Opinion
NOT TO BE PUBLISHED
APPEAL from a post judgment order of the Superior Court No. CR136230 of San Diego County, Melinda J. Lasater, Judge.
AARON, J.
I.
INTRODUCTION
Appellant Anthony Owen appeals from the trial court's denial of his petition for a writ of error coram nobis. In 1993, the trial court sentenced Owen to three years probation after he pled guilty to arson of an inhabited structure. Owen apparently set his father's and stepmother's bed on fire in what Owen described as an attempt to commit suicide.
In 2008, Owen petitioned for a writ of error coram nobis on multiple grounds. Owen argued that he was under the influence of strong medications and in a vulnerable mental state at the time he pled guilty to the offense, thereby calling into question the voluntariness of his guilty plea. Owen also contended that his attorney informed him that he would be able to have the record of his conviction sealed if he successfully completed probation, and that Owen later discovered that this was not true. Owen further complained that at the time of his guilty plea, he was not aware of certain facts that could have supported a defense that he lacked the requisite mental state to be convicted of the offense. Owen speculated that the reason he may have been unaware of these facts is because he was temporarily insane at the time he started the fire. The trial court rejected Owen's claims and denied the petition.
On appeal, Owen contends that the trial court abused its discretion in denying his petition, arguing that there were multiple errors of fact of which the trial court was not aware at the time it rendered judgment in his criminal case. We conclude that Owen has failed to demonstrate that he is entitled to coram nobis relief. We therefore affirm the trial court's order denying Owen's petition for a writ of error coramnobis.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On September 21, 1992, Owen's stepmother returned home at approximately 1:30 p.m. and noticed smoke in a hallway of the home. She called for Owen, and he appeared from the bedroom area. Owen told his stepmother that he had ingested cleaning fluid before starting a fire. Owen's stepmother took him to the emergency room. Police detectives interviewed Owen at the hospital. Owen told detectives that he had set fire to the bed in the master bedroom. He explained that he was planning to kill himself by jumping into the fire.
B. Procedural background
On December 29, 1992, Owen pled guilty to one count of arson of an inhabited structure (Pen. Code, § 451, subd. (b)). On March 1, 1993, the trial court sentenced Owen to three years probation. Owen successfully completed probation. On September 6, 1996, the court ordered the accusation against Owen dismissed pursuant to section 1203.4. In accordance with the court's order, the arson conviction was set aside, a plea of not guilty was entered, and the charge was dismissed
Further statutory references are to the Penal Code unless otherwise indicated.
At the time of Owen's offense, section 1203.4 provided in relevant part: "(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing; however, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.
On October 16, 2008, more than 15 years after judgment was rendered in his case, Owen filed a petition for writ of coram nobis in the trial court. The court denied the petition on November 6, 2008. The court gave two reasons for denying the petition. First, "[i]n regard to Petitioner's mental incompetence claim, he has not presented new evidence, but merely points to facts in the record, which were known to the trial judge and his counsel at the time of the plea." Second, "[i]n regard to Petitioner's claim his trial counsel erroneously informed him that upon successful completion of probation the conviction record could be sealed, the California Supreme Court requires that a pleading defendant be advised of the direct consequences of his plea. If the consequence is only collateral, as it is here, no advisement is required." Owen filed a timely notice of appeal on January 2, 2009.
III.
DISCUSSION
Owen contends that the trial court abused its discretion in denying his petition for a writ of error coram nobis. According to Owen, he demonstrated that facts existed at the time of judgment which, if they had been known to the trial court, would have prevented rendition of the judgment. Owen contends that through no fault or negligence on his part, these facts were not presented to the court prior to judgment.
A. The writ of error coram nobis
"The writ of error coram nobis is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown. [Fn. omitted.]" (People v. Kim (2005) 45 Cal.4th 1078, 1091 (Kim).) "'Far from being of constitutional origin, the "proceeding designated 'coram nobis'... "... was contrived by the courts at an early epoch in the growth of common law procedure to provide a corrective remedy "because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment." ' [Citation.]" (Ibid.) "The grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower than on habeas corpus [citation]; the writ's purpose 'is to secure relief, where no other remedy exists, 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]." (Ibid.)
