P.v . Delgado

Filed 11/30/05 P.v . Delgado CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. JAVIER ANTONIO DELGADO, Defendant and Appellant.	B176756 (Los Angeles County Super. Ct. Nos. GAO54201 & GA052088)
In re JAVIER ANTONIO DELGADO, on Habeas Corpus.	B182319

APPEAL and PETITION for writ of habeas corpus from an order of the Los Angeles Superior Court, Teri Schwartz, Judge. Order affirmed and petition denied.

Nolan F. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Javier Delgado was convicted by plea of first degree (residential) burglary (Pen. Code, §§ 459, 460; all further statutory references are to that code) with personal firearm use (§ 12022.5, subd. (a)), and admission of a prior serious felony, which was alleged both for purposes of sentence enhancement (§ 667, subd. (a)) and recidivist sentencing (§§ 1170.12, 667, subds. (b)–(i)). He was sentenced to an aggregate term of 23 years in state prison. In the present proceeding we review two related matters: his appeal from the trial court’s denial of his petition for writ of error coram nobis (B176756) and his petition for habeas corpus relief (B182319). Both seek essentially the same relief: withdrawal of his guilty plea and related admissions, and consequent setting aside of the sentence and judgment. We have reviewed the record before us for each matter, and conclude that Delgado has not presented a basis for appellate relief. We shall affirm the denial of coram nobis and deny the petition for habeas corpus.

FACTUAL AND PROCEDURAL SUMMARY

We are not furnished with a detailed recitation of the underlying charges. We do know that defendant and two other men were charged with a home invasion burglary and attempted robbery, while armed, and assault, in which four persons were victims of their crimes. Defendant’s two co-actors pled guilty. Defendant was arraigned and charged with one count of residential burglary, four counts of attempted robbery (§§ 654/211), and two counts of assault with a deadly weapon (§ 245, subd. (b)). He also was charged with personal use of a semi-automatic handgun in commission of these crimes (§§ 12022.5, subd. (a), 12022.53, 1203.06, subd. (a)(1)), and with allegations that he had suffered a prior serious or violent felony conviction.

If convicted of all charges, defendant faced a very long period of incarceration; he acknowledges it to be over 40 years. At the time he entered the plea bargain, the trial court already had indicated that it would not rule on his Romero motion to strike the prior conviction allegation for purposes of sentencing (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497) until the time of sentencing. Even then, in light of the fact that defendant was on probation at the time he committed the present crimes, which involved force and violence, the court said that the likelihood it would grant the motion was “slim to none.”

The trial court made these observations at a morning hearing on March 3, 2004. That afternoon, the parties informed the court that a plea agreement had been reached. The following colloquy then occurred:

“The Court: All right. Thank you. My understanding is that the parties have reached a disposition that Mr. Delgado is going to accept the People’s offer of 23 [years]?

“Ms. Zimmerman [defendant’s trial attorney]: Yes, Your Honor.

“Ms. Torrealba [prosecutor]: That’s correct.

“. . .

“The Court: Okay. So then, Mr. Delgado, is that your understanding of the disposition?

“The Defendant: Yes.

“The Court: Has anybody promised you anything other than what has been stated here in open court in order to get you to enter your plea today and your admissions?

“The Defendant: No.

“The Court: What are we doing with the probation violation? . . . All right. So we have it. We will just terminate probation?

“Mr. Torrealba: That’s fine, Your Honor.

“The Court: All right. Is this going to be a no contest or guilty?

“Ms. Zimmerman: No contest, Your Honor.

“The Court: Mr. Delgado, do you understand a no contest plea will be treated the same as a guilty plea; you will be convicted based upon your plea of no contest?

“The Defendant: Yes.

“The Court: If you’re not a citizen of this country, your plea today can be used—will be used to cause your deportation; exclusion from admission; and deny you the right to naturalization. If you are a citizen, that will not apply to you. Do you understand the immigration consequences?

“The Defendant: Yes.”

The trial court proceeded to admonish defendant that upon his plea, he would be a “three-striker,” liable to punishment as such should he “pick up” another felony. Defendant acknowledged that he understood. Similar admonitions and acknowledgments of understanding were stated with respect to other probation and parole violations and the obligation to provide specimens for DNA analysis.

