Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 5358
Reardon, Acting P.J.
The trial court denied appellant Jose Luis Vogel-Leyva’s petition for writ of error coram nobis. Vogel-Leyva sought to set aside his guilty plea underlying a 1986 conviction of possession of heroin for sale, claiming that he had been unaware of a fact-based defense to a probation ineligibility allegation. (See former Health & Saf. Code, § 11351 [as amended by Stats. 1984, ch. 1635, § 51, p. 5851].) On appeal, he contends that the trial court should have granted his petition. We affirm the order.
All code sections refer to the statutory version applicable during the relevant time period.
Vogel-Leyva filed a timely notice of appeal from the order denying his petition for writ of error coram nobis. This is appealable as an order after judgment affecting his substantial rights. (See Pen. Code, § 1237, subd. (b); People v. Kraus (1975) 47 Cal.App.3d 568, 573; see also In re Dapper (1969) 71 Cal.2d 184, 187, cert. den. sub nom. Dapper v. California (1970) 397 U.S. 905.)
Some of these facts are taken from the trial court’s January 2007 settled statement. (See Cal. Rules of Court, rule 8.346.)
On July 3, 1985, San Francisco police received a tip that an illegal alien named Jose was at a hotel in possession of a large amount of heroin. When officers knocked at the door of a room at the hotel and asked for “Jose,” appellant Jose Luis Vogel-Leyva opened the door. On a bed inside the room, police saw two plastic bags filled with a number of multicolored balloons, a large brown paper bag and some cash sitting on a bed. The two plastic bags were later found to contain 16 balloons of heroin each. Vogel-Leyva made an unsuccessful attempt to close the door, then grabbed the large brown paper bag and dropped it out the hotel room window. Underneath the hotel room window, police later retrieved the paper bag containing 640 balloons of heroin. The manner of packaging and the large amount of cash found—more than $700—led police to conclude that the heroin was possessed for sale.
At this time, Vogel-Leyva went by the name of Leyva. To avoid confusion, we use his current name throughout this opinion.
Vogel-Leyva was arrested for possession of heroin for sale. On July 8, 1985, a complaint was filed charging him with one count of possession of heroin for sale on July 3, 1985, in violation of Health and Safety Code section 11351. An allegation—purportedly pursuant to Penal Code section 1203.073, subdivision (a)(1)—asserted that Vogel-Leyva was ineligible for probation because he had sold or offered to sell one-half ounce or more of heroin. The reference to subdivision (a)(1) of section 1203.073 was a clerical error—the complaint should have cited subdivision (a)(1) of section 1203.07. (See former §§ 1203.07 [as amended by Stats. 1983, ch. 223, § 5, p. 693], 1203.073 [Stats. 1984, ch. 144, § 162, p. 483].)
All further statutory references are to the Penal Code unless otherwise indicated.
In 1985, section 1203.073 did not contain a subdivision (a)(1) and its subdivision (b)(1) referred to cocaine, not heroin. At that time, subdivision (a)(1) of section 1203.07 banned probation for those convicted of violating Health and Safety Code section 11351 if the amount of heroin possessed was 14.25 grams or more. The prosecutor intended to allege a ban on probation in the original complaint because of Vogel-Leyva’s possession of more than 14.25 grams—approximately one-half ounce—of heroin pursuant to section 1203.07, subdivision (a)(1).
On September 5, 1985, a preliminary hearing was held on the charges in the complaint. Together, it appears that the six bags found inside and outside the hotel room contained 113.9 grams of a substance that tested positive for heroin. Vogel-Leyva was held to answer for the possession for sale charge. The magistrate took judicial notice of the fact that the substance containing heroin that was found weighed more than one-half ounce. Vogel-Leyva was not held to answer on the allegation in the complaint pursuant to section 1203.073, because the complaint cited the wrong section. The magistrate stated that he would have held Vogel-Leyva to answer for the weight allegation if it had been alleged pursuant to section 1203.07, subdivision (a)(1).
