P. v. Bush

Filed 6/18/08 P. v. Bush CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County,

Gary J. Ferrari, Judge. Appeal dismissed.

TrutanichMichel, C.D. Michel, and Brigid J. Joyce, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Phillip Bruno Bush appeals from the trial courts denial of his petition for writ of error coram nobis and nonstatutory motion to vacate the judgment. Because the petition/motion fails to state a prima facie case for relief, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

1. Bushs Plea Hearing

Bush attacked his wife with a knife. In late November 1995 Bush was arrested and charged by felony complaint with assault with a deadly weapon or by means of force likely to produce great bodily injury and inflicting corporal injury on a spouse. As to the corporal injury count, it was specially alleged Bush had personally used a deadly weapon (a knife) in committing the offense.^[1]

On March 8, 1996, pursuant to a negotiated agreement, Bush entered a plea of no contest to the charge of inflicting corporal injury on a spouse and admitted the deadly weapon enhancement allegation. According to the terms of the plea agreement, imposition of sentence was to be suspended and Bush placed on five years probation with credit for time served in county jail. The prosecutor agreed the aggravated assault count would be dismissed and further agreed, if Bush complied with all terms and conditions of probation, the People would not oppose a subsequent request by Bush to have his felony conviction reduced to a misdemeanor.

Bush was assisted at the plea hearing by attorney James Bianco. At the time he entered his plea, Bush was advised of his constitutional rights to a preliminary hearing and a jury trial, as well as the nature and consequences of his plea. Bush was informed of the terms and conditions of his probation, which included a prohibition against owning, using or possessing any deadly or dangerous weapons. Bush, a recreational hunter, and Bianco requested clarification whether knives and a bow and arrow were considered deadly or dangerous weapons. The court explained guns and knives, but not a bow and arrow, fell into this category. Bush inquired if a hunting knife could be used in conjunction with a bow and arrow; the court and prosecutor advised Bush to ask his probation officer.

The trial court found Bushs plea was knowingly, intelligently and voluntarily entered, and there was a factual basis for the plea. Bianco joined in the plea and admission and stipulated to a factual basis.

2. SubsequentProceedings

At the outset of the May 1, 1996 sentencing hearing the trial court summarized the negotiated sentence, noting that, upon Bushs successful completion of probation, his felony conviction would be reduced to a misdemeanor. The prosecutor added the probation condition prohibiting Bush from owning, using or possessing any deadly or dangerous weapons was to be modified to exclude a hunting knife.

The trial court sentenced Bush pursuant to the plea agreement, suspending imposition of sentence and placing Bush on five years formal probation with specified terms and conditions, including that he serve two days in county jail, with credit for time served, and that he was not to own, use, or possess any dangerous or deadly weapons other than previously mentioned by [the prosecutor]. Bush did not appeal from the judgment.

After sentencing Bianco told the court police officers had confiscated three guns from Bushs residence at the time of his arrest. Two are weapons which wed just as soon leave in the possession of police department [sic] until such time as [Bush] is able to possess weapons, which by my reading of the law would be at least 10 years.^[2]Bushs wife owned the third gun; the trial court agreed to have it released to her upon sufficient proof of ownership. According to Bush, his probation was terminated in 1999 two years early.^[3]

3. Bushs Request for Relief from His Plea Agreement

On June 29, 2006, long after his probation had ended, Bush filed a petition for writ of error coram nobis and motion to vacate the judgment, contending his 1996 plea and admission were induced by his mistaken belief he would be able to lawfully possess firearms when he was no longer on probation and his conviction had been expunged. Instead, because he was convicted of a domestic violence offense, Bush is currently subject to a lifetime ban on possessing firearms under federal law (18 U.S.C. 922(g)(9) (the Lautenberg Amendment)).^[4]

In the declaration filed in support of his petition/motion, Bush stated at the time of his pleahe understood that if [he] were to perform successfully on probation, the charge would automatically be reduced to a misdemeanor and then expunged;^[5]Bushs case was mistakenly calendared for expungement after only three years, in 1999, and when [Bush] pointed out the error to [his] probation officer, [the probation officer] commended [Bush] for [his] honesty and recommended the early termination anyway, which was granted; [b]elieving [he] was now eligible to possess a firearm, Bush attempted to register a gun with the California Department of Justice, but was rejected by reason of his 1996 conviction; Bush immediately contacted Bianco, who for the first time advised [Bush] of the 10-year prohibition under state law;^[6]Bush then waited out the 10-year period before contacting Bianco in March 2006 and learning of the federal lifetime ban on possessing firearms. Bush asserted, Had I known of the lifetime prohibition at the time of my plea, I would not have accepted the plea bargain. Bush maintains he need[s] to be eligible to possess firearms in order to protect [his] daughter and [himself] during activities of hunting, camping and fishing, as well as to teach [his] daughter about the safe handling of firearms.