This was followed by specific advice to defendant of his right to jury trial or court trial, his right to confront and cross-examine witnesses who would testify against him, to remain silent, and to present a defense. The following exchange then occurred:

“The Court: Do you understand each of these rights?

“The Defendant: Yes.

“. . .

“The Court: Has anybody threatened you or anyone close to you in order to get you to enter your plea and your admissions today?

“The Defendant: No.

“The Court: And are you pleading no contest and admitting the priors freely and voluntarily because you think it’s in your best interest to take advantage of the People’s offer of 23 years?

“The Defendant: Yes.”

This was followed by defendant’s formal admission of the charges and allegations specified in the plea agreement, which was accepted. Defendant was then sentenced to 23 years in state prison, in accordance with the plea bargain.

Some three weeks later, defendant (now represented by different counsel) moved to withdraw his plea and vacate the sentence on the grounds that his plea was involuntary as the product of duress, threat, intimidation, and misrepresentation of the facts.

The motion was supported by a declaration from defendant. In it he stated that he was involved in a near-fatal accident in 1999, for which he was hospitalized and “diagnosed with serious and permanent damage. I actually expired for a brief period of time and was revived.” He remained hospitalized for a month and a half, and was in a coma for two weeks. As a result of the accident he has serious problems in listening and comprehending, as well as visual problems. He thinks he is legally blind. Beyond this, he is addicted to marijuana and methamphetamine, and, he says, “I know that a combination of the residuals from my accident, as well as my drug addiction has affected my mental state and ability to make good decisions.”

The declaration continued, stating that after his arrest for the present charges, the Public Defender assigned to his case told him that a not guilty plea would be entered, and “basically spent no time” with him about the case. Several weeks later, he spoke to another Public Defender and tried to explain his version of what happened, but was told only that the charges were serious and his exposure to prison substantial. He was unable to interject his version of what happened. About a month later, the Public Defender told him that his codefendants had “copped out” and that he had no defense and was facing a sentence of 65 years to life, but that a plea bargain had been arranged by which he would get a term of 23 years to life.

The declaration continues with complaints about his representation by the Public Defender; little time was spent discussing defenses; he was informed that his fingerprints were not found on the “subject gun” or at the residence where the crimes occurred; despite his requests he was not provided with a transcript of the codefendants’ pleas, or any recording of admissions or confessions on his part; he maintained that the case was one of misidentification; and he had expressed dissatisfaction with his representation and asked the Public Defender to allow him to “proceed in Pro. Per.” But he was later told he could not do that.

He states that his guilty plea was not voluntary; that he was coerced, threatened and intimidated to make it, and was told that if he did not, he “would surely be convicted and be sentenced to 65 years to life.” He is 19 years of age with a 10th grade education, and suffers from neurological problems resulting from the accident as well as substance use. He is not guilty, and “but for [his] fear and mental condition at the time of the plea” he would not have entered it, and he only requests that the court allow him to withdraw it and have his day in court.

The motion also was supported by a brief memorandum of points and authorities, and no medical evidence. It was opposed, and denied without prejudice on May 25, 2004.

This was followed by a petition for habeas corpus or, alternatively, for writ of error coram nobis. These alternative requests were supported by points and authorities, minute orders and a transcript of the plea proceedings, and selected medical records from Huntington Memorial Hospital relating to defendant’s stay there in January 1999. These records were presented without expert interpretation or discussion of their significance. The first entry presented, the “History of Present Illness,” recounts that the patient (defendant) was a 14-year old who fell off his bicycle that morning, striking himself and losing consciousness. Upon arrival at the hospital he was observed to have an altered mental status and to be somewhat combative. A basilar skull fracture was observed, and a CT scan disclosed a posterior temporal epidural hematoma of relatively small proportion. A marked improvement in his mental status was observed in the last half-hour. The motion also was supported by a declaration by defendant’s new (and present) counsel, in which the attorney declares that he had visited defendant at the Wayside Facility, and “[o]n each occasion when speaking to Defendant, I am able to detect that he does not quite follow everything that is going on.”