Vogel-Leyva was ordered to be released on his own recognizance that day. On September 20, 1985, he was charged by information with one count of possession of heroin for sale in violation of section 11351 of the Health and Safety Code. (Super. Ct. No. 117800.) The information repeated the clerical error in the complaint, alleging probation ineligibility due to the weight of the substance containing heroin pursuant to subdivision (a)(1) of section 1203.073 rather than that subdivision of section 1203.07.
Vogel-Leyva failed to appear in court on September 23, 1985, as required and a bench warrant was issued. He later explained that he had gone to Mexico, where his daughter had been born a few days earlier. He remained there until mid-January 1986, when he returned to this country. On January 30, 1986, Vogel-Leyva was arrested on the bench warrant and was found to be in possession of heroin.
On February 3, 1986, Vogel-Leyva was arraigned on the information in the first case and entered a plea of not guilty. A pretrial conference was set for March 12, 1986, and trial was set for March 17, 1986. Bail was set at $10,000. No record of the transcript of this hearing is now available.
In a second matter, Vogel-Leyva was charged by a February 1986 complaint with the January 1986 possession for sale of heroin and the September 1985 failure to appear after release on his own recognizance. (See Health & Saf. Code, § 11351; former § 1320, subd. (b) [as amended by Stats. 1983, ch. 1092, § 321, p. 4058].) He was held to answer on that complaint later in February 1986. A second information was filed on March 13, 1986, charging Vogel-Leyva with these two new offenses. (Super. Ct. No. 119488.) (See Health & Saf. Code, § 11351; former § 1320, subd. (b).)
On March 12, 1986, Vogel-Leyva appeared in court on both cases. He entered a guilty plea in the first case pursuant to an understanding that the prosecution would recommend a midterm of three years in state prison on that case and dismissal of the second case. The 1986 trial court accepted the guilty plea in the first case and dismissed the second case. (See § 1385.) When the judge was asked if the probation ineligibility allegation was dismissed or needed to be dismissed, he stated that this allegation related to its “sentencing limitation.”
Sentencing was originally scheduled for April 2, 1986. The probation report recommended that probation be denied because Vogel-Leyva was a poor candidate for probation. It also noted that Vogel-Leyva wanted to withdraw his plea and obtain private counsel. He denied that the drugs found were his.
The sentencing hearing was continued until April 3, 1986. On that date, Vogel-Leyva made an oral motion to set aside his guilty plea on the basis that he did not understand it. That motion was denied. Vogel-Leyva did not admit the truth of any allegation, either pursuant to section 1203.073, subdivision (a)(1) as alleged or pursuant to the correct section 1203.07, subdivision (a)(1). He was sentenced to three years in state prison and the second case was dismissed, consistent with the plea agreement.
Vogel-Leyva served his sentence. Since his release from prison, he and his wife and daughter—all legal residents of Mexico—sought permanent legal resident status in this country. He has learned that his conviction for possession of heroin for sale prevents him and his family from adjusting their status to that of lawful permanent residents.
In June 2006, Vogel-Leyva petitioned the trial court for a writ of error coram nobis, seeking to set aside the guilty plea underlying his conviction. He alleged that at the time he entered into his guilty plea, he believed in error that a possession of heroin for sale conviction, not a probation ineligibility finding, would render him ineligible for probation. He argued that his confusion stemmed from the prosecution’s error in pleading the statutory basis of the probation ineligibility allegation. (See former §§ 1203.07, subds. (a)(1), (b), 1203.073.) He asserted that he pled guilty based on his mistaken belief that the 1986 court would have had no discretion to grant him probation if he had gone to trial, and a jury had found the allegation to be untrue but had convicted him of the underlying possession charge. Thus, Vogel-Leyva reasoned, he entered into his guilty plea based on a mistake of fact.
On July 18, 2006, the trial court denied Vogel-Leyva’s petition for writ of coram nobis. It concluded that there was no basis to find that the 1986 sentencing court would have rendered any judgment other than the one that it did, even if it had known that Vogel-Leyva was unaware that the allegation was a basis of his ineligibility for probation. It found that no probation ineligibility allegation was admitted or found true and that the prison sentence Vogel-Leyva received was unrelated to any probation ineligibility allegation. It also concluded that with the evidence before it, it could find no reasonable explanation why Vogel-Leyva waited 20 years to address this issue.
