Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA040774
THE COURT:Paul S. Millsap appeals from an order denying a petition entitled, “Writ of Error Coram Nobis, Breach of Contract,” filed on March 29, 2007, which was considered by the trial court as a petition for a writ of habeas corpus and denied on that same date.
We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.
On July 31, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On August 22, 2007, appellant filed a typewritten letter in which he asserts that (1) his 1991 pleas of guilty cannot later be used as two strikes under the three strikes law (§§ 667, subds. (b)-(i), 1170.12) because these convictions are “so closely connected as to have arise[n] from a single act”; (2) his 1991 plea agreement was breached because he was advised only that his prior serious felony convictions could result during a later proceeding in a five-year enhancement; and (3) the plea bargain violated the provisions of Penal Code section 1192.7.
In 1991, pursuant to a plea agreement, appellant entered a guilty plea to two charges of robbery. (Pen. Code, § 211.) As agreed, the trial court sentenced appellant to an aggregate four-year prison term. On March 29, 2007, appellant filed a petition entitled “Writ of Error Coram Nobis” in the trial court. The trial court treated the petition as a petition for a writ of habeas corpus. On that same date, the trial court read and considered the petition and denied it, noting that the petition constituted the same or a similar request to that made and resolved against appellant in an appellate opinion filed on April 26, 2005. Accordingly, the trial court denied the “Writ of Error Coram Nobis.”
All further statutory references are to the Penal Code unless otherwise indicated.
We note that in the same case, No. BA040774, appellant had previously filed a petition for a writ of error coram nobis in an effort to set aside these guilty pleas, which was denied. The trial court’s order was affirmed by this court in an unpublished opinion entitled, People v. Paul S. Millsap, No. B173099, filed April 26, 2005. In that petition, appellant raised a similar contention, as well as two claims based on section 654.
As we explained in our previous opinion, a writ of error coram nobis is reviewed under the abuse of discretion standard. (People v. Ibanez (1999) 76 Cal.App.4th 537, 544-545.) A writ of error coram nobis may be brought for a postjudgment motion to withdraw a plea “whenever a defendant has been induced to enter the plea by misstatements made by a responsible public official.” (People v. Goodrum (1991) 228 Cal.App.3d 397, 400, fn. omitted.) “In this state coram nobis is a limited remedy of narrow scope which is available (where no other remedy exists) to secure relief 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. [Citation.] The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]” (People v. Sharp (1958) 157 Cal.App.2d 205, 207.) “The most critical point is substantial deprivation of the exercise of the free will and judgment of the party through an act participated in by the state.” (People v. Gilbert (1944) 25 Cal.2d 422, 443.)
Also, as the court explained in People v. Shipman (1965) 62 Cal.2d 226, 230, “[t]he 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.] . . . (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. . . .’ [Citations.]”
We read the appellate record and appellant’s supplemental brief, which contains a complete transcript of his 1991 guilty pleas. There are no irregularities in the plea proceedings. It is apparent from the requirements set out in the above authorities that appellant is not entitled to a writ of error coram nobis. We also considered this appeal as a petition for a writ of habeas corpus. That petition is similarly meritless. The petition is repetitive of previous claims made and is procedurally barred as untimely. (In re Clark (1993) 5 Cal.4th 750, 765-768 & fn. 5 [a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of a judgment].) Also, on the merits, appellant has demonstrated no facts entitling him to relief.
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.