Opinion
F079690
07-28-2021
THE PEOPLE, Plaintiff and Respondent, v. JODY CLAY BROWN, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Nikta (Nikki) Allami, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County No. 16CR-01580 David W. Moranda, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Nikta (Nikki) Allami, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, ACTING P.J.
INTRODUCTION
Defendant Jody Clay Brown appeals from the trial court's order denying his motion to withdraw his plea, brought pursuant to Penal Code section 1018. He claims on appeal, as he did in his motion, that at the time of his plea, he did not enter an Arbuckle waiver and he was not properly advised of the consequences of his plea with respect to the 15 percent credit-earning limitation under section 2933.1. He also seeks, pursuant to the decision in People v. Dueñas (2019) 30 Cal.App.5th 1157, remand for an ability-to-pay hearing on restitution fines imposed. (§§ 1202.4, subd. (b), 1202.45, subd. (a).) The People dispute defendant's entitlement to any relief on his claims.
All further statutory references are to the Penal Code unless otherwise specified.
Pursuant to People v. Arbuckle (1978) 22 Cal.3d 749, 756-757 (Arbuckle), a defendant is entitled to be sentenced by the same judge who accepted the plea bargain.
We ordered the parties to file supplemental briefs addressing whether the trial court had jurisdiction over defendant's section 1018 motion, filed in 2019, given that he entered his plea and was sentenced in 2016, and he was committed to state prison in 2017 after he violated probation. (Gov. Code, § 68081.) Defendant does not dispute that his motion was not timely filed under section 1018, but he requests that to the extent we find the motion untimely, we treat this matter as a petition for writ of either coram nobis or habeas corpus. The People contend that the trial court did not have jurisdiction to address defendant's untimely motion and that defendant lacks entitlement to relief under coram nobis or habeas corpus.
We conclude that defendant's 2019 motion to withdraw his plea under section 1018 was untimely and the trial court lacked jurisdiction to consider the motion. Further, neither coram nobis nor habeas corpus affords defendant an avenue for relief on his claims. Therefore, we dismiss his appeal for lack of jurisdiction.
PROCEDURAL HISTORY
On March 8, 2016, defendant was charged in Merced County with second degree robbery (§ 211; count 1), battery inflicting serious bodily injury (§ 243, subd. (d); count 2), and providing false information to a police officer (§ 148.9, subd. (a); count 3). The complaint also alleged he served one prior prison term. (§ 667.5, former subd. (b).)
On May 2, 2016, Judge Moranda gave an indicated sentence of drug court and probation for three years. The prosecutor objected to the indicated sentenced, but entered a stipulation that count 2 was not a strike offense. Defendant entered an open plea of no contest to all charges, and admitted he violated probation in Merced Superior Court case No. CRM032309B. The court accepted the plea, struck the prior prison term enhancement allegation, and referred defendant to drug court.
Although we do not reach the merits of defendant's Arbuckle claim, we identify the individual judges before whom he appeared to ensure a clear record.
“An open plea is one under which the defendant is not offered any promises, ” and “‘plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it.'” (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.)
On May 11, 2016, Judge Schechter accepted defendant into drug court, ordered him to enroll and complete the drug court program, placed him on probation for three years, and imposed and suspended execution of the upper term of five years in state prison on count 1.
The record indicates count 2 was stayed under section 654.
On May 13, 2016, defendant's presence at a drug court review hearing was waived and it appears from the record that he had entered a program.
On May 27, 2016, defendant failed to appear. His probation was revoked and a warrant for his arrest was issued.
On November 21, 2017, defendant appeared before the court, in custody. After several continuances, Judge Jacobs held a sentencing hearing on December 11, 2017. Judge Jacobs terminated probation, ordered execution of the previously imposed sentence, and committed defendant to state prison for the upper term of five years. The court also imposed a minimum restitution fine of $300 under section 1202.4, subdivision (b)(1), and a parole revocation restitution fine of $300 under section 1202.45, subdivision (a), suspended.