"[T]he writ of error coram nobis '"does not lie to correct any error in the judgment of the court nor to contradict or put in issue any fact directly passed upon and affirmed by the judgment itself. If this could be, there would be no end of litigation.... The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment; and which without fault or negligence of the party, was not presented to the court."' [Citation]" (Kim, supra, 45 Cal.4th at p. 1092.) The remedy of a writ of error coram nobis is granted only "'in the most rare of instances' [citation]" and is "applicable to only a 'very limited class of cases' [citation]." (Ibid.)
The factors set forth in People v. Shipman (1965) 62 Cal.2d 226 (Shipman) "continue to outline the modern limits of the writ [of error coram nobis]. [Citation.]" (Kim, supra, 45 Cal.4th at p. 1093.) In Shipman, the Supreme Court stated, "The writ of [error] 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.'" (Shipman, supra, 62 Cal.2d at p. 230.)
"For a newly discovered fact to qualify as the basis for the writ of error coram nobis, we look to the fact itself and not its legal effect. 'It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts.' [Citation.]" (Kim, supra, 45 Cal.4th at p. 1093.)
"Finally, the writ of error coram nobis is unavailable when a litigant has some other remedy at law. 'A writ of [error] coram nobis is not available where the defendant had a remedy by (a) appeal or (b) motion for a new trial and failed to avail himself of such remedies.' [Citations.] 'The writ of error coram nobis is not a catch-all by which those convicted may litigate and relitigate the propriety of their convictions ad infinitum. In the vast majority of cases a trial followed by a motion for a new trial and an appeal affords adequate protection to those accused of crime. The writ of error coram nobis serves a limited and useful purpose. It will be used to correct errors of fact which could not be corrected in any other manner. But it is well-settled law in this and in other states that where other and adequate remedies exist the writ is not available.' [Citation.]" (Kim, supra, 45 Cal.4th. at pp. 1093-1094.)
B. Analysis of Owen's petition
Owen raises three grounds to support his petition for a writ of error coram nobis. First, Owen contends that his guilty plea was not voluntary because he was under the influence of medications that were prescribed in response to the psychological state he was in when he set the fire.
Second, Owen contends that his guilty plea was involuntary because his defense attorney told him and his father that if Owen successfully completed probation, the record of his arson conviction would be sealed. According to Owen, he agreed to plead guilty based on this representation. Owen further contends that the trial court had a duty to properly advise him that his record would not be sealed, because, according to Owen, his attorney's representations, together with the language of the Penal Code and the language on certain judicial forms, constituted an "official" misrepresentation that the trial court had a duty to correct.
Third, Owen contends that "he was most likely legally insane at the time he committed the crime charged, " but that this defense was not presented to the court. He maintains that the failure to present this defense to the court was not his fault, since he was likely insane or incapacitated at the time, and thus bears no responsibility for not having raised the defense. Owen contends that the trial court "ignored" this argument and failed to address it in responding to his petition for a writ of error coram nobis.
We conclude that the trial court acted well within its discretion in denying Owen's petition. First, although Owen contends that the record demonstrates that he acted diligently in pursuing coram nobis relief, we disagree. In addition, we conclude that each of the bases of Owen's claim that that he is entitled to coram nobis relief fails on its merits.
1. Lack of sufficient diligence
"'It is well settled that a showing of diligence is [a] prerequisite to the availability of relief by motion for coram nobis' [citations], and the burden falls to [a] defendant 'to explain and justify the delay' [citation]." (Kim, supra, 45 Cal.4th at p. 1096.) "[W]here a defendant seeks to vacate a solemn judgment of conviction... the showing of diligence essential to the granting of relief by way of coram nobis should be no less than the similar showing required in civil cases where relief is sought against lately discovered fraud. In such cases it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts, or of the legal conclusion of diligence, is insufficient.' [Citations.]" (Id. at pp. 1096-1097, italics omitted.)
The diligence that a petitioner must show in order to obtain coram nobis relief is similar to that applied to petitions for writs of habeas corpus-i.e., to show, with specificity "when the 'petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.' [Citation.]" (Kim, supra, 45 Cal.4th at p. 1097.) The requirement of diligence "is not some abstract technical obstacle placed randomly before litigants seeking relief, but instead reflects the balance between the state's interest in the finality of decided cases and its interest in providing a reasonable avenue of relief for those whose rights have allegedly been violated." (Ibid.) "Nor is the diligence requirement for coram nobis unique, for in addition to habeas corpus petitions, we require diligence for other types of collateral attacks on the validity of a plea. [Citations.]" (Id. at pp. 1097-1098.)