In its June 4, 2004 minute order denying the motion, the court stated:

“The court has read and considered the petition for writ of habeas corpus or in the alternative writ of error coram nobis. The court has reviewed the court file and in particular the ex parte motions of defense counsel Lisa Zimmerman filed under seal. The court finds there is no showing that counsel Zimmerman provided ineffective assistance of counsel. The court further finds that petitioner’s mental condition was evaluated by an expert and known to defense counsel. All possible mental defenses were presumably explored. Petition is summarily denied.”

This appeal followed.

DISCUSSION

I

The writ of error coram nobis is a restricted post-judgment remedy available only when the petitioner demonstrates: “(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 the 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.” (People v. Soriano (1987) 194 Cal.App.3d 1470, 1474.) In bringing a petition for such relief, the defendant bears the burden of proof “to overcome the strong presumption in favor of the validity of the judgment on the petitioner. This burden requires the production of strong and convincing evidence.” (People v. Stapleton (1956) 139 Cal.App.2d 512, 513; People v. Ibanez (1999) 76 Cal.App.4th 537, 548.)

At the outset, the People argue that defendant’s appeal does not lie because his petition was summarily dismissed in the trial court. “Denial of a defendant’s request for coram nobis relief is appealable [citation] unless the petition failed to state a prima facie case for relief [citation] or the petition merely duplicated issues which had or could have been resolved in other proceedings [citations].” (People v. Gallardo (2000) 77 Cal.App.4th 971, 982.) The People argue that since the trial court rejected the request for coram nobis relief solely on the basis of the petition and did not seek rebuttal evidence or hold a hearing, it must have found a failure to state a prima facie case for relief. We do not read the record so narrowly. The court initially denied a motion to withdraw the plea, and did so summarily but without prejudice. (See People v. Gallardo, supra, 77 Cal.App.4th at p. 982 [“[f]or better or worse, the terms ‘motion to vacate’ and ‘petition for writ of error coram nobis’ are often used interchangeably and the two procedures are similar in scope and effect”].) The trial court rejected the second motion, but did not say that it failed to make a prima facie showing. Our Supreme Court has said that a reviewing court may dismiss an appeal from denial of coram nobis relief on the basis of the petitioner’s failure to make a prima facie showing, but it has not said that the court cannot entertain an appeal from the order denying relief. (See People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4.) We believe that the better course in this case is to say why the petition, and hence the appeal, lacks merit, rather than issue a summary dismissal of the appeal on the naked ground that it fails to make a prima facie showing.

Although defendant devotes a substantial part of his argument to asserted deficiencies of trial counsel, he denies that this is a basis for coram nobis relief. As he recognizes, it is not, but rather is matter for habeas corpus review when the deficiencies require resort to material outside the trial court record. (See People v. Gallardo, supra, 77 Cal.App.4th at p. 983.) To the degree the trial court exercises discretion in granting or denying a coram nobis motion, review is under the abuse of discretion standard, and an abuse may be found only if the trial court action is arbitrary, capricious or patently absurd, resulting in a manifest miscarriage of justice. (See People v. Shaw (1998) 64 Cal.App.4th 492, 496.)

Defendant’s argument is that, because of the blow to his head suffered in the 1999 bicycle accident and his addiction to controlled substances, he has difficulty understanding court proceedings, and hence did not understand what he was giving up in pleading no contest to the plea bargained charges. He was thus in a “Catch 22” situation because he did not understand enough to realize that he was not assimilating what was happening.

The argument is not convincing. Defendant suffered the accident several years before his plea in the present case. In the interim he had been convicted of a serious felony and was on probation for that offense, when he joined with two other persons to commit an armed home invasion burglary-robbery. If he suffered from difficulty in assimilating information, that was a condition of which he was long aware; at least the trial court could so infer. Presumably, he discussed his situation with counsel, or at least had an opportunity to do so or, failing that, to say something to the court during the plea colloquy. Most tellingly, while defendant’s declarations recount various dissatisfactions with the Public Defenders who were representing him, he does not say that he did not understand the admonitions the court was giving him or what he was doing in entering the plea. Nor does he present any medical or other expert opinion evidence to that effect.

