P. v. Simpson

Filed 8/22/08 P. v. Simpson CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Los Angeles Superior Court. Patricia M. Schnegg, Judge. Dismissed.

Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant admits he was advised of, and did not object to, the gang registration requirement when he was sentenced immediately following his nolo contendere plea. Nonetheless, he claims the trial court erred in denying his motion to withdraw his plea because he was not so advised before entry of his plea. For the reasons set forth below, we find appellants claim is procedurally barred. We also note in passing that the claim lacks merit.

STATEMENT OF FACTS

Appellant was charged in his most recent case, superior court case No. BA307475, with a single count of possession for sale of a controlled substance (Health & Saf. Code,  11378). It was further alleged that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code,  186.22(b)(1)(A).) Appellant also faced two probation violations, in superior court cases numbered BA265582 and BA269691. In BA265862, appellant was on probation, having previously been convicted of being in possession of a loaded firearm in a public place. (Pen. Code,  12031(a)(1).) In BA269691, appellant was on probation after having been convicted of being a felony or addict in possession of a firearm. (Pen. Code,  12021(a)(1).)

In exchange for appellants nolo contendere plea to the charge and admission to the gang allegation in the new case as well as his admission that he violated probation in the two other open cases, it was agreed that appellant would receive an aggregate term of three years four months on the new case and that his probation violation cases would be sentenced concurrently. Appellant was advised of his rights and entered the nolo contendre plea and the admissions.

Immediately thereafter, appellant was sentenced to the low base term of 16 months on the possession for sale charge, plus an additional and consecutive low term of two years on the gang enhancement allegation, for an aggregate term of three years four months in state prison. A gang registration requirement was imposed as part of his sentence. Both appellant and his counsel were present when it was imposed, but did not object. Appellant was also sentenced on the two pending probation violation cases. In BA265862, appellant was sentenced to the middle term of two years, and the sentence was ordered to run concurrent. In BA269691, appellant was sentenced to the middle base term of two years, and that sentence was likewise ordered to run concurrent.

On August 3, 2007, appellants counsel filed a motion to withdraw the plea. In it, appellant claimed he was coerced into accepting the plea agreement because he did not have enough time to reflect on it and that he was factually innocent of the charge and special allegation. On September 11, 2007, appellant filed a declaration in support of the motion to withdraw his plea, claiming he was not given appropriate conduct credits. The matter was heard on September 14, 2007. The trial judge indicated that to the extent that I may lack jurisdiction under [Penal Code section ] 1018 because judgment has been entered and this is [sic] an probationary matter, I will treat the moving papers as a writ of coram nobis or habeas petition at this point. At the hearing, appellant claimed he did not want to plead to an offense that would be a strike and that he did not know he was required to register as a gang offender and that he did not want to do so. The trial court denied the motion to withdraw the plea, finding appellant had sufficient time to consider the issues and never objected to a requirement that he register as a gang member.

In the intervening time period, appellant filed a notice of appeal on August 31, 2007, on his own behalf. It indicted the appeal was based on the sentence or other matters occurring after the plea. He also checked the box indicating he was challenging the validity of the plea. A request for a certificate of probable cause was denied by the trial judge on September 17, 2007. In the denial, the court noted that appellant gave inconsistent reasons for requesting withdrawal of the plea, first arguing he was under duress at the time and that he was pressured into accepting the offer and now contending the plea should be withdrawn because his counsel was ineffective for failing to retain a fingerprint expert to analyze the evidence against him. The court denied the motion because appellant faced considerable state prison exposure in this case and also had two active probation violations that were resolved with the defendant receiving concurrent time as a result of the negotiated plea. The trial court further stated that appellant consulted extensively with his counsel when taking the plea and nothing in the record demonstrated ineffective assistance of counsel. This was designated appellate court case No. B203927.

On September 18, 2007, appellants counsel filed a notice of appeal, challenging the trial courts denial of the post judgment motion to withdraw his guilty plea. In it, he indicated appellant was basing his appeal on matters occurring after the plea and also challenging the validity of the plea. With it, appellant filed a second request for a certificate of probable cause. In the second certificate of probable cause, appellant contended he was pressured to accept the plea, was not a member of a gang and was not advised prior to his plea that he would have to register as a gang member. This second certificate of probable cause was likewise denied. This was designated court of appeal case No. B204492.

By order filed May 22, 2008, the appeals in B203927 and B204492 were ordered consolidated under case No. B204492.^[1]

Appellant now seeks to withdraw his plea, contending the court failed to advise him he was required to register as a gang member.