In his memorandum of points and authorities accompanying the petition/motion, Bush argued his plea of no contest was not knowing or intelligent and his counsel rendered ineffective assistance because: (1) the effective date of the Lautenberg Amendment was January 1, 1996, well before Bush entered his plea; (2) although charged with knowing about the Lautenberg Amendment, Bianco failed at the time of the plea to advise Bush he would be precluded for life from possessing firearms under federal law as a direct consequence of the negotiated settlement;^[7]and (3) Bianco affirmatively misadvised that Bush was prohibited by state law from possessing firearms for 10 years following his conviction, which led Bush to delay taking any legal action to restore his ability to possess firearms until 2006.

At the November 1, 2006 hearing on his petition/motion, Bush was represented by new counsel. The judge was the same bench officer who had presided at the plea hearing. The court read and considered the contents of the superior court file, including the transcript of the plea hearing, and heard argument from counsel. At the conclusion of the hearing the court denied the petition/motion.^[8]

DISCUSSION

A petition for a writ of error coram nobis, the equivalent of a nonstatutory motion to vacate the judgment (People v. Dubon (2001) 90 Cal.App.4th 944, 950; People v.Gallardo (2000) 77 Cal.App.4th 971, 982), lies to give relief to a petitioner who through fraud, coercion or excusable mistake was deprived of a fair trial on the merits. (People v.Carty (2003) 110 Cal.App.4th 1518, 1523.) The denial of a defendants request for coram nobis relief is reviewed for an abuse of discretion. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) However, denial of a petition for writ of error coram nobis is not appealable unless the petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 [[i]n an appeal from a trial courts denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal]; see Dubon, at p. 950; Gallardo, at p. 982.)

The writ of 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. . . . (People v. Shipman (1965) 62 Cal.2d 226, 230.)

Bush has failed to raise any claims properly cognizable in a petition for writ of error coram nobis. A writ of error coram nobis will not issue to correct purported errors of law. (People v. Reid (1924) 195 Cal. 249, 258 overruled on other grounds in People v. Hutchinson (1969) 71 Cal.2d 342, 347-348; accord, People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) That Bush was unaware the conviction for inflicting corporal injury on his spouse, even when reduced to a misdemeanor, would bar him for life from possessing firearms under federal law is not a mistake of fact, but one of law. (See McElwee, at p. 1352 [defendants belief he would be paroled after serving 15 years in state prison was a mistake of law not fact].) As a mistake of law purportedly attributable to his defense counsel,^[9]it cannot be remedied by a petition for writ of error coram nobis. (People v.Gallardo, supra, 77 Cal.App.4th at p. 987 [claim that the defendant was deprived of effective representation of counsel is not an appropriate basis for relief by writ of error coram nobis and must be raised on appeal or by petition for writ of habeas corpus instead];^[10]see People v. Ibanez (1999) 76 Cal.App.4th 537, 547 [defendants ignorance of potential civil commitment consequences of his plea under the Sexually Violent Predators Act because he was not so advised by the court or his counsel was an error of law and thus not within the scope of coram nobis relief].)^[11]

Similarly, Bush cannot use a petition for writ of errorcoram nobis to attempt to vacate his judgment of conviction by attacking various incidents of the plea itself, such as the claim he was improperly advised of the consequences of entering his plea or the constitutional rights he lost thereby, particularly when, as here, he was represented by counsel (see People v. Banks (1959) 53 Cal.2d 370, 377-378 [coram nobis relief unavailable when defendant voluntarily and with knowledge of the facts enters a plea because of ignorance or mistake as to the legal consequences of the plea]), and the trial court expressly found his plea and accompanying waivers were knowing and intelligent (see People v. Rodriguez (1956) 143 Cal.App.2d 506, 507 [coram nobis relief unavailable to challenge trial courts finding guilty plea was intelligently made]).

Finally, because Bush has not presented a complete record on appeal, he has failed to make even a prima facie showing of his due diligence. (See People v. Shipman, supra, 62 Cal.2d at p. 230 [writ of error coram nobis will not issue unless petitioner establishes he or she did not know and could not have discovered with due diligence the facts he or she relies on earlier than the time of the petition].) For example, Bushs petition/motion fails to establish when he applied to register his firearm or when he learned his registration request had been rejected. To show due diligence, it is necessary to aver not only the probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence[.] (People v. Carty, supra, 110 Cal.App.4th at p. 1528.) The absence of evidence on these issues defeats the petition. (Id. at p. 1529; see People v. Shorts (1948) 32 Cal.2d 502, 513 [timeliness of presentation of facts supporting coram nobis petition must be pleaded with particularity].)

