Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM027543, CM027861, CM028831
Cantil-Sakauye, J.
Defendant faces charges of 11 felonies and 3 misdemeanors in 3 pending cases. In each case, his 1998 conviction for making criminal threats (Pen. Code, 422) is alleged as a prior serious or violent felony (a strike) under sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d). Defendant brought a motion to strike this allegation or alternatively to withdraw his plea in the 1998 case. He argued that he entered a plea of guilty to section 422 based on the understanding that it was not a serious or violent felony. The subsequent passage of Proposition 21 made that understanding incorrect. The trial court denied the motion and defendant appeals. He contends the trial court abused its discretion because he was misinformed as to the consequence of his 1998 plea. We find defendant has failed to show he is entitled to withdraw his plea and affirm.
Hereafter, undesignated statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
1998 Plea
In 1998, defendant pled no contest to three felonies: making criminal threats (§ 422), felon in possession of a firearm (§ 12021, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He received a prison sentence of five years and four months. The plea agreement provided that the possible consequences of the plea included that the conviction could result in a prison prior, but the provisions that it could result in a serious felony or strike were crossed out.
In 1998, a violation of section 422 was a serious felony under section 1192.7 only if the defendant personally used a firearm or inflicted great bodily injury. (Cf. People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [discussing § 245, subd. (a)(1)]; People v. James (2001) 91 Cal.App.4th 1147, 1149 [discussing same and § 246].) In 2000, the electorate passed Proposition 21, which added section 422 to the list of serious felonies in section 1192.7, subdivision (c). (§ 1192.7, subd. (c)(38), amended by electorate (Prop. 21) at the March 7, 2000, Primary Election, operative March 8, 2000.)
Current Charges
On August 16, 2007, defendant was charged in case No. CM027861 with two felony counts of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and two misdemeanors, possession of a controlled substance (Health & Saf. Code, § 11375, subd. (b)(2)) and battery (§ 243, subd. (e)(1)). His 1998 section 422 conviction was alleged as both a prison prior (§ 667.5) and a strike (§ 667, subds. (b)-(i) & § 1170.12).
On October 31, 2007, in case No. CM027543, defendant was charged with three felonies: possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and possession of a billy club (§ 12020, subd. (a)(1)). Again, his 1998 conviction for section 422 was alleged as both a prior prison term and a strike.
On April 28, 2008, the complaint in case No. CM028831 charged defendant with possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of ammunition by a felon (§ 12316, subd. (b)(1)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) while armed with a firearm (§ 12022, subd. (a)(1)), carrying a concealed firearm (§ 12025, subd. (a)(2)), possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)) and misdemeanor resisting arrest (§ 148, subd. (a)(1)). His 1998 conviction for terrorist threats was alleged as both a prior prison term and a strike. This complaint was amended to add a charge of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)).
Motion to Dismiss Strike or Withdraw Plea
At the end of June 2008, defendant moved to dismiss the strike allegation or, alternatively, to withdraw his 1998 plea to violating section 422. Defendant argued the interests of justice required the 1998 strike be removed because he did not plead to a strike offense in 1998.
The trial court denied the motion to strike the strike allegation. The court also denied the motion to withdraw the plea, assuming it was properly filed. The court found the interests of justice required that the 1998 plea stand. Defendant had not been diligent in seeking to withdraw it.
DISCUSSION
Defendant appeals only from the court’s ruling that denied his motion to withdraw his 1998 plea. Although a motion to change a plea of guilty must ordinarily be made before judgment is pronounced (Pen. Code, § 1018), both motions to vacate the judgment and petitions in the nature of coram nobis may be addressed to the trial court after judgment, if there has been no affirmance on appeal (Pen. Code, § 1265). A motion to set aside a judgment of conviction and for permission to withdraw a plea of guilty may ordinarily be considered as a petition for writ of error coram nobis. (People v. Quesada (1991) 230 Cal.App.3d 525, 531, fn. 2.) Defendant contends his motion to withdraw his plea was the equivalent of a petition for a writ of error coram nobis and asks this court to consider this appeal from denial of that petition along with his petition to this court for a writ of error coram vobis. We denied that petition December 11, 2008. (People v. Wasson (Dec. 11, 2008, C060547).)
“The common law writ of error coram nobis is used to secure relief, in the same court in which a judgment was entered, from an error of fact alleged to have occurred at trial. In this state its use has been confined almost exclusively to criminal cases. [Citation.] Technically, when the petition is addressed to the trial court it is coram nobis, and when addressed to an appellate court it is coram vobis. [Citations.]” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 941, fn. 5.)
Although defendant claims he is seeking relief equivalent to that under a petition for a writ of error coram nobis, he fails to show he has met the requirements of that writ.
