Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. TA052620, Dean E. Farrar, Judge.
Michael S. Evans, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Julio Cesar Lizarraga appeals from an order of the superior court denying a writ of error coram nobis. For reasons explained in the opinion, we affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
On March 20, 2006, Lizarraga filed a petition for writ of error coram nobis to vacate the judgment entered against him on February 17, 1999. He asserted that on January 12, 1999, in case number TA052620, pursuant to a plea bargain, he pled guilty to the crime of attempt to burn in violation of Penal Code section 455. He claimed he pled guilty only because his trial counsel, Deputy Public Defender Ary Degroot, informed him that he was not pleading guilty to a serious, violent or strike felony charge. The representations of trial counsel were corroborated by the trial court. Prior to taking the plea, the court did not advise him that the charge he was pleading to was a serious, violent or strike felony.
Appellant also asserted these representations were further corroborated when he was charged in a subsequent case and the complaint and information did not contain an allegation of a prior strike for his attempt to burn conviction. Additionally, when he entered pleas, he was not required to admit a prior strike conviction and when he was sentenced, he was not sentenced as though he had a prior strike.
Appellant asserted the representations made by trial counsel prior to pleading guilty were not true, but at the time they were made, appellant believed them to be true. Relying on the representations, he agreed to forgo a trial by jury. Appellant did not learn these representations were untrue until after judgment and sentence had been imposed when on or about August 19, 2005, he was charged with numerous offenses and it was alleged that he had a prior conviction on January 12, 1999, of a serious or violent felony pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i)), to wit, attempt to burn (Pen. Code, § 455).
Appellant asserted he was prejudiced by the incorrect advice because there was a reasonable probability he would have succeeded at trial or received a disposition rendering him guilty of a lesser, nonstrike offense. He stated he was arrested and charged with attempt to burn after he threw a wrapper into a commercial lot where Christmas trees were being sold. The wrapper came into contact with a lighted cigarette causing some sparks or embers to make contact with the commercial lot. There was no fire damage to any Christmas trees, property or the commercial lot. He asserted there existed a reasonable probability the prosecution would have been unable to prove he had the necessary intent.
Appellant is now facing a mandatory state prison sentence, double the base term of the sentence imposed for his new offenses and is required to serve 80 percent of his sentence. No appeal was taken from the judgment and the time for appeal has passed. He has no other plain, speedy, or adequate remedy available.
On April 5, 2006, appellant’s petition was denied.
DISCUSSION
“A writ of error coram nobis is reviewed under the standard of abuse of discretion. [Citations.]” (People v. Ibanez (1999) 76 Cal.App.4th 537, 544.) “A writ of coram nobis permits the court which rendered judgment ‘to reconsider it and give relief from errors of fact.’ [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 presented 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.]” (People v. Soriano (1987) 194 Cal.App.3d 1470, 1474.) “‘The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]’ [Citation.]” (People v. Ibanez, supra, 76 Cal.App.4th at p. 545.)
A serious felony within the meaning of the Three Strikes law is a serious felony listed in subdivision (c) of Penal Code section 1192.7. (Pen. Code, § 667, subd. (a)(4) (Stats. 1994, c. 12 (A.B. 971), § 1, eff. March 7, 1994); Pen. Code, § 1170.12, subd. (b)(1) (Added by Initiative Measure (Prop. 184, § 1, approved Nov. 8, 1994.) In 1998 Penal Code section 1192.7 provided that attempted arson was a serious felony. (Pen. Code, §§ 1192.7, subds. (c)(14), (27).) A prior conviction for attempt to burn in violation of Penal Code section 455 is and at all times relevant was a serious felony within the meaning of Penal Code section 1192.7. (People v. Flores (1995) 39 Cal.App.4th 1811, 1813-1814.)
Appellant’s claim that he was misadvised by his trial counsel that he was not pleading to a serious or violent felony does not constitute any new fact that was not presented to the court. His claim, rather, is a mistake of law attributed to his trial counsel and coram nobis does not lie for a claim of ineffective assistance of counsel. (See People v. Ibanez, supra, 76 Cal.App.4th at p. 545; People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983.)
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.