In addition, defendant had two pending misdemeanor cases, which the court, on the prosecutor's motion, dismissed in the interest of justice. (§ 1385.)
Defendant filed a timely notice of appeal, which was dismissed on June 25, 2018, on defendant's motion.
We take judicial notice of case No. F076974. (Evid. Code, §§ 452, subd. (d), 459.)
On November 18, 2018, defendant, proceeding in pro. per., filed a motion seeking the issuance of an amended abstract of judgment on the ground that he was eligible to earn half-time credits under the terms of his plea agreement. On December 7, 2018, Judge Bacciarini issued an order denying the motion and an amended abstract of judgment correcting an unrelated clerical error. The record reflects that defendant filed a notice of appeal and request for a certificate of probable cause. After reviewing this request, Judge Bacciarini issued an amended ruling on January 10, 2019, in an order finding defendant was awarded the correct credits under the law, concluding he made a prima facie showing that he was misadvised for purposes of habeas relief, and setting the matter for hearing.
On May 17, 2019, after several continuances, conflict counsel was appointed to represent defendant.
On May 29, 2019, defense counsel filed the aforementioned section 1018 motion seeking to withdraw defendant's plea on the grounds that he did not enter an Arbuckle waiver and that he was not advised of the consequences of his plea with respect to time credits. The People opposed the motion.
It appears from discussions on the record that defendant filed one or two petitions for writ of habeas corpus at some point, which were denied, but the details of those proceedings are not part of the record. Further, although Judge Bacciarini found that defendant's in pro. per. motion to amend the abstract of judgment stated a prima facie case for habeas relief, the parties and the trial court did not thereafter proceed via habeas corpus and appointed counsel elected to bring a section 1018 motion.
On July 3, 2019, Judge Moranda held a hearing and denied defendant's motion to withdraw the plea and amend the abstract of judgment with respect to the credit limitation issue. The matter was continued as to the Arbuckle waiver issue, and during the subsequent hearing held on July 10, 2019, Judge Moranda denied the motion to withdraw the plea based on Arbuckle. Defendant filed the notice of appeal in this case the same day, and the court granted his request for a certificate of probable cause on July 25, 2019.
DISCUSSION
I. Section 1018 Motion Untimely
As an initial matter, “[s]ubject to limited exceptions, well-established law provides that the trial court is divested of jurisdiction once execution of a sentence has begun.” (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923, citing People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1205.) In this case, defendant brought a section 1018 motion to withdraw his plea 17 months after the trial court ordered the execution of his sentence.
Section 1018 provides, in relevant 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…. This section shall be liberally construed to effect these objects and to promote justice.” (Italics added.)
“In a criminal case, the sentence is the judgment. [Citation.] When probation is granted, however, the timing of the judgment can vary because a trial court may grant probation by either suspending imposition of the sentence, or by imposing the sentence and suspending its execution.” (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213-1214, italics omitted.) Section 1018 “distinguishes between defendants sentenced after a guilty plea and defendants for whom imposition of sentence is suspended. [It] permits a court to allow a defendant to withdraw a plea either (1) ‘any time before judgment' or (2) ‘within six months after an order granting probation is made if entry of judgment is suspended.' Thus, the critical question is whether judgment was entered or suspended[]” (People v. Williams (2011) 199 Cal.App.4th 1285, 1288) and “[w]here … a defendant moves to withdraw his or her guilty or no contest plea beyond the period proscribed in Penal Code section 1018, the court lacks jurisdiction to consider or grant the motion” (People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1324 (Rodas)).
Here, defendant entered a plea and judgment was entered on May 11, 2016, when the trial court imposed the sentence and stayed its execution. (People v. McKenzie, supra, 25 Cal.App.5th at p. 1214; People v. Williams, supra, 199 Cal.App.4th at p. 1288.) Defendant did not file a motion to withdraw his plea under section 1018 prior to that time and instead brought the motion three years later, at which time the trial court had no jurisdiction to consider it. (Rodas, supra, 10 Cal.App.5th at p. 1324.) Defendant does not dispute this, but, as discussed next, requests we treat the motion as a postjudgment petition for writ of coram nobis or habeas corpus. For the reasons that follow, we decline to do so and dismiss the appeal.