In August 2006, Vogel-Leyva filed a timely notice of appeal from the trial court’s order denying his petition for writ of error coram nobis. In November 2006, he sought a settled statement from the trial court about two 1986 hearings. In January 2007, the trial court issued a settled statement of facts about the February and April 1986 hearings for which transcripts are no longer available. In May 2007, the trial court overruled Vogel-Leyva’s objections to this settled statement. For our part, in June 2007, we denied his motion to correct that settled statement, finding no good cause to do so.
In December 2006, Vogel-Leyva petitioned our court for a writ of mandate to compel the trial court to rule on this application. (See Cal. Rules of Court, rule 8.346(b).) That petition was dismissed as moot in February 2007, after the trial court issued its settled statement in January 2007. (No. A116257.) Later in February 2007, Vogel-Leyva filed a second petition for writ of mandate challenging the sufficiency of the settled statement, which we denied the following month. (No. A116850.)
II. CORAM NOBIS
A. Preliminary Issues
On appeal, Vogel-Leyva first contends that the trial court failed to do its duty to review his evidence before issuing the settled statement. As the trial court’s settled statement and the order rejecting his objections to it make clear, the trial court met its duty to consider this evidence. Vogel-Leyva’s real complaint is that the trial court did not believe his evidence. The evidence that he cites was not included in the settled statement specifically because the trial court rejected it as incredible and speculative. The trial court acted properly when it determined what the true facts were and which facts should have been included in the settled statement. (See generally Cal. Rules of Court, rule 8.137.)
Having rejected this procedural claim, we determine whether the trial court properly denied the merits of the petition for writ of error coram nobis. A writ of error coram nobis is similar to a motion to vacate a judgment. (People v. Dubon (2001) 90 Cal.App.4th 944, 950.) The writ may issue only if Vogel-Leyva establishes (1) that some fact existed that, without his fault or negligence, was not known to the sentencing court and that would have prevented the rendition of the judgment; (2) that there is new evidence that does not go to the merits of any issues of fact determined at trial; and (3) that he did not know nor could have discovered, with due diligence, the facts on which he now relies any sooner than the point at which he petitioned for the writ. (People v. Shipman (1965) 62 Cal.2d 226, 230 [strict requirements]; People v. Ibanez (1999) 76 Cal.App.4th 537, 544; see generally Prickett, The Writ of Error Coram Nobis in California (1990) 30 Santa Clara L.Rev. 1, 3 [characterizing petitioner’s burden as “formidable”].) The trial court found that Vogel-Leyva established the second element, but not the first and third. Thus, we focus on those two requirements for a writ of error coram nobis. On appeal, we review a judgment denying a petition for a writ of error coram nobis under the abuse of discretion standard. (People v. Dubon, supra, 90 Cal.App.4th at p. 951; People v. Ibanez, supra, 76 Cal.App.4th at p. 544.)
B. Facts Impacting Rendition of Judgment
Vogel-Leyva asserts that he demonstrated that he was ignorant of facts that constituted a mistake of fact defense such that the petition for writ of error coram nobis should have been granted. He argues that he did not have notice of the correct probation ineligibility allegation in the information. He asserted in his petition that the prosecutor’s failure to plead and prove a correctly cited probation ineligibility allegation led him to believe that he could not avoid a state prison sentence by raising a reasonable doubt about whether he actually possessed the heroin retrieved outside the hotel, which would thereby disprove the weight of heroin aspect of the probation ineligibility allegation.
