Opinion
A100717. A102171.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. CONNELLY, Defendant and Appellant. In re MICHAEL J. CONNELLY
I. INTRODUCTION
This is an appeal from the San Francisco Superior Courts denial of appellants petition for a writ of habeas corpus, a petition appellants counsel attempted, during the course of oral argument, to orally convert into a petition for a writ of coram nobis. Whichever, by it appellant sought to correct the record of a 1980 conviction (after a bargained-for guilty plea) in the same court for a violation of Penal Code section 245, subdivision (a)(1) (hereafter section 245 (a)(1)),[] from one of assault with a deadly weapon to one of assault by "means of force likely to produce great bodily injury." (& sect; 245 (a)(1).) That effort was, in turn, designed to preclude usage of the 1980 conviction as a "strike" in a murder charge (& sect; 187) filed against appellant in San Mateo County in 2001. The trial court denied appellants petition and we affirm.
All statutory references are to the Penal Code.
Appellant has also filed a petition which seeks the same relief by our issuance, in the alternative, of a writ of mandate, a writ of habeas corpus, or a writ of coram vobis. For all the reasons we affirm the trial courts actions, we deny the petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 1980, the San Francisco District Attorney filed a four-count information against appellant. The first two counts charged him with assault with intent to commit murder (§217) while counts three and four charged assault "with a deadly weapon and instrument, to wit: a GUN." (§ 245 (a)(1).)
On April 1, 1980, pursuant to a plea bargain, appellant withdrew his previous pleas of not guilty and not guilty by reason of insanity to count three, one of the section 245 (a)(1) counts, and pled guilty to that count. On motion of the assistant district attorney, a firearm-use allegation annexed to count three plus the three remaining counts of the information were dismissed.
The problem giving rise to the current appeal appears in the reporters transcript of the hearing in which all this was accomplished: the deputy public defender representing appellant announced to the court that her client wanted "to enter a plea of guilty to the charge of assault with means likely to produce great bodily injury, a violation of Section 245A [sic] of the California Penal Code, a felony." In securing the plea, however, the trial court (the Honorable Michael Hanlon) asked appellant: "[W]hat is your plea to violating Section 245A [sic] of the Penal Code, a felony, as set forth in Count 3 of the information?" To which, appellant responded: "Guilty."
On June 20, 1980, appellant was sentenced to the mid-term of three years but granted probation on condition that he serve one year in county jail, with credit for time already served of 65 days. On July 14, 1980, the county jail condition was modified to require appellant to serve only six months.[]
The minute orders reflecting the probationary period are confused as to the crime for which he had been convicted. Two of them mistakenly cite section 217, while the final one (reducing the jail-time condition to six months) got it right, citing section 245 (a).
On April 6, 1982, probation was revoked and appellant sentenced to state prison. He appealed the order revoking probation and also petitioned for a writ of habeas corpus. In an unpublished opinion, this court affirmed the judgment and denied the petition. In the course of so doing, we also referred to the 1980 conviction as being for "assault with a deadly weapon."
Sometime in 2001, appellant was charged with murder in the San Mateo County Superior Court and his 1980 conviction charged as a "strike." On April 24, 2002, appellant filed a petition for a writ of habeas corpus in the San Francisco Superior Court seeking to have the record of his 1980 conviction corrected to reflect that he was convicted of assault by means likely to cause great bodily injury as distinguished from assault with a deadly weapon (both clauses appearing in section 245 (a)(1)).
An evidentiary hearing was held on the petition on September 13, 2002, before the Honorable Raymond Williamson. During the course of this hearing (which will be discussed in more detail below), appellants counsel asked that the petition be treated as one for a writ of error coram nobis.
At the conclusion of the evidentiary hearing and oral argument, the trial court denied the petition. Appellant filed a notice of appeal on October 10, 2002.
III. DISCUSSION
There are at least five reasons why we must and will affirm the superior courts denial of appellants petition and, additionally, deny the relief appellant seeks in his separate petition to this court.
First of all, and as appellants counsel apparently realized in the midst of the evidentiary hearing in the superior court, a writ of habeas corpus is appropriate when, but only when, the petitioner is in custody. Section 1473, subdivision (a), makes this clear by providing: "Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint." (§ 1473, subd. (a).) And there is abundant authority, both state and federal, that a petitioner not in actual or constructive custody may not pursue a habeas corpus remedy. (See Mendez v . Superior Court (2001) 87 Cal.App.4th 791, 796 (Mendez), and cases cited therein.)
Second, the tactic employed by appellant here, i.e., verbally attempting to change the petition he was bringing from one for a writ of habeas corpus into one for a writ of coram nobis, is highly dubious. The title of appellants April 24, 2002, filing with the San Francisco Superior Court was "Petition for Writ of Habeas Corpus." On June 27, 2002, the San Francisco District Attorney filed a return to the petition arguing, on the basis of Mendez and many other cases, that such a petition was inappropriate because appellant was not in custody, actual or constructive. Nevertheless, two weeks later, appellant was still filing supporting papers labeling his petition as one seeking a writ of habeas corpus.
