Opinion
F070713
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSIE SHANE ROSNER, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13909182)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Alan M. Simpson, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
-ooOoo-
INTRODUCTION
On January 30, 2014, appellant Jessie Shane Rosner was convicted of first degree burglary, pursuant to a plea agreement. On December 5, 2014, Rosner filed a petition for a writ of error coram nobis. The trial court denied the writ. Rosner appealed. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On July 29, 2013, Ashley Nelson was in the process of moving from her apartment; personal belongings and furniture were still in the apartment. While she was out, her apartment was entered without her consent and Nelson returned to find the apartment in disarray. It was determined Rosner had entered her apartment.
At the December 4, 2013, preliminary hearing, Nelson was not called to testify. The officer who testified stated Nelson "was staying there still while she was moving, and she was in the process of moving out." The officer did not know if there was a bed or any furniture in the apartment at the time of the burglary.
Pursuant to a plea agreement, Rosner pled no contest to first degree burglary on January 30, 2014, and was sentenced on March 3, 2014, to the low term of four years in prison. On October 10, 2014, a deputy district attorney sent a letter to Rosner's defense counsel, enclosing a copy of a report and stating new information indicated the offense was actually a second degree burglary.
The report sent by the deputy district attorney was prepared October 2, 2014. The report referenced a conversation an investigator had with Nelson on that date. Nelson was asked if she was in the process of moving out of the apartment at the time of the burglary; she indicated she was and that her lease expired on July 31, 2013. She was sleeping at her apartment until July 28, when she moved her bed out of the apartment. She still had furniture and other items in the apartment the evening of July 28 and the day of the burglary. Nelson did not give anyone permission to enter the apartment or remove any property.
On December 5, 2014, Rosner filed a petition for a writ of error coram nobis. The trial court denied the petition. The trial court determined the petition failed to state a prima facie case for relief. Specifically, the trial court noted there was no reason the purported new evidence could not have been discovered before the plea was entered, the purported newly discovered evidence goes to the issues already adjudicated, and the purported evidence does not establish the burglary was other than first degree.
On December 17, 2014, Rosner filed a notice of appeal. On January 8, 2015, this court issued an order stating it was considering dismissing the appeal for failure to state a prima facie case for relief. On February 5, 2015, Rosner's counsel filed a letter asking that the appeal proceed; on March 6, 2015, Rosner filed his own letter asking that this court allow the appeal to proceed. This court ordered the appeal proceed on the merits.
DISCUSSION
Rosner contends the trial court erred in summarily denying the petition for writ of error coram nobis.
Standard of Review
We review the trial court's ruling on the petition for the writ under the deferential abuse of discretion standard. (People v. Kim (2009) 45 Cal.4th 1078, 1095-1096.) The writ of error coram nobis is granted when a petitioner can establish three requirements: (1) some fact existed, which, through no fault or negligence of the petitioner was not presented prior to judgment and would have prevented rendition of the judgment; (2) the newly discovered evidence does not go to the merits of the issues tried and adjudicated; and (3) the newly discovered evidence could not in the exercise of due diligence have been discovered at any time prior to the filing of the petition for the writ. (Id. at pp. 1092-1093.) Relief through a writ of error coram nobis is extraordinary relief. (In re Reno (2012) 55 Cal.4th 428, 453.) All three requirements must be met for a writ of error coram nobis to issue. (People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1146.)
As we discuss below, Rosner has failed to meet his burden of establishing all three requirements.
Analysis
We first note no admissible evidence establishing the purported newly discovered evidence was submitted in support of the petition for writ of error coram nobis. The only information submitted in support of the purported newly discovered evidence was a copy of a report from an investigator containing statements purportedly made by Nelson. Nelson's comments set forth in the report are hearsay; there was no declaration under penalty of perjury from Nelson, or even from the investigator. (Evid. Code, § 1200.)
Rosner's counsel certainly had the ability to contact Nelson; the report set forth her current telephone number and address. If the statements in the investigator's report attributed to Nelson were necessary to establish relief, then Rosner's counsel had the information needed to contact Nelson and obtain admissible evidence. When there is no admissible evidence, a summary denial of a petition for writ of error coram nobis is proper. (People v. Williams (1965) 238 Cal.App.2d 585, 598.)
In addition, assuming we accept the statements in the investigator's report as true, the three requirements for a writ of error coram nobis were not satisfied.
The first requirement, that the fact be one not presented before judgment through no fault or negligence of the petitioner, is not satisfied. (People v. Kim, supra, 45 Cal.4th at pp. 1092-1093.) The purported new fact is that the apartment burglarized by Rosner was not inhabited at the time of the burglary, presumably because Nelson did not consider the apartment to be her place of abode once the bed was removed. If true, there is no reason this information was not available prior to Rosner entering his plea.