There are many reasons why this argument is flawed. We need only discuss two of them. First, the argument assumes that the sentencing court actually applied the probation ineligibility allegation after finding that it was true. Vogel-Leyva refers to the probation ineligibility allegation as one that the sentencing court impliedly found to be true. In fact, the evidence that the prosecution never pled this allegation with a correct statutory reference and that the sentencing court never affirmatively found it to be true compels the conclusion that it was not found to be true. (See § 1203.07, subd. (b).) Certainly, the 1986 court’s passing reference to it after Vogel-Leyva pled guilty does not meet the statutory requirement of a finding made by a court sitting without a jury. (See ibid.) The probation report did not mention any probation ineligibility finding when it recommended that the sentencing court impose a prison sentence because Vogel-Leyva was deemed to be a poor candidate for probation. The trial court deemed the charged allegation to have been dismissed at the preliminary hearing and found that it played no part in the 1986 judgment. The record on appeal offers no support to Vogel-Leyva’s contrary assumption.
Second, Vogel-Leyva’s argument also turns on his assumption that if he had been able to defend against the probation ineligibility allegation, he would not have been sentenced to prison. The trial court also disagreed with this assumption. When rejecting the petition for writ of error coram nobis, it found no reason to believe that the sentencing court would have rendered any other judgment even if the probation ineligibility allegation had been formally rejected by a jury after trial. We agree that Vogel-Leyva’s underlying assumption is mistaken. The tenuousness of his logic becomes clearer as we note that he does not take into account the impact of his second, then-pending case based on the January 1986 possession of heroin for sale charge and the September 1985 failure to appear charge. If he had withdrawn his plea and had gone to trial on the first case, the second case would have been revived. In these circumstances, in addition to the difficulty of raising a reasonable doubt about his possession of the larger amount of heroin found outside the hotel such that he might defeat the probation ineligibility allegation, Vogel-Leyva would have faced trial and possible sentencing on the second case. The fact that his speculation about obtaining a grant of probation in the first case lacks any consideration of the second case’s impact on his potential sentence underscores the fallacy of this argument.
The trial court acted within its discretion when it concluded that Vogel-Leyva did not demonstrate that the facts he deems relevant—if proven—would have resulted in the rendition of a different judgment. Thus, Vogel-Leyva did not establish the first essential element of a successful petition for writ of error coram nobis. (See, e.g., People v. Ibanez, supra, 76 Cal.App.4th at p. 544 .)
C. Due Diligence
Assuming arguendo that he were able to prove that he operated under a mistake of fact that, if known, would have altered the rendition of judgment, Vogel-Leyva has also failed to demonstrate that he acted with due diligence when he petitioned for a writ of error coram nobis. (See People v. Ibanez, supra, 76 Cal.App.4th at p. 544; see Prickett, The Writ of Error Coram Nobis in California, supra, 30 Santa Clara L.Rev. at pp. 33-41.) The trial court found that he did not show any reasonable explanation for waiting 20 years to address this issue. Again, Vogel-Leyva asserts that he demonstrated that he exercised due diligence since the time that he discovered this defense.
Vogel-Leyva contends that the trial court improperly focused on whether he could have discovered the error earlier when it made the finding that he did not offer a reasonable explanation for not filing his petition earlier. Again, we disagree. The concept of due diligence “goes beyond the petitioner’s actual knowledge as of the time he requests to have the judgment set aside. Diligence encompasses what is in effect constructive knowledge.” (Prickett, The Writ of Error Coram Nobis in California, supra, 30 Santa Clara L.Rev. at p. 37.) Thus, Vogel-Leyva must show that the fact was not known to him and that it could not have been discovered at any time earlier than the time of his petition if he had acted with due diligence. (People v. Shipman, supra, 62 Cal.2d at p. 230; see Prickett, The Writ of Error Coram Nobis in California, supra, 30 Santa Clara L.Rev. at p. 37.)
Vogel-Leyva had the burden of proving the essential elements of his claim for a writ of error coram nobis. (See People v. Ibanez, supra, 76 Cal.App.4th at p. 544.) His arguments do not persuade us that the trial court abused its discretion in finding that he did not act with due diligence. In the face of many deficiencies in the petition, we are satisfied that the trial court acted within its discretion when it denied Vogel-Leyva’s request for a writ of error coram nobis.
The order is affirmed.
We concur:
Sepulveda, J., Rivera, J.