Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Los Angeles County Super. Ct. No. A558442
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Glen Mason (Mason) appeals from the trial court’s order denying his petition for writ of error coram nobis. On May 3, 1979, Mason pled guilty to two counts of second degree burglary (Pen. Code, § 459) and was granted three years probation on the condition he serve the first eight months in county jail. On December 12, 2006, Mason filed in the superior court a petition for writ of error coram nobis, alleging use of his 1979 convictions to enhance his sentence in a 1997 Orange County Superior Court case was improper. Mason urged use of his 1979 convictions in this way amounted to a “direct breach of the contract or negotiated plea entered into with the State/Government [i]n . . . 1979.”
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm the judgment (order denying the petition for writ of error coram nobis).
FACTUAL AND PROCEDURAL BACKGROUND
At proceedings held on May 3, 1979, Mason waived his right to a jury trial, the right to confront and cross-examine the witnesses against him and his privilege against self-incrimination, then pleaded guilty to two counts of second degree burglary in Los Angeles County Superior Court case number A558442. When the trial court asked Mason if the statement made on the plea form, that Mason “ ‘entered the two residences referred to in Counts I and II during the daytime with the intent to steal . . . personal property’ ” was correct, Mason responded, “Yes, ma’am.” When the trial court then asked Mason if he understood he was “pleading to two felonies,” Mason again responded, “Yes.”
Mason was sentenced on June 21, 1979. The trial court suspended imposition of sentence and placed Mason on probation for a period of three years on the condition he spend the first eight months in county jail. After informing Mason of the additional terms of his probation, the trial court commented, “Now, if you commit a violation of probation, the Court is ready to send you to State Prison or CYA . . . .”
On August 29, 1983, a hearing was held pursuant to Mason’s “demand for a hearing.” The box next to the following statement on the minute order was checked: “Probation reinstated and continued on same terms and conditions, except for modification.” A notation on the minute order indicates Mason “is presently serving a state prison sentence. In view of the above, [the] People move to terminate probation [i]n this case. Motion is granted. [Mason] is ordered returned to state prison.” In addition, a box at the bottom of the minute order and next to the following statement was checked: “Probation is ordered terminated pursuant to Sec. 1203.3 Penal Code without dismissal.” The words “without dismissal” are handwritten onto the form.
At proceedings held on November 14, 1997, the Orange County trial court conducted a hearing regarding Mason’s prior convictions. The court found that, in addition to numerous other prior convictions, on May 3, 1979, Mason suffered a prior serious felony conviction in Los Angeles County case number A558442 within the meaning of section 667, subdivision (a)(1). The trial court further found Mason had suffered a prior felony conviction in the same Los Angeles case pursuant to section 667, subdivisions (d) and (e), and section 1170.12, subdivisions (b) and (c), the “Three Strikes” law. The Orange County trial court apparently relied on, among other prior convictions, Mason’s 1979 burglary convictions to enhance Mason’s sentence for a 1997 burglary conviction in Orange County case number 96CF3623.
The minute order from the Orange County Superior Court indicates that, in addition to the 1979 Los Angeles priors, Mason suffered prior felony convictions in Orange and Riverside counties in 1980, 1982, 1985, 1989 and 1991.
Acting in propria persona, on December 12, 2006, Mason filed in the Los Angeles County Superior Court a petition for writ of error coram nobis, seeking to vacate the “judgment rendered against him” in 1979. In his petition, Mason appeared to be arguing that, by allowing the Orange County Superior Court to use his prior Los Angeles convictions to enhance his sentence, the Orange County court violated the terms of the Los Angeles plea agreement by “subjecting [him] to more onerous punishment than was agreed to in the [negotiated plea agreement or] contract.” Mason continued, stating, “It was [his] ‘settled expectation’ that when the [trial] court suspended proceedings and granted probation that both [burglary] counts of the plea became ‘misdemeanors for all purposes’ once [he] fulfilled the terms and/or conditions of probation.” (Emphasis in original.) Mason argued it was clear he had fulfilled the terms of his probation because, in the “chronological listings” portion of a “case summary,” it is noted that on “8-29-83,” his probation was “terminated.” However, the “summary” does not indicate why probation was terminated and lists as a “release date” January 25, 1985.
Mason further argued that, in entering his 1979 plea, he had not agreed that the burglary convictions could be used in any later proceedings. Mason stated, “At the time of the [plea] agreement(s) the state could not have believed that [he] understood his agreement to mean that his convictions were subject to additional consequences and implications under subsequently enacted laws.” Although Mason recognized that “courts need not advise on collateral consequences of a plea,” he urged such a rule did not apply in his case because his plea agreement was essentially a “contract.” Finally, Mason urged he was entitled to withdraw his 1979 plea because he was “obviously incorrectly advised about the maximum and the direct consequence as well as the collateral consequences of his plea, therefore, the government breached the plea bargain.” Had he known his 1979 plea of guilty to the two burglaries would result in use of those convictions for the purpose of enhancing his sentence at later proceedings, he would not have entered the plea.
On December 12, 2006, the Los Angeles County Superior Court heard and denied Mason’s petition for writ of error coram nobis. The court ruled: “Coram nobis is a post judgment remedy of narrow scope and is the equivalent of a motion to vacate a judgment. (People v. [Mason] (1958) 163 Cal.App.2d 630, 632; see Pen. Code, § 1265.) The writ lies only where all of the following conditions exist: (1) a factual error existed at the time of judgment; (2) the fact does not appear in the record and does not involve the merits of the issues tried; (3) the fact was not introduced at trial either because it was not discovered at that time without the fault or negligen[ce] of the defendant, or because of fraud, duress, or excusable mistake; and (4) knowledge of the fact would have prevented rendition of the judgment. (See People v. Shipman (1965) 62 Cal.2d 226, 230; People v. Gallardo (2000) 77 Cal.App.4th 971, 987; People v. Esquibel (1975) 44 Cal.App.3d 591, 594; People v. Wiedersperg (1975) 44 Cal.App.3d 550, 554.) [¶] Petitioner has failed to establish that ‘knowledge of the fact would have prevented rendition of the judgment’ in this case.” (Emphasis in original.)
Mason filed a timely notice of appeal from the trial court’s ruling on January 2, 2007.
This court appointed counsel to represent Mason on appeal on May 15, 2007.
CONTENTIONS
After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed August 16, 2007, the clerk of this court advised Mason to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Mason’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment (order denying the petition for writ of error coram nobis) is affirmed.
We concur: KITCHING, J., ALDRICH, J.