“‘The writ of [error] coram nobis is granted only when three requirements are met. (1) 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.” [Citations.] (2) 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.” [Citations.] 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. [Citations.] (3) 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 motion for the writ....”’ [Citations.]” (People v. Kim (2009) 45 Cal.4th 1078, 1093.)
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.” (People v. Kim, supra, 45 Cal.4th at p. 1093.) This “allegedly new fact must have been unknown and must have been in existence at the time of the judgment. [Citation.]” (Ibid.)
Defendant’s argument is premised on the assertion that he was misinformed as to the consequences of his plea; he was told the section 422 offense to which he was pleading could not be used in the future as a strike. Defendant was not misinformed; in 1998, his section 422 conviction alone was not a strike. What happened was that the law changed, not that he was misled. Consequently, there was no fact that existed in 1998 that was unknown to defendant and the court. The first requirement for a writ of coram nobis is not met.
Further, defendant has failed to show diligence. He contends he was unaware of the change in the law brought about by Proposition 21 because he was in prison at the time. He asserts he acted quickly--he claims within two months--once he became aware that his 1998 section 422 conviction could be used as a strike. Even if we were to excuse defendant’s delay from 2000 until 2007 when his 1998 conviction was first charged as a strike, defendant still fails to show diligence. Defendant had notice his 1998 prior could be a strike when the complaint in case No. CM027861 was filed on August 16, 2007. He was given notice again on October 31, 2007, when the complaint in case No. CM027543 was filed. He admitted he had two strikes in February 2008, when he ran from the police. Yet he waited until June 30, 2008, to attempt to withdraw his plea, without any explanation for the delay.
Defendant’s situation is similar to that of the defendant in People v. James, supra, 91 Cal.App.4th 1147. In James, the defendant was charged with current felonies and two serious or violent prior felonies (strikes) were alleged. These prior felonies, assault with a firearm and shooting into an inhabited dwelling or occupied motor vehicle, were committed in 1994 and at that time were not serious or violent felonies unless the defendant personally used a firearm or inflicted great bodily injury. It was alleged that the defendant committed his current felonies after the effective date of Proposition 21, which amended section 1192.7 to add defendant’s prior felonies to the list of serious felonies. (James, supra, at p. 1149.)
Both versions of the three strikes law provided that references to existing statutes, such as section 1192.7, “are to statutes as they existed on June 30, 1993.” (§ 667, subd. (h); Ballot Pamp., Gen. Elec. (Nov. 8, 1994) text of Prop. 184, § 2.) Proposition 21 changed this by adding sections 667.1 and 1170.125. Section 667.1 provides: “Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by the act....” Similarly, section 1170.125 provides: “Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, general election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by the act....”
The James court concluded applying these new statutory provisions to felonies committed before the effective date of Proposition 21 would not violate the prohibition against ex post facto laws, so long as the current felony offenses were committed on or after the effective date of Proposition 21. (People v. James, supra, 91 Cal.App.4th at p. 1150.) Under James, there is no prohibition against using the defendant’s 1998 section 422 conviction as a strike, even though it was not a strike in 1998.
Defendant contends he was deprived of his plea bargain. According to the prosecutor’s opposition filed in the trial court, defendant was also charged in 1998 with carrying a loaded firearm (§ 12031). In considering defendant’s motion to withdraw his plea, the trial court stated the personal use allegation was dismissed in 1998. Defendant suggests the section 12031 charge was dropped as part of the plea bargain, so his section 422 offense would not be a strike. “The goal of Appellant’s plea was to avoid these charges coming back at him in the future as a strike.”
In some situations, applying a statutory amendment that will violate defendant’s plea bargain is a violation of due process. (People v. Arata (2007) 151 Cal.App.4th 778 [applying amendment to § 1203.4 which made its relief unavailable to one convicted of § 288 violated due process because denial of § 1203.4 relief was significant variation from plea bargain].) Application of the statutory amendment, however, must violate a significant term of the plea bargain. (Id. at p. 787.) In People v. Paredes (2008) 160 Cal.App.4th 496, the court found the plea bargain did not contain a promise of no deportation, so the change in federal immigration law regarding deportation did not violate plea bargain.
In this case the record contains only the change of plea form from 1998. We cannot determine with certainty what charges defendant faced in 1998 or what factors influenced his plea. Since this record does not contain the specifics of defendant’s 1998 plea bargain, there is no way to assess whether the change in the law violated a significant term. Further, we note a significant distinction from Arata and Paredes. Unlike the statutory changes at issue in Arata and Paredes, under which defendant could not expunge his conviction or defendant faced deportation, here the change making defendant’s 1998 section 422 conviction a strike will have no effect unless and until defendant is convicted of a felony. The change simply punishes defendant’s recidivism, a matter within defendant’s control.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., BLEASE, J.