The testimony at the preliminary hearing raised the issue of whether the apartment was inhabited or not. The officer testified Nelson was in the process of moving out when the burglary occurred and he did not know whether any furniture was in the apartment at the time of the burglary. There is no reason the facts surrounding the state of the apartment, and whether Nelson still considered that apartment to be her place of residence until the lease expired on July 31, could not have been discovered prior to entry of Rosner's plea. A telephone call or interview of Nelson by defense counsel or a defense investigator would have taken only minutes and provided further facts establishing whether or not the apartment was inhabited.
Prior to a defendant accepting a plea bargain, defense counsel has an obligation to evaluate the charges and the evidence, and to provide the defendant with an informed evaluation of a plea offer. (In re Alvernaz (1992) 2 Cal.4th 924, 933.) Presumably defense counsel did so prior to Rosner's entry of a plea; if not, the facts were readily available to be discovered prior to entry of Rosner's plea. Therefore, Rosner cannot meet the first requirement for relief. (People v. Kim, supra, 45 Cal.4th at pp. 1092-1093.)
The same reasons establishing the first requirement has not been met also establish the third requirement has not been met. (People v. Kim, supra, 45 Cal.4th at pp. 1092-1093.) The third requirement is that through due diligence, the facts could not have been known to Rosner any earlier than the filing of the petition. Here, however, the purported facts reasonably could have been known prior to the filing of the petition and before entry of Rosner's plea. The full facts about the inhabitation of the apartment would have been known if even a rudimentary investigation, in the form of a conversation with Nelson, had been made prior to entry of Rosner's plea in light of the testimony at the preliminary hearing.
Rosner also failed to satisfy the second requirement, that the newly discovered evidence does not go to the merits of the issues adjudicated. (People v. Kim, supra, 45 Cal.4th at pp. 1092-1093.) When entering a plea, either of guilty or no contest, the plea is an admission of all facts necessary to support the conviction. (In re Troy Z. (1992) 3 Cal.4th 1170, 1181; People v. McPherson (2001) 86 Cal.App.4th 527, 529, fn. 2.) Thus, Rosner necessarily admitted there was a factual basis for his plea to a violation of Penal Code section 459 and that includes an admission the apartment was "inhabited."
Furthermore, a challenge to a trial court's finding of a factual basis for a plea is cognizable on appeal. (People v. Palmer (2013) 58 Cal.4th 110, 114.) A writ of error coram nobis is not available when there is a remedy by appeal. (People v. Kim, supra, 45 Cal.4th at p. 1093.)
Finally, any claim Rosner may make that defense counsel rendered ineffective assistance cannot be raised in a petition for writ of error coram nobis. (People v. Kim, supra, 45 Cal.4th at p. 1095.)
DISPOSITION
The December 11, 2014, order summarily denying the petition for writ of error coram nobis is affirmed.
Upon this court's own motion, this appeal is deemed to be in part a petition for writ of habeas corpus. (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4; In re Lawler (1979) 23 Cal.3d 190, 194.)
This court concludes that trial counsel's attempt at the preliminary examination to ask questions relevant to whether the burglary was of the first or second degree (People v. Hernandez (1992) 9 Cal.App.4th 438, 441), the admissions of trial counsel in the petition for writ of error coram nobis, and his declaration that was filed in superior court establish a prima facie showing that trial counsel was ineffective in not obtaining additional information regarding whether the burglary was of the first or second degree before Rosner pled nolo contendere to first degree burglary. Nothing in this opinion would prevent Rosner from raising additional issues in the superior court.
The Department of Corrections is ordered to show cause before the Fresno County Superior Court, when the matter is ordered on calendar, as to why Rosner is not entitled to relief.
Upon finality of this opinion in all courts in this state, the Clerk Administrator of this court is directed to send copies of this opinion, the record, and the pleadings in this case to the Fresno Superior Court. The superior court is directed to deem the petition for writ of error coram nobis to be a petition for writ of habeas corpus and to file it appropriately. Thereafter, the Fresno Superior Court is directed to appoint counsel for Rosner and conduct further proceedings in accordance with the applicable rules of the California Rules of Court, In re Hochberg, supra, 2 Cal.3d 870, and In re Lawler, supra, 23 Cal.3d 190. The written return shall be served and filed on or before 30 days after this opinion becomes final in all courts in this state, or on a date set by the superior court, whichever is later. (In re Hochberg, supra, 2 Cal.3d 870; People v. Barton (1978) 21 Cal.3d 513, 519, fn. 3.)