I.APPELLANTS CLAIM IS PROCEDURALLY BARRED

Appellant claims the trial court erred in denying his motion to withdraw his nolo contendere plea because he was not advised of the gang registration requirement before entry of his plea. Appellant first contends he is authorized to seek review of his motion to withdraw his plea via direct appeal. In this he is mistaken.

Penal Code section 1237.5 provides:

No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or revocation of probation following an admission of violation, except where both of the following are met:

(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.

(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

Case law is in accord; a defendant may not appeal from a plea of nolo contrendere unless he has obtained a certificate of probable cause. (People v. Buttram (2003) 30 Cal.4th 773, 790.)

Further, even though both notices of appeal indicate they are based on the sentence or other matters occurring after the plea, California Rules of Court, rule 8.304(b)(5) specifically indicates that if a notice of appeal says that the grounds arose after entry of the plea, a reviewing court will not consider any issue affecting the validity of the plea unless . . . appellant also complies with section (b)(1), requiring that he obtain a certificate of probable cause. Similarly, case law provides appellant cannot avoid the certificate of probable cause requirement by labeling his challenge to the validity of the plea as an error occurring after the plea. (People v. Ribero (1971) 4 Cal.3d 55, 63-64.)

Here, appellant sought and but was denied certificates of probable cause from the trial court as to both the nolo contendere plea and the probation violation admissions. If the trial court denies a certificate of probable cause, the appeal is inoperative. (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188 (Castelan); In re Brown (1973) 9 Cal.3d 679, 683.) Significantly, appellant does not contest the denial of the trial courts decision to deny the certificates of probable cause. Only in a footnote does appellant state that the decision was clearly erroneous. However, the denial of a certificate of probable cause must be reviewed by filing a petition for writ of mandate in the appellate court. (Castelan, supra,32 Cal.App.4th at p. 1188.)

As an alternative tact, appellant contends the issue can be raised on appeal as a writ of error coram [sic] vobis.^[2] In fact, the trial court here stated because judgment has been entered and this is [sic] an probationary matter, I will treat the moving papers as a writ of coram nobis or habeas petition. . . . It is true that an order denying coram nobis relief is appealable, but a prerequisite to such review is that the petition must state a prima facie case for relief. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) To do so, appellant must show: (1) that some fact existed which, without his fault or negligence, was not represented to the court at the trial and which would have prevented the rendition of judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he 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. [Citations.]  (People v. Ibanez (1999) 76 Cal.App.4th 537, 544 (Ibanez).) Further  [t]he writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]  (Id. at p. 545.) Appellant does not even attempt to show how he fulfilled these requirements here. Nor could he.

As has been noted, the sole contention appellant asserts now for withdrawal of his plea and admissions is that he was not advised of the gang registration requirement. This is not something he just discovered, since he was informed of the requirement the same day as the plea, when he was sentenced. Further, this is not an issue of fact which is allowed to be corrected on a writ of coram vobis. Instead, it is an issue of law. Ibanez is instructive. In that case, the court held that the trial courts failure to advise defendant of the potential consequences of the Sexually Violent Predator Act was an issue of fact, not law. The same analysis applies here the failure to advise of the gang registration requirement is an issue of fact, not law. As such it is not appropriately considered in a writ of error coram vobis. The denial of a writ of error coram nobis is reviewed under the abuse of discretion standard. (Ibanez, supra, 76 Cal.App.4th at p. 544.) None is apparent here. Accordingly, the appeal must be dismissed.^[3]

DISPOSITION

The appeal from the motion to withdraw appellants guilty plea is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

COOPER, P. J.

RUBIN, J.

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[1] Appellant contends August 31, 2007, notice of appeal and request for certificate of probable cause underlie the probation violation cases. Further, that the earlier notice of appeal filed by appellant in pro. per. on August 31, 2007, also filed in conjunction with a notice of appeal were from the new case. This appears to be correct.

[2]A writ of coram vobis is essentially identical to the writ of coram nobis except that the latter is addressed to the court in which the petitioner was convicted.  (People v. Welch (1964) 61 Cal.2d 786, 790, italics omitted; citing In re Lindley (1947) 29 Cal.2d 709, 726.) Because appellant first filed in the trial court, his writ is one of coram nobis. Thus, it is from the denial of the writ of error coram nobis from which he appeals.

[3] Had we addressed the merits, appellants claim would have failed nonetheless. Case law is clear that appellants failure to object to imposition of a registration requirement at sentencing waives any error in the plea advisement. (People v. McClellan (1993) 6 Cal.4th 367, 376.)