P. v. Bray
Filed 8/1/12 P. v. Bray CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DANIEL RAYMOND BRAY,
Defendant and
Appellant.
F063303
(Super.
Ct. No. MF009212A)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
Patrick J.
Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos
A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
This appeal
challenges a final judgment of conviction after denial of a motion to withdraw
a plea of no contest.
FACTS AND PROCEDURAL HISTORY
On July 9, 2010, defendant Daniel Raymond
Bray, his wife, Kathleen Bray, and 12-year-old son, Gary Bray, were eating
dinner with some family members at their home in Kern
County. When defendant was pouring salt on his food,
it spilled all over his plate. Defendant
accused Kathleen
title="">[2] of playing a trick on him. When Kathleen denied the accusation, he
accused Gary of altering the salt
shaker in order to ruin his dinner.
Because Kathleen was afraid that defendant would assault Gary,
she got between them while he was yelling at Gary. When defendant pushed Kathleen and tried to
grab Gary, she blocked him. Kathleen then tried to leave the house, but
defendant placed her in a wristlock and began to crush her
fingers back to break them so she would drop her keys. She tried to leave the house again, but
defendant grabbed her arm once more and placed it in a rear wristlock, crushing
her fingers. Defendant punched her in
the face, causing her lip to bleed.
Kathleen stated once she left the house, defendant picked Gary
up by his head, scratched his face and pushed his fingers in Gary’s
eyes.
Deputies
were dispatched to the house and saw Kathleen and Gary running from the front
door of the house to a car in the front yard.
Kathleen had blood on her lower lip and finger and Gary
had dark purple and blue marks under his right eye. When interviewed, defendant denied assaulting
Kathleen and Gary. He stated that
Kathleen had broken her nail when she tried to reach in his pocket to get his
cell phone and she got blood on her face from sucking on her finger. Defendant was escorted from the house into a
patrol vehicle, arrested and booked into Kern
County jail.
On July 13, 2010, defendant was charged
with causing a child to suffer physical pain, mental suffering or injury (Pen.
Code,
injury on his spouse (§ 273.5, subd. (a)), threatening to commit a crime
that would cause death or serious bodily injury to another person (§ 422)
and false imprisonment (§ 236).
Defendant was arraigned the following day and the court entered
protective pleas of not guilty to all charges.
On July 21, 2010, defendant entered a plea of no contest to the charges
of causing a child to suffer physical
pain, mental suffering or injury (count 1) and inflicting corporal injury
on his spouse (count 2). The remaining
charges were dismissed upon a motion by the district attorney.
On August 19, 2010, the sentencing
proceeding took place. The trial court
inquired of defendant whether he wished to proceed to sentencing or, instead,
make a motion to withdraw his plea.
Defendant chose to be sentenced.
The trial court suspended the imposition of sentence and placed
defendant on formal probation for four years.
The first year of his probation was to be served in local custody.
On July 8, 2011, defendant filed a motion to set aside his no
contest plea. At the hearing on August 3, 2011, defendant argued that
the motion should be granted because he had discovered new evidence about
Kathleen’s criminal record, the trial court had failed to fully determine that
defendant entered his plea voluntarily and knowingly, and trial counsel had
misadvised defendant as to his possible maximum sentence. The trial court denied the motion because it
was untimely. Defendant filed a notice
of appeal and requested a certificate of probable cause on September 8, 2011, asserting ineffective
assistance of counsel. The trial court
granted the certificate of probable cause.
DISCUSSION
The
trial court was correct in denying defendant’s motion to withdraw his plea; the
six-month requirement of section 1018 had passed. Section 1018 states in pertinent part:
“On application of the defendant at any time before
judgment or within six months after an order granting probation is made if
entry of judgment is suspended, the court may, and in case of a defendant who
appeared without counsel at the time of the plea the court shall, for a good
cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty
substituted.”
On August 19, 2010, judgment was suspended and
defendant was placed on probation. He
did not make a motion to withdraw his plea of no contest until almost a year
later, on July 8, 2011. The six-month time limitation of
section 1018 is mandatory. (
1124, 1133-1134.) The 1991 amendment to
section 1018 that added the six-month time limitation “was plainly enacted to
protect the People’s ability to prosecute cases by limiting the ability of a
defendant to obtain withdrawal of his guilty plea long after entry of that
plea.” (People v. Miranda, supra, 123 Cal.App.4th at p. 1133.) Here, the six-month time period had elapsed
when defendant made a motion to withdraw his plea. The trial court was correct in finding that
it lacked jurisdiction to consider defendant’s motion.
Defendant acknowledges that the
six-month time limitation had passed before he filed his motion to withdraw his
plea. He contends, however, that the
trial court should have treated his motion to withdraw his plea as a motion to
vacate the judgment or as a petition for writ of error coram nobis and in failing to do so, the court erroneously failed
to exercise its discretion. In
particular, defendant contends he would have been able to show that his trial
counsel was constitutionally ineffective if the court had permitted the
recharacterized section 1018 motion to be heard on the merits.
Treating the motion to withdraw the plea as a motion to
vacate the judgment or as a petition for writ of error coram nobis, in the circumstances of this case, would be contrary
to the law. Defendant’s sole contention
on appeal is that he should have been allowed to establish ineffective
assistance of counsel. Our Supreme Court
has stated “any number of constitutional claims,” including ineffective
assistance of counsel, “cannot be vindicated on coram nobis.” (People
v. Kim (2009) 45 Cal.4th 1078, 1095.)
A claim that a defendant has been “deprived of effective assistance of
counsel in making his guilty plea … is not an appropriate basis for relief by
nobis.” (People
v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) “The appropriate means of raising a claim of
ineffective assistance of counsel is either by direct appeal or by petition for
a writ of habeas corpus.” (
More generally, the authorities
cited by defendant do not state that a trial court has a sua sponte duty to
consider an untimely motion to withdraw a guilty plea as a motion to vacate a
judgment or as a petition for writ of error coram
nobis. (See People v. Wadkins (1965) 63 Cal.2d 110, 112 [defendant filed, in
propria persona, a document entitled writ of coram nobis,
it as a motion to set aside plea]; People
v. Totari (2003) 111 Cal.App.4th 1202, 1204, 1207 [§ 1016.5 motions to
vacate convictions]; People v. Gontiz
(1997) 58 Cal.App.4th 1309 [motions to vacate judgment]; People v. Lockridge (1965) 233 Cal.App.2d 743, 744-745 [“‘Motion
for Stay of Execution of Sentence’” accepted as writ of error
to withdraw plea under § 1018].) We
find no basis for imposing upon the trial court a sua sponte duty to
recharacterize an untimely section 1018 motion as a petition for writ of error
The judgment is affirmed.
name="_ftn1" title="">* Before
Kane, Acting P.J., Detjen, J. and Franson, J.
name="_ftn2" title="">[1] The
facts are taken from the probation officer’s report.