The several mid-2002 superior court minute orders continuing the hearing to September 13, 2002, also referred to the proceeding as one seeking habeas corpus. And that is how Judge Williamson announced what he understood was before him at the beginning of the hearing. A possible change in the nature of the writ being sought was suggested by appellants counsel only after the proceedings had begun. His rationale for this change was as follows: "The remedy in common law was what we used to call a petition or writ of error coram nobis. The only reason I label this as habeas is because [of] the fact that the newer cases in California say that, well, we dont really call it coram nobis . . . anymore; we just lump it all under habeas."
Counsels statement of the law was and is wrong. A writ of habeas corpus lies when, for mistakes of law or violations of constitutional rights, a person is unlawfully detained. A writ of coram nobis, almost entirely a common law writ, lies to vacate a judgment of conviction obtained based on mistakes of fact. Although there may occasionally be some overlap, the two writs are quite separate and distinct. (See, generally: Prickett, The Writ of Error Coram Nobis in California (1990) 30 Santa Clara L.Rev. 1, 68-69 (hereafter Prickett); Mendez, supra, 87 Cal.App.4th at pp. 796 et seq.; People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983; In re Azurin (2001) 87 Cal.App.4th 20, 27, fn. 7.) In short, if appellant wanted to file a petition for a writ of coram nobis, he should have called it that from the beginning.
Third, neither a writ of coram nobis nor a writ of coram vobis (its appellate court equivalent) lies here. Those writs are available to vacate an entire judgment because of, inter alia, evidence which was not made available at trial because of fraud, coercion or mistake. (See Prickett, supra, 30 Santa Clara L.Rev. at pp. 19-24, 66-72, and 6 Witkin, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, §§ 182, 184.) They do not lie to correct mere procedural errors (see Prickett, supra, 30 Santa Clara L.Rev. at p. 30) nor "to challenge the judgment by attacking various incidents of the plea. Among these unreachable matters are the petitioner having pleaded guilty to the `wrong charge, or to a charge in the information which is different from an offense charged in the original complaint." (Id. at p. 31; see also, People v. Ingles (1950) 97 Cal.App.2d 867, 874-875; People v. Moore (1935) 9 Cal.App.2d 251, 253-255; cf. People v. Harden (1953) 118 Cal.App.2d 563, 565.)
Fourth, an essential element of a successful writ of coram nobis is due diligence. "The importance of diligence cannot be overemphasized and is at least as great as any of the other requirements. Petitioners who fail to pay sufficient heed to it proceed at their own peril." (Prickett, supra, 30 Santa Clara L.Rev. at p. 33.) Our Supreme Court has said the following on this precise subject: "It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis. [Citations.] One who applies for a writ of coram nobis . . . 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; otherwise he has stated no ground for relief." (People v. Shorts (1948) 32 Cal.2d 502, 512-513; see also 6 Witkin, supra, Criminal Judgment, § 187, and cited therein.)
The requirement of due diligence could not possibly have been satisfied here. Both the abstract of the judgment of appellants conviction and this courts 1984 affirmance of the order revoking his probation explicitly referred to his 1980 conviction as being one for a violation of section 245 (a) based on an assault with a deadly weapon.
Fifth, and as we think the superior court implicitly found in this case, appellant simply did make out a case of any mistake concerning the crime to which he was pleading guilty under count three of the original information. True, the deputy public defender verbally labeled it as one involving "assault by means of force likely to produce great bodily injury," but that was not the charge to which appellant pled guilty a few minutes later. More importantly, in order for a change to have been made in the charge to which the appellant was pleading, the assistant district attorney would have had to move to amend count three of the information, which she did not do.
At the 2002 evidentiary hearing, the superior court heard testimony from that assistant district attorney. In it, she was quite clear that (1) she had not moved to amend the information to change the charge to one of "assault with force likely to produce great bodily injury," (2) the reason she had not done so was because it was her position at the time that the weapon used by the appellant, a pellet gun, was in fact a deadly weapon, (3) she had so argued to the trial court in 1980 in opposition to a section 995 motion brought by appellant and cited to that court a case so holding, and (4) her recollection was that the "resolution" of the 995 motion was "that this was a 245 (a), deadly weapon." As a result, she testified, she believed that appellant had, in fact "pled guilty as charged in the information." Thus, even assuming arguendo that a writ of coram nobis was an appropriate vehicle here, there was clearly substantial evidence to support the trial courts denial of such a petition.
IV. DISPOSITION
The order denying appellants petition is affirmed and his petition to this court for the issuance of a writ of mandate, habeas corpus or coram vobis is denied.
We concur: Kline, P.J., Lambden, J.