Defendant's motion would also have been untimely if the court had instead suspended imposition of sentence, giving him a six-month window to file the motion.
II. Coram Nobis
As defendant acknowledges, “writs of error coram nobis [are] … applicable to only a ‘very limited class of cases' [citation].” (People v. Kim (2009) 45 Cal.4th 1078, 1092 (Kim).) “‘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.…”'” (Id. at p. 1093, quoting People v. Shipman (1965) 62 Cal.2d 226, 230.)
“[T]he writ of error coram nobis is unavailable when a litigant has some other remedy at law. ‘A writ of [error] coram nobis is not available where the defendant had a remedy by (a) appeal or (b) motion for a new trial and failed to avail himself of such remedies.' [Citations.] ‘The writ of error coram nobis is not a catch-all by which those convicted may litigate and relitigate the propriety of their convictions ad infinitum. In the vast majority of cases a trial followed by a motion for a new trial and an appeal affords adequate protection to those accused of crime. The writ of error coram nobis serves a limited and useful purpose. It will be used to correct errors of fact which could not be corrected in any other manner. But it is well-settled law in this and in other states that where other and adequate remedies exist the writ is not available.'” (Kim, supra, 45 Cal.4th at pp. 1093-1094.)
Defendant claims that neither the court nor trial counsel advised him regarding the credit limitation under section 2933.1, and he acknowledges that a petition for writ of coram nobis does not generally provide for relief under that circumstance. Defendant is correct. “‘[T]he remedy does not lie to enable the court to correct errors of law[]'” (Kim, supra, 45 Cal.4th at p. 1093), and the claim he advances does not meet the requirements for relief (ibid.). Moreover, he had, via a timely motion to withdraw his plea on direct appeal, a legal remedy for the wrong he claims. Therefore, there is no basis upon which to treat his untimely section 1018 motion as a petition for writ of coram nobis. (Kim, supra, at pp. 1092-1093 & 1104.)
III. Habeas Corpus
Finally, “‘“habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.”'” (People v. Rodriguez (2014) 58 Cal.4th 587, 654, quoting People v. Richardson (2008) 43 Cal.4th 959, 1038; accord, In re Reno (2012) 55 Cal.4th 428, 490.) “[H]abeas corpus as an extraordinary remedy available in those infrequent and unusual situations in which regular appellate procedures prove inadequate. In short, a litigant is not entitled to raise an issue on habeas corpus after having failed to raise the same issue on direct appeal.” (In re Reno, supra, at p. 490.)
In supplemental briefing, defendant's counsel states that it appears defendant has served his sentence and is no longer in custody. Habeas corpus relief is not available to a defendant no longer in actual or constructive custody. (Kim, supra, 45 Cal.4th at p. 1108; accord, People v. Villa (2009) 45 Cal.4th 1063, 1069; see In re Cook (2019) 7 Cal.5th 439, 457 [“[R]elief in habeas corpus is granted by ‘an order or judgment directing the petitioner's release from custody or alteration of the conditions of the petitioner's confinement.'”].) However, even if we assume defendant remains in state custody for the sake of argument, we nevertheless decline to treat this matter as one of habeas corpus. The claim defendant raises does not involve any special circumstances and direct appeal was available to him as a remedy. (People v. Rodriguez, supra, 58 Cal.4th at p. 654; In re Reno, supra, 55 Cal.4th at p. 490.)
DISPOSITION
Defendant's appeal of the trial court's order denying his motion to withdraw his plea pursuant to section 1018 is dismissed for lack of jurisdiction.
WE CONCUR: SNAUFFER, J., DeSANTOS, J.