Because the claims asserted by Bush are not properly raised by a petition for writ of error coram nobis or a nonstatutory motion to vacate the judgment, the appeal must be dismissed.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

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^[1] The record on appeal omits the felony complaint and the probation report.

^[2]Penal Code section 12021, subdivision (c)(1), in part, makes it unlawful for anyone convicted of a misdemeanor violation of Penal Code section 273.5, inflicting corporal injury on a spouse or cohabitant, to own a firearm within 10 years of the date of the conviction.

^[3] Bushs declaration filed in support of his petition/motion asserts probation was terminated, the felony conviction reduced to a misdemeanor and his conviction expunged some time in 1999. However, the sparse record presented with this appeal contains no documentation reflecting the dates his formal probation was terminated, his felony conviction was reduced to a misdemeanor or his no contest plea was withdrawn and the misdemeanor charge dismissed under Penal Code section 1203.4.

^[4] The Lautenberg Amendment to the federal Gun Control Act of 1968, effective September 30, 1996, bans the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence. The prohibition applies to individuals convicted of qualifying offenses at any time, that is, even if the conviction occurred prior to the new laws effective date. (See United States v. Brady (2d Cir. 1994) 26 F.3d 282; United States v. Waters (2d Cir. 1994) 23 F.3d 29.)

^[5] The transcript of Bushs March 8, 1996 plea hearing includes the prosecutors statement that at the conclusion of the five year probation, assuming there are no violations or reported violations of that probation, the People would be agreeable that the matter be able to be reduced to a misdemeanor. There is no comparable representation by either the prosecutor or the court that the misdemeanor conviction would be expunged. Neither reduction of the offense to a misdemeanor nor expungment was addressed at the sentencing hearing on May 1, 1996.

^[6] As discussed, at the sentencing hearing Bianco had advised the court Bush would not be able to possess the guns that had been confiscated at the time of his arrest for at least 10 years.

^[7] Although his petition/motion in the trial court was predicated on the erroneous assertion the Lautenberg Amendment went into effect on January 1, 1996 and was in existence at the time of his plea, in his opening brief in this court Bush correctly states (without acknowledging the change in position) the amendment was not effective until September 30, 1996 ‑‑ after the date of both the plea agreement and sentencing. Nonetheless, without any support ‑‑ in the record or otherwise ‑‑ or citation of authority, Bush baldly asserts had his attorney done a competent investigation into this area of the law, he would have known a lifetime prohibition was a possibility given that this Amendment was in the works for some time prior to its being passed as a law.

^[8] The People moved to dismiss Bushs appeal from the denial of his petition for writ of error coram nobis and nonstatutory motion to vacate the judgment, in part, because Bush failed to obtain a certificate of probable cause. We denied the motion to dismiss for lack of a certificate of probable cause and advised the parties we would consider the remaining grounds with the merits of the appeal.

^[9] The Lautenberg Amendment, section 658 of Public Law 104-208, the 740-page Omnibus Consolidated Appropriations Act of 1997, was not adopted until several months after Bushs plea agreement and sentencing although, as noted, it prohibits gun possession by individuals convicted of misdemeanor domestic violence crimes prior to its effective date. Nothing in the record suggests Bianco should have anticipated this change in federal law.

^[10] On May 6, 2008, during the pendency of this appeal from the denial of his petition for writ of error coram nobis and nonstatutory motion to vacate the judgment, Bush filed a petition for writ of habeas corpus directly with this court. We summarily deny in a separate order that petition, which does not meet the habeas corpus jurisdictional requirements of California law (see In re Azurin (2001) 87 Cal.App.4th 20, 25-26).

^[11] The questions (a) whether a writ of error coram nobis is available to challenge a California conviction on which the sentence has fully expired if the conviction is currently the basis of federal immigration proceedings and the petitioner alleges that trial counsel failed to properly advise him as to the immigration consequences of the conviction and that he did not in fact know what those consequences would be, and (b) whether the trial court has the power to grant a nonstatutory motion to vacate the judgment for ineffective assistance of counsel in those circumstances are currently pending before the Supreme Court. (People v. Kim (2007) 150 Cal.App.4th 1158, review granted July 25, 2007, S153183.)