Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FBA9369. William Jefferson Powell, IV, Judge.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. William Jefferson Powell, IV, Judge.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
RAMIREZ P.J.
Like the parties, we take the facts from the transcript of the investigating police officer’s testimony at the preliminary hearing on July 20, 2006, which both agreed would serve as the factual basis for defendant’s plea.
In the course of a heated argument on July 1, 2006, defendant Aaron Simpkins (defendant) slapped, punched, and kicked his live-in girlfriend April Smith. He also slapped and threatened her cousin, Augest Caldwell. When Smith and Caldwell got into Caldwell’s car to leave, defendant broke the car window, opened the door, and pulled Smith out of the car by her leg. With a knife in his hand, defendant told Smith that if she ever tried to leave him he would fill her full of slugs and that if he was arrested he would send somebody to her mother’s house in Apple Valley and fill her family full of slugs. The victim believed that this was a real possibility and feared for her life and for her family. She and Caldwell reported the incident to the San Bernardino County Sheriff’s Department. At the time of the report, Caldwell told the sheriff’s deputy that when she went to pick Smith up, she noticed marks on her cousin’s face and saw that she had been crying. As defendant was slapping her, Caldwell said, he yelled and cursed at her and told her that he would do “more than just slap you.” Defendant’s actions made Caldwell very afraid. About a week after the incident, Tammy Moya, who said she had witnessed it, told the investigating officer that she saw Smith and Caldwell yelling at defendant but did not see him put a hand on either woman; she did not see a knife; and she did not see a broken car window.
On July 24, the District Attorney of San Bernardino County filed an Information charging defendant with five felonies and two misdemeanors: assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1); making criminal threats (§ 422, counts 2 & 3); inflicting corporal injury to a cohabitant (§ 273.5, subd. (a), count 4); dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 5); battery (§ 242, count 6); and vandalism (§ 594, subd. (b)(2)(A), count 7.) The Information further alleged that counts 1, 2, and 3 were serious felonies within the meaning of section 1192.7, subdivision (c)(23); that defendant had personally used a knife in connection with counts 2 and 3 within the meaning of section 12022, subdivision (b)(1); that as to counts 1, 2, 3, 4, and 5 he had suffered a prior serious felony conviction within the meaning of section 1170.12, subdivisions (a)-(d) and section 667, subdivisions (b)-(i); and that as to counts 1, 2, 3, and 5 he had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).
All further references are to the Penal Code unless otherwise indicated.
At a pre-trial hearing on September 18, the deputy district attorney newly assigned to the case made defendant a six-year plea bargain offer. The prosecutor noted that defendant had refused earlier offers of four and five years and explained that he was making the present offer—which would be available only for that day—because of problems with potential witnesses. Victim Smith was refusing to testify and another witness said he and his mother, also a witness, could not attend the hearing the next day. The prosecutor also informed the court that he intended to amend the complaint to allege a second strike, assault with a firearm (§ 245, subd. (a)(2).) At defense counsel’s request, the court explained to defendant that if the two strikes were alleged and proven, and if he were convicted of the current charges, he would be subject to a sentence of 25 years to life. However, the court admonished him not to feel pressured by the high exposure and pointed out that a courtroom would be available for his trial the following week.
Defendant returned to the courtroom with his attorney following a one-hour recess and rejected the six-year offer, electing instead to go to trial. Defense counsel assured the court that his client understood all the facts and consequences surrounding the offers. The court then set an Evidence Code section 402 hearing for the following morning, September 19, regarding victim Smith’s anticipated refusal to testify. Should she continue to refuse, the court explained, it intended to hold her in contempt and she would likely be jailed until she was ready to testify, delaying the trial. The court implied that it would treat other recalcitrant witnesses the same way.
Sometime later that day the court received a plea form, signed and initialed by defendant, accepting the six-year offer. Among the initialed boxes was one which declared, “I am not now under the influence of alcohol, or of any drugs, narcotics, medicine, or any other substance which could interfere with my ability to understand what I am doing; nor am I suffering from any condition which could have the [sic] effect.” Another initialed box stated, “I have had sufficient time to consult with my attorney concerning my intent to plead guilty . . . to the above charge(s) (and admit any prior conviction or enhancement). My lawyer has explained everything on this declaration to me and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials on certain boxes on this declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes.” A third box confirmed, “I can read and understand English.” The court asked defendant if he understood every item he had initialed on the form and if he had had adequate time to review the plea and his case and possible defenses with his attorney. “Yes, Sir,” replied defendant. “Do you feel like you need more time either to speak to your attorney about your case or to review this form?” asked the court. “No, sir,” answered defendant.
After refusing to plead guilty to count 1 because of the knife allegation, defendant orally confirmed that he was agreeing to plead to count 2 and would admit the prior strike conviction. In exchange, all of the other counts and allegations were to be dismissed. After again confirming that defendant understood the agreement as well as the jury-trial rights he was giving up by pleading guilty, the court accepted his plea. The court found that “[D]efendant’s plea and wavier were done both orally and in writing. . . . Defendant understands the nature and consequences of his plea as well as each of his constitutional rights. . . . the plea . . . was knowing and intelligent, free and voluntary.”