Owen contends that he demonstrated that he was not aware of sufficient facts to support his petition until the time he filed the petition. However, the record demonstrates otherwise. Owen did not bring this petition until 15 years after judgment was entered in his case. He maintains that he did not have access to certain reports that provide the basis of his claims, or that he simply was not aware of the fact that his record could not be sealed until he did further research on the topic. However, Owen fails to explain why it took him so long to seek these reports or inquire into the possibility of sealing his record. It was clear at the time the court dismissed the accusation against Owen that his record was not being sealed. At the very least, Owen had constructive notice that his record was not sealed, and it was incumbent on him to take reasonable steps to determine whether the sealing that he believed would take place did, in fact, occur.
To the extent that Owen claims that he was under the influence of medications that precluded him from voluntarily entering a guilty plea, he has failed to demonstrate that his delay in pursuing this remedy was reasonable. Owen contends that he "was not aware of all the facts necessary to pursue his writ in 1993, when he gave his probation interview." According to Owen, at the time of the probation interview, he "could not even remember the names of the medications he was taking let alone the amounts and the powerful side effects of those medications." He concludes, therefore, that "there is nothing in the record to demonstrate that either appellant or the trial court or appellant's counsel knew this critical information about appellant's mental state at the time of the plea or sentence." However, Owen and his attorney were clearly on notice that Owen was taking medications at least by the time of sentencing, as evidenced by Owen's own statements about the medications as set forth in the probation report. Owen told the interviewer that he "ha[d] been prescribed antidepressant medication, antipsychotic medication, and antiseizure medication, although [he] was unsure of the medical names for the medications." Owen was on notice of the fact that he had been taking medications, and there is nothing in Owen's petition explaining why he did not inquire into this issue at an earlier point in time.
The same is true as to Owen's claim that there were facts which, if known, might have led the trial court to "believe[] [that Owen] had a meritorious defense to the charge of arson because he did not act with malice." According to Owen, if such facts had been presented to the trial court, the court "could not have accepted the plea." Owen suggests that "[u]ntil [he] received the investigator's report from the public defender's office after they finally located his file in February 2008, after a wait of one year and eight months during which time appellant diligently tried to obtain this file, appellant was unaware that the trial court accepted his guilty plea and his defense counsel advised him to plead guilty under the misimpression caused by [the fire investigator's] report...."
Among the "misimpressions" that Owen claims his attorney and the court were acting under at the time of the guilty plea were the location of the fire's origin (floor versus bed); the reason Owen's attempt to extinguish the fire was unsuccessful (fire had gotten too big versus the bed being too heavy to flip because it was mechanical); and Owen's ability to form the requisite intent (sanity versus insanity). However, Owen fails to explain why it took him over ten years to request his file from the public defender's office. The one-year-eight-month delay in obtaining the file was short in comparison with the time that Owen allowed to pass before requesting the file.
Owen has not demonstrated the requisite diligence necessary to obtain relief by way of coram nobis. This ground, alone, provides a sufficient basis for affirming the trial court's denial of Owen's petition.
2. The merits of Owen's claim
Overlooking the procedural flaws in Owen's petition, we conclude he has not shown "'"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."' [Citation.]" (Kim, supra, 45 Cal.4th at p. 1093.)
Owen asserts, as purportedly "new" facts, the following: (1) that he was mentally ill and under the influence medications with strong side effects that may have rendered him unable to enter a voluntary plea; (2) that his attorney misinformed him of the legal consequences of pleading guilty by telling Owen that he could have his record sealed if he successfully completed probation; and (3) that the court and his defense attorney were under certain misimpressions about the evidence, such that they were not aware that Owen may have been temporarily insane at the time he set the fire. None of these purported new facts supports the granting of coram nobis relief.
a. Influence of medications and mental illness
Owen's claim that he was under the influence of prescription medications and suffering from mental illness at the time he pled guilty is insufficient to warrant coram nobis relief because these are not facts that were unknown to the court or to Owen, himself, at the time judgment was entered. The trial court was clearly aware, at least by the time of sentencing, that Owen was taking medications to treat his mental issues, since the probation report so indicated. In addition, the fact that Owen was receiving psychiatric assistance for mental illness was also evident from the probation report.