In short, defendant fails to satisfy any of the requirements for coram nobis relief. He has not shown that a fact existed—his inability to understand the plea proceedings—which, through no fault of his own, was not known at the time of the plea. There is no newly discovered evidence. And he has not shown that the grounds on which he relies were not known and could not have been known through the exercise of due diligence when he entered the plea.

There was no trial court error in denial of defendant’s motion for coram nobis relief.

II

Defendant’s petition for writ of habeas corpus is principally based on his claim that trial counsel failed to investigate mental issues, and that had she done so she might have discovered usable evidence to establish that he lacked the mental capacity necessary to form the specific intent to commit the crimes charged against him. Both burglary and robbery are specific intent crimes, the former requiring the specific intent to commit theft or a felony (People v. Collins (1878) 53 Cal. 185, 187), and the latter to permanently deprive a person of property (People v. Ford (1964) 60 Cal.2d 772, 793). Since defendant was charged with attempted robbery, the specific intent to commit that crime also is required. (See People v. Snyder (1940) 15 Cal.2d 706, 708.)

There is no dispute over hornbook principles on the right to competent representation by counsel at trial and the standards for determining a failure of that quality. (See, e.g., the leading cases, Strickland v. Washington (1984) 466 U. S. 668 and People v. Ledesma (1987) 43 Cal.3d 171.) If there was any basis to believe that defendant suffered from a mental deficiency sufficient to allow a prima facie showing that he lacked the capacity to form the requisite specific intent for a charged offense, the failure of counsel to explore that issue may demonstrate a lack of competent representation. (People v. Ledesma, supra, 43 Cal.3d at p. 223.) As Strickland and other cases hold, it is still necessary to demonstrate the reasonable probability that a more favorable determination would have resulted if the investigation had been conducted.

In this case, there is virtually no showing at all. There is the fact that defendant suffered an apparently serious head injury several years before the present crime, his claim of substance abuse, and the declaration of his present attorney that he seemed “off” when counsel visited him at a detention facility. There also are several pages of copies from medical records from defendant’s hospitalization, but these also lack analysis or prognosis relevant to defendant’s mental state at the time of the crimes charged against him, or when he entered his no contest plea. There also are conclusionary statements that trial counsel failed to investigate these issues and that his continuing problems “can only be determined by a board certified neurosurgeon and psychiatrist” who could “fully determine what part those injuries played in petitioner’s crimes and his resultant liability.” There is no evidence, even now, that the effects of the accident and claimed drug use rendered defendant incapable of forming the specific intent to enter a building in order to commit robbery, or to attempt to commit that crime. And, while present counsel acknowledges that the trial court said that defendant’s trial counsel had defendant evaluated by an expert, he argues that “it is unclear how that could be true since he was never personally evaluated.” The last statement is unsupported by any citation to the record.

Nor is there a declaration by trial counsel about what investigation she undertook, or an effort to obtain such a declaration. There is, on the other hand, the statement of the trial court that defense counsel filed ex parte motions, apparently related to possible mental defenses, and that defendant was evaluated by an expert known to counsel. After reviewing the record, the court concluded that “[a]ll possible mental defenses were explored.” There is nothing to rebut that presumption.

Defendant also argues that trial counsel failed to explore his claim of misidentification. The only basis for that claim is the assertion that the Public Defender spent little time with defendant, and that defendant spent no more than five minutes actually talking about the merits of his case. This is based on the statement in his declaration that “I do not believe that five or ten minutes was ever designated to discussing the defenses of this case or how it might be successfully presented.” That is far from an adequate showing that defense counsel was unaware of defendant’s claim, much less that she failed to adequately investigate and evaluate it.

We are given no information about possible weaknesses in the evidence identifying defendant as one of the perpetrators. We do know that his two codefendants already had pled guilty or no contest in plea bargains, and hence could be compelled to testify against defendant. We also know, as he did, that he was facing an aggregate prison confinement that was likely to have consumed most of the rest of his life. His attorney managed to negotiate a plea bargain that substantially mitigated that punishment. There is no showing that her efforts were constitutionally insufficient.

In sum, the requisite showing to justify issuance of a writ of habeas corpus has not been made.

DISPOSITION

The order denying defendant’s motion for coram nobis relief is affirmed. His petition for habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P.J.

We concur:

HASTINGS, J. CURRY, J.

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