Opinion
A151316
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN ROUNDTREE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC016881A)
In 1987, as part of a plea bargain, Richard Allen Roundtree entered pleas of no contest to two counts of oral copulation in concert (Pen. Code, § 288a, subd. (d)). The convictions were charged as strikes in a subsequent case, resulting in a third strike sentence of 50 years to life. In 2016, Roundtree filed a petition for writ of error coram nobis in the instant case, alleging his plea agreement to two counts of oral copulation was unlawful because he had committed only a single offense. The trial court denied the petition, finding the two counts were based on two separate acts of forced oral copulation against the same victim on the same day, and Roundtree unjustifiably failed to raise the issue on direct appeal.
Assigned counsel submitted a Wende brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Roundtree was advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court's attention. Roundtree filed a supplemental brief which we have considered. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.) We find no arguable issues and therefore affirm.
People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND
The facts are taken from the preliminary hearing transcript. The trial court relied on the transcript in making its factual findings. We do not discuss the evidence underlying charges dismissed as part of the plea bargain in this matter.
In August 1986, a woman was forced into a vehicle with five men, one of whom was Roundtree. After driving to a more secluded area, everyone got out of the car. The driver, Edmond Wolfgram, told Roundtree to put the victim back in the car and Roundtree did so. Wolfgram unzipped his pants and told the victim to suck his penis. She initially refused and was threatened by one of the other men. Roundtree pushed her face into Wolfgram's lap, and Wolfgram forced her face onto his penis. Roundtree helped restrain the victim by sitting on her legs while Wolfgram had his penis in her mouth. After Wolfgram got out of the car, another man entered and shoved his penis into the victim's mouth and another shoved his penis into her vagina. Thereafter, Roundtree put his penis in her mouth. The men eventually drove away, leaving the victim behind.
Roundtree was charged, inter alia, with aiding and abetting and acting in concert with others to commit rape (Pen. Code, § 261, subd. (a)(2)), three counts of forcible oral copulation (id., § 288a, subd. (d)), and sodomy (id., § 286, subd. (d)). On December 15, 1986, Roundtree, with the assistance of counsel, entered pleas of no contest to two of the forcible oral copulation counts, with the remaining charges and special allegations dismissed. The plea terms included an agreement that Roundtree would serve no more than seven and one-third years at the California Youth Authority. The court found a knowing, intelligent and voluntary waiver of rights, and sentenced Roundtree to consecutive terms of five years and two years four months.
The seven-count information charging Roundtree and three codefendants also included charges of robbery (Pen. Code, § 211) and kidnap (id., § 207), with an allegation that the kidnapping was committed with the intent to commit rape (id., § 667.8).
Currently known as the Division of Juvenile Justice.
On September 27, 2016, Roundtree filed pro se a petition for writ of error coram nobis seeking to vacate the judgment of conviction. He alleged his plea was unlawful, and his sentence unauthorized, because the offenses of which he was convicted were "identical statement[s] of the same offense" and violated the "same element test." He also asserted that one of the two crimes was a "necessarily lesser included offense of the other."
In his pro se supplemental brief, Roundtree alleges here, without reference to any supporting record, that his plea agreement was the result of an "unlawful negotiated plea settlement," constituting a "denial of due process of law." He contends his plea was "induced by misstatement of facts, mistake, and coercion."
By written order of April 18, 2017, the court denied the petition. Relying on the testimony presented at the preliminary hearing, and the consecutive sentences originally imposed, the court found that Roundtree had been convicted of two separate acts of forced oral copulation against the same victim on the same day. The court further found that the petition raised only questions that could have been raised on direct appeal from the judgment of conviction and Roundtree failed to demonstrate valid reasons for not attacking the convictions earlier.
DISCUSSION
The appeal fails as a matter of law. The writ of error coram nobis is a nonstatutory, common law remedy, the purpose of which " '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.' " (People v. Kim (2009) 45 Cal.4th 1078, 1091.) A nonstatutory motion to vacate the judgment is recognized as equivalent to a petition for the common law remedy of a writ of error coram nobis. (Id. at p. 1096.) The writ is "granted only when three requirements are met . . . : (1) The 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. (2) The 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. 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. (3) The 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 petition for the writ. . . . [¶] Because the writ of error coram nobis applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, the remedy does not lie to enable the court to correct errors of law." (People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1146-1147, final italics added.)
Here, Roundtree presented no new or unknown facts—he challenges the validity of his plea and alleges an error of law (i.e., that his sentence "violated both Penal Code sections 954 and 654") and the writ is not available. Further, a 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. . . . 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.' " (People v. Kim, supra, 45 Cal.4th at pp. 1093-1094.)
The record also demonstrates that the premise for Roundtree's petition is factually incorrect. Roundtree was convicted by plea of two of three separate acts of forcible oral copulation on the victim, committed in concert with his codefendants. The fact that he personally committed a single act is irrelevant.
We find no arguable issues.
DISPOSITION
The order denying the petition is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.