Owen nevertheless contends that the trial court was not made aware of the "names of the medications or the amounts of medication [Owen] was taking" or the "side effects of the powerful psychiatric medications." He asserts that "these new facts subsequently discovered by appellant were the final facts necessary to justify granting the writ because... these new facts would have raised a doubt in the trial court's mind as to appellant's competency and would have prevented rendition of the judgment."
We reject the notion that the trial court would have viewed the situation differently if the court had been provided information about the names and quantities of the medications that Owen was taking at the time he entered his guilty plea. Further, as noted above, the defense could have presented this information at the time Owen pled guilty, or at the time of his sentencing. The information was available at that time, and nothing prevented Owen or his attorney from gathering this information and presenting it to the court. At a minimum, there is no reason that Owen could not have presented this claim years before he finally did, since he was on notice that he had been given medications while in treatment for mental health issues and could have inquired about those medications at any time during or after the proceedings in question.
To the extent that Owen contends that he was personally unable to share this information with the court as a result of his mental illness at the time, he is bound by his counsel's failure to do so. Further, to the extent that Owen might argue that defense counsel rendered ineffective assistance in failing to present this information to the court, such a claim must be brought by way of a petition for a writ of habeas corpus, not coram nobis. (See Kim, supra, 45 Cal.4th at pp. 1099, 1104 [coram nobis relief unavailable where defendant "could have petitioned for a writ of habeas corpus" but failed to do so; additionally, a claim that counsel was ineffective "relates more to a mistake of law than of fact" and "is an inappropriate ground for relief on coram nobis"].)
b. Misunderstanding of legal effects of guilty plea
Owen contends that his guilty plea was induced by material misinformation provided to him by his attorney, to the effect that his conviction could be sealed if he successfully completed probation. As the People point out, however, Owen's misunderstanding about the potential collateral effects of pleading guilty to arson of an inhabited structure constitutes a mistake as to the legal effect of the plea of guilty, not a mistake of fact. Owen responds by claiming that the People are incorrect in this assertion. Owen argues that he "knew the legal effect of his guilty plea would be that he would suffer a conviction, " but that his "belief that his record would be sealed at some point was a mistake of fact because at the time of plea and sentence and even now it was and is factually impossible to seal a criminal record." This argument is meritless. A misunderstanding as to the legal effect of a dismissal pursuant to section 1203.4, i.e., that it does not have the effect of entirely erasing a conviction and does not provide for the sealing of such information, is a mistake of law, not of fact.
Just as the defendant in People v. McElwee (2005) 128 Cal.App.4th 1348, 1351-1353, was mistaken as to the legal effect of his conviction because he was under the misimpression that he would serve no more than 15 years in prison as a result of his conviction, so, too, was Owen mistaken as to the legal effect of his conviction because he was under the misimpression that the record of his conviction could be sealed if he successfully completed probation. "'It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts.' [Citation.]" (Kim, supra, 45 Cal.4th at p. 1093.) Owen mistakenly believed that if he were to plead guilty to the arson offense, it would be possible to eventually have the conviction sealed.
Even if Owen's mistaken understanding of the effect of his plea of guilty was a mistake of fact and not law, it nevertheless would not support issuance of a writ of error coram nobis. "'To qualify for issuance of the writ, the alleged facts must be such that if presented would have prevented the rendition of the judgment."' [Citation.]" (Kim, supra, 45 Cal.4th at p. 1102.) In other words, "[t]o qualify as the basis for relief on coram nobis, newly discovered facts must establish a basic flaw that would have prevented rendition of the judgment." (Ibid., citing Shipman, supra, 62 Cal.2d at p. 230 and People v. Trantow (1986) 178 Cal.App.3d 842, 845 [defendant's ignorance that her alien status might result in deportation would not have "prevented" the judgment].) "New facts that would merely have affected the willingness of a litigant to enter a plea, or would have encouraged or convinced him or her to make different strategic choices or seek a different disposition, are not facts that would have prevented rendition of the judgment." (Kim, supra, 45 Cal.4th at p. 1102.) Owen's knowing that his conviction could not be sealed is not the type of information that would have prevented the rendition of the judgment. Rather, it is information that may have affected his willingness to enter a plea or encouraged him to make a different strategic choice. It is thus insufficient to qualify for coram nobis relief.
