargain; it did not create or destroy any substantive rights defendant had in the plea bargain. Subsequent to the plea bargain, the Legislature amended the law; defendant committed another crime; defendant became subject to the penalty described in the amended statute. The increased penalty in the current case had nothing to do with the previous case except that the existence of the previous case brought defendant within the description of persons eligible for a five-year enhancement for his prior conviction on charges brought and tried separately. There was no error." (Gipson, supra, 117 Cal.App.4th at p. 1070.)
In the end, the record here will support no more in the way of a plea bargain than what the court considered in Gipson: an incorporation or explanation of the terms of section 667 as it read at the time of the plea and the impact it could have in future proceedings. As in Gipson, such an incorporation or explanation in the prior plea, if it occurred, did not prevent application of the three strikes law in future proceedings.
We do not accept as credible Little's statement the agreement in his case went further and bound him to accept a five-year enhancement even if in the future such enhancements were repealed or reduced. Because the well-established general rule is that defendants get the benefit of future leniency (see In re Estrada (1965) 63 Cal.2d 740, 744-745), it strains credulity to accept that in 1985 either the prosecutor or Little's own counsel would make an agreement depriving Little of any future reduction of the section 667 enhancement, let alone that they would believe such an agreement could be enforced. While the agreement Little describes is ironclad and plainly outside the rationale of Gipson, with due respect, it is also be outside the realm of reality.
We are not willing to remand this case for further proceedings, not only because Little's recollection of the plea bargain lacks credibility, but also because there is no reliable means of establishing what was said during the course of proceedings which took place more a quarter-century ago. The record Little himself has presented shows that neither transcript nor reporter's notes of the plea hearing are available; it would be simply unfair and impractical to ask that the trial judge, attorneys, or court personnel attempt to recollect what was said about Little's 1985 plea. We hasten to add that the inability to establish the actual terms of the 1985 plea bargain was avoidable and is largely Little's responsibility. Had he made this claim at or near the time of his 1994 conviction, it is far more likely the reporter's notes of the 1985 plea hearing would be available.
Davis v. Woodford (9th Cir. 2006) 446 F.3d 957, 961-962, upon which Little relies, is readily distinguishable. There the agreement was not one that protected the defendant against future changes in the law, but rather was an agreement that his plea would only constitute a single conviction. Moreover, the prior plea agreement was established by way of a reporter's transcript, which was available because the defendant promptly raised the issue in state and federal proceedings following his sentencing under the three strikes law.
Little's failure to act diligently on his claim is of course another ground for denying him coram nobis relief. (See People v. Kim (2009) 45 Cal.4th 1078, 1097.)
DISPOSITION
The order denying the writ of error coram nobis is affirmed.
WE CONCUR: NARES, J., McINTYRE, J.