As agreed, defendant was sentenced to six years in state prison: three years, the upper term, for the section 422 criminal threat felony, doubled because of the prior strike. All of the other charges and allegations were dismissed.
Eight days later, on September 26, defendant sent the court a letter asking to “take back” his plea, claiming that “I did not completely understand do [sic] to my state of mind at the time. I thought I was making the Right decision But I was not I thought I was clear minded but medication had me blinded bye [sic] the fact of Raceing [sic] thoughts. fussy thinking, & so much more. I’m under the mental Health. So please allow me my trail –.” In a postscript, defendant reminded the court that “you said I had 60 days to exesice [sic] my Rights to Appeal this plea.” On October 29, he sent the clerk a hand-written motion to set aside his plea and dismiss the case against him, with a cover letter requesting that the motion be filed. One month later, on November 29, he sent a follow-up letter requesting copies of his motion and various documents related to his case. On December 5 the trial court granted defendant’s request for a certificate of probable cause.
Discussion
Defendant’s claim is essentially that his plea was not voluntary because he was a mental health patient under the influence of an unspecified medication and that these conditions impaired his judgment at the time he made his plea. He argues that the trial court should have construed his letter of September 26 as a motion to withdraw the plea and that it erred by failing to consider and rule on this “motion.” Respondent answers that defendant’s letter is most properly construed as a petition for a writ of error coram nobis which would have been, and should be, denied. We agree with Respondent.
Motion to Withdraw a Plea
A valid motion to withdraw a plea must be made “at any time before judgment” and must demonstrate good cause for the withdrawal. (§ 1018) Good cause is shown if the defendant did not exercise free judgment in entering into the plea. (People v. Cruz (1974) 12 Cal.3d 562, 566.) But an assertion of good cause must be supported by clear and convincing evidence. (Ibid.) A mere non-specific claim of confusion does not constitute clear and convincing evidence of good cause. (Id. at p. 567.)
Here, defendant’s letter was written, posted, and received by the court after the judgment was rendered. Moreover, had the court considered the letter a timely motion to withdraw his plea, the letter merely claimed that defendant’s thinking was fuzzy at the time he pled. The record belies the claim. By his initials in the relevant box, defendant affirmed at the time of his plea that he was not under the influence of any drugs or medicines “which could interfere with my ability to understand what I am doing . . . ” Similarly, he affirmed that he was not suffering from any condition which could have had that effect. Defendant’s actions at trial demonstrated that these adopted statements were reliable. He successfully renegotiated a plea that did not require him to admit the knife allegation. He reasonably reconsidered his initial decision to go to trial on a third strike offense where he would have risked a life sentence, and instead accepted the much shorter offer of six years. If defendant was in fact on medication for an underlying mental illness, it appears not to have caused confusion, but to have clarified his thinking and ability to negotiate on his own behalf. There is no evidence that his plea was anything other than free and voluntary.
Writ of Error Coram Nobis
A post-judgment motion to vacate a judgment is equivalent to a petition for the common law remedy of a writ of error coram nobis. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.) A writ of error coram nobis permits the trial court to reconsider its judgment and give relief from errors of fact. The writ will properly issue only when the petitioner establishes three elements: (1) that some fact existed which without his fault was not presented at trial and which, had it been presented, would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues tried; and (3) that the defendant 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. (People v. Soriano (1987) 194 Cal.App.3d 1470, 1474; People v. Wiedersperg (1975) 44 Cal.App.3d 550, 554.) A trial court’s decision to grant or deny a writ of error coram nobis is reviewed for abuse of discretion. (People v. Ibanez (1999) 76 Cal.App.4th 537, 544; People v. Goodspeed (1963) 223 Cal.App.2d 146, 152; People v. Tuthill (1948) 32 Cal.2d 819, 821.)
Here, even assuming for the sake of argument that the trial court should have construed defendant’s letter as a petition for a writ of error coram nobis, it could not have properly issued the writ. This is because the letter failed to establish at least two of the three elements necessary for a successful petition. The “fact” defendant apparently wanted to assert was that he was on medication for an underlying mental illness. This claimed “fact,” even if true, was obviously known to him at the time of the plea. It was not something he discovered at the time he wrote his letter. Moreover, it is his fault, and his alone, that he did not inform his attorney or the court of this “fact” if he wanted it considered. Nor can we see that even if he had informed his attorney or the court, his action would have prevented the rendition of the judgment. As we have explained, defendant appeared to be thinking very clearly and negotiated well on his own behalf during bargaining with the district attorney.
Defendant has filed a writ of habeas corpus petition which raises the identical argument — that his plea was not voluntary or reasoned because of his underlying mental disability and/or the medications he was taking to treat it. Attached to the writ petition are copies of defendant’s medical records showing that around and before the time of the sentencing hearing he had been prescribed the psychotherapeutic medications Welbutrin, Zoloft, Abilify, and lithium for a bi-polar disorder. Because the issues in the appeal and the petition are identical, we consider them together and reach the same conclusion: that the record belies defendant’s contention that he was confused at the time of the plea. Defendant negotiated very astutely on his own behalf at his sentencing; his medications appeared to have been serving their therapeutic purposes very well. There is simply no evidence in the record to support his belated and self-serving claim to the contrary.
Disposition
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: HOLLEN HORST J., MILLER J.