Finally, to the extent that Owen is claiming that his attorney provided ineffective assistance by misadvising him that his conviction could eventually be sealed, we again note that it "has long been the rule" "[t]hat a claim of ineffective assistance of counsel, which relates more to a mistake of law than of fact, is an inappropriate ground for relief on coram nobis." (Kim, supra, 45 Cal.4th at p. 1102.) Any claim that an attorney has failed to properly advise his or her clients "should be raised in a motion for a new trial or in a petition for a writ of habeas corpus. [Citations.]" (Ibid.)
Owen also appears to assert that the trial court had a duty to inform him that his record would not be sealed pursuant to section 1203.4. Owen cites no authority in support of this contention, but instead argues that the text of both the statute and of the Judicial Council form entitled, "Order Dismissing Accusation Against Probationer" would "lead a reasonable person to believe based upon this official pronouncement of law by the [L]egislature that the record of conviction could be sealed under [section 1203.4]." We disagree with Owen's contention, since the general presumption is that no record of conviction for an adult may be sealed. We see no reason to impose on the trial court a duty to inform defendants that their records of conviction will not be sealed.
c. Insanity defense
In his opening brief, Owen contends that the trial court "failed to even address appellant's argument in his petition that he was most likely legally insane at the time he committed the crime charged." Owen asserts that it was not until he received the fire investigator's report in February 2008 that he became aware of "the existence of evidence supporting his defense that he was temporarily insane at the time of the crime and [t]hat he lacked the intent to commit arson." The evidence that Owen relies on to "support[] [his] claim he was trying to commit suicide" included statements in the report indicating "that a carpet [s]pot remover container was found on the counter in the hallway bathroom and that the container had a blue liquid in it that smelled like window washing fluid." According to Owen, "[b]ecause carpet cleaner does not have this appearance, it supports appellant's claim that he mixed ammonia into the bottle of carpet cleaner and drank it in an attempt to kill himself." Owen further contends that the report provides evidence that he was "sweating at the time of the crime, which supports his claim that he was desperately trying to extinguish the fire by running back and forth from the bathroom carrying water in the trashcan and dumping it on the bed...."
Putting aside the question whether the "evidence" that Owen cites actually constitutes evidence that speaks to the issue of his sanity at the time of the fire, Owen has not demonstrated that these facts were new, or that they were not available to him or to his attorney at the time he pled guilty. Even if his attorney did not have access to the report (although this seems highly unlikely, since Owen eventually retrieved the report from his public defender's file), it is clear that Owen's attorney and the court were aware that Owen had claimed that his intention was to commit suicide when he set the fire. Specifically, the probation report recites the fact that Owen told detectives that he had ingested cleaning fluid before setting the fire. It is therefore difficult to see how one could conclude that evidence that "supports [Owen's] claim that he mixed ammonia into the bottle of carpet cleaner and drank it in an attempt to kill himself, " constitutes evidence of a new fact of which the trial court was not aware. It seems clear from this record that from the very beginning, everyone involved in this case understood that Owen was claiming that he started the fire in an attempt to commit suicide, and that he was suffering from mental problems at the time. It does not appear that the fire investigator's report raised any "new" facts that were previously unavailable to the court; even if it did, Owen had ample opportunity to seek out this report long before he did so.
For example, it is unclear why evidence that Owen was "desperately trying to extinguish the fire" would support an insanity defense.
At Owen's arraignment, the prosecutor informed the court that there was evidence that Owen "set the fire as part of a suicide attempt." Defense counsel mentioned that Owen was "currently undergoing psychiatric treatment." Owen's father told the court that Owen had "spent... two weeks at Southwood Hospital and spent an additional two weeks full time as an out-patient and is currently seeing his psychiatrist every other week. He is taking medication from the psychiatrist."
IV.
DISPOSITION
The order denying Owen's petition for a writ of error coram nobis is affirmed.
WE CONCUR: McConnell, P. J., HALLER, J.