Opinion
B164565
10-20-2003
THE PEOPLE, Plaintiff and Respondent, v. RAYMUNDO PLACENCIA, Defendant and Appellant.
Edmundo Espinoza for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephen A. Mcewen and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.
Raymundo Placencia appeals from the order denying his petition for writ of error coram nobis. In 1993, he pleaded guilty to several narcotics related offenses and was sentenced to two years in state prison. Placencia contends the denial of his petition for writ of error coram nobis must be reversed because he was deprived of his right to counsel during plea proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Placencia was charged by information with conspiracy, transporting more than four kilograms of a controlled substance and possessing for sale more than four kilograms of a controlled substance. (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, §§ 11352, subd. (a), 11351, 11370.4, subd. (a)(2).) It was also alleged, as to the latter two counts, that a principal was armed with a firearm. (Pen. Code, § 12022, subd. a)(1).)
On May 24, 1993, based on a factual representation to the court, Placencia entered an open plea for an indicated sentence of two years. At the hearing, Edward Zamarripa, counsel for a codefendant in the case, appeared in lieu of Placencias counsel, Donald Hartwig.
Before the plea, the court had the prosecutor take the waivers. The prosecutor asked whether Placencia agreed to have Zamarripa stand in for Hartwig. Placencia expressly consented to be represented during the plea proceedings by Zamarripa. The prosecutor then advised Placencia of all requisite constitutional rights attendant to the plea. (Boykin-Tahl rights.) Placencia explicitly acknowledged he had a right to counsel at all stages of the proceedings and was presently represented by Zamarripa.
The court made a finding that Placencia knowingly and intelligently waived his constitutional rights, and freely and voluntarily entered pleas of guilty to all charges. The court imposed a two-year term.
The record does not contain a reporters transcript of the sentencing hearing.
Placencia was thereafter charged with federal narcotics offenses, which his 1993 state narcotics convictions could potentially enhance. (21 U.S.C. §§ 851; 841.)
On May 3, 2002, Placencia filed a petition for writ of error coram nobis in the superior court challenging the validity of his 1993 state convictions and seeking to vacate the judgment. In the petition, Placencia asked to withdraw his guilty plea arguing he was denied his right to counsel at the time of the plea. He explained his petition was not filed earlier because, until the federal narcotics charges in 2002, he was unaware that his right to counsel had been violated. Placencia asserted the federal charges expose him to a potential 20-year sentence, part of which is a 10-year enhancement due to his 1993 narcotics convictions.
After reading and considering the petition, the superior court denied it on September 18, 2002. The court determined the petition was untimely and the record failed to show Placencia was deprived of his right to counsel.
DISCUSSION
On appeal, Placencia maintains he is entitled to withdraw his plea due to the denial of his Sixth Amendment right to counsel. We disagree.
A writ of coram nobis properly issues when the petitioner can establish three elements: "`(1) that some fact existed which, without his fault or negligence, was not represented 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. Ibanez (1999) 76 Cal.App.4th 537, 544.) We review the denial of a petition for writ of error coram nobis for abuse of discretion. (Ibid.)
Placencias petition for coram nobis relief was untimely and he failed to provide any cognizable explanation for the nine-year delay. As the superior court noted, "there is no showing why the matter could not have been raised well prior to 2002, since [Placencias] plea was entered approximately 9 years ago." (See In re Watkins (1966) 64 Cal.2d 866, 870-872.)
To justify the delay, Placencia avers he was ignorant of the Sixth Amendment violation until he faced federal charges. However, his claim only raises a legal issue, which is inappropriate for consideration under a writ of error coram nobis. He is not attributing the delay to facts in existence at the time of his plea which, without his fault, were not presented to the court. (People v. Ibanez, supra, 76 Cal.App.4th 537, 544-546; People v. Tapia (1964) 231 Cal.App.2d 320, 321-323.)
Nor does Placencias claim of a denial of his right to counsel have merit. The thrust of his complaint is that he was deprived of this right because his attorney did not appear at the time of his plea. However, the superior court determined "the mere fact that an attorney `stood in for [Placencias] counsel, with the agreement of [Placencia], during a change of plea hearing, is insufficient to even raise an inference that [Placencias] right to counsel was violated. The plea transcript shows a knowing, voluntary, and intelligent waiver and plea, and a sentence of exactly what [Placencia] bargained for."
The superior courts conclusion is correct. Nothing in the record indicates his counsel at the time of the plea was constitutionally ineffective. Placencia agreed to have co-counsel stand in for his attorney when his plea was taken. Absent additional facts establishing how "stand in" counsel adversely affected the plea, Placencias assertion he was deprived of his right to counsel is unavailing. (See Gideon v. Wainwright (1963) 372 U.S. 335; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 688.)
DISPOSITION
The order under review is affirmed.
We concur: JOHNSON, Acting P. J. & WOODS, J.