Opinion
F072787
01-04-2018
THE PEOPLE, Plaintiff and Respondent, v. GERARDO GONZALES, Defendant and Appellant.
Robert D. Salisbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is hereby ordered that the opinion filed herein on January 4, 2018, be modified as follows:
1. On page 72, footnote 29 is modified to read as follows:
"Our holding does not preclude appellant from seeking relief under section 1473.7 and/or Senate Bill 384. Nor does our holding preclude appellant from examining In re Donna Sue Hubbard (Aug. 7, 1995, F021117) [nonpub.opn.]."
Except for the modification set forth, the opinion previously filed remains unchanged.
This modification does not effect a change in the judgment.
POOCHIGIAN, Acting P.J. WE CONCUR: DETJEN, J. BLACK, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. SC027986A)
Judge of the Fresno Superior Court assigned by the Chief Justice Pursuant to article VI, section 6 of the California Constitution.
OPINION
APPEAL from an order of the Superior Court of Kern County. John W. Lua, Judge. Robert D. Salisbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/petitioner Gerardo Gonzales pleaded no contest in 1987 in the Superior Court of Kern County, pursuant to a plea agreement, to one count of violating Penal Code section 288, subdivision (a), commission of a lewd and lascivious act upon a child. The victim was identified as five-year-old Brooke H., who had apparently been a friend of his daughter. Appellant was sentenced to three years and ordered to register as a sex offender.
All further statutory citations are to the Penal Code unless otherwise indicated.
As acknowledged by respondent, appellant had originally been arrested and criminally charged as part of "a notorious Kern County investigation into numerous allegations of child molestations against numerous suspects in the 1980s." Also as acknowledged by respondent, the California State Attorney General's Office conducted an investigation into how law enforcement agencies handled those cases, and released a report in 1986 (before appellant's plea in this case) that revealed "there was in fact a well-publicized and flawed investigation involving numerous adults and children that 'ultimately f[l]oundered in a sea of unproven allegations, insufficient corroborating evidence, and bizarre allegations that in some instances were proven to be false and raised serious questions about the victims' credibility.' "
As we will explain, appellant submitted a copy of the Attorney General's Final Report as an exhibit in support of his petition for writ of error coram nobis.
According to the Attorney General's Final Report, these " 'unproven allegations' " included statements from children who claimed they had been molested by different adults; they were given drugs; they participated in satanic cult activities and murdered babies in their homes; and that a social worker, a deputy sheriff, and a deputy district attorney, all of whom had questioned the children during the investigations, had participated in these acts and also molested them. The Attorney General's Final Report stated that law enforcement investigators failed to find any corroborative evidence, the alleged homicide victims were alive, and the children who made the accusations may have participated in joint group therapy sessions that "may have led to 'cross-germination' - or children expanding their own statements to claim that events reported by other children also happened to them...."
Appellant asserts that he was charged with multiple felony offenses based on allegations that in addition to Brooke H., he also sexually molested his own two children and several other children, and that he committed the molestations with other adults, including his wife and the parents of the other children.
At the same hearing at which appellant entered his no contest plea to the single count in 1987, the court granted the district attorney's motion to dismiss all remaining charges against appellant, and all pending charges against appellant's wife. Appellant had been held in custody almost continuously since 1984, and he was immediately released based on time already served. He was not placed on probation or parole, and he was only subject to the court's order to register as a sex offender.
In contrast to appellant's plea agreement, many other suspects were convicted after jury trials and sentenced to lengthy prison terms. In the ensuing years, this and other courts have revisited these cases, expressed concern about the manner in which the cases were investigated and prosecuted, and reversed many of the orders and convictions on appeal. (See, e.g., People v. Pitts (1990) 223 Cal.App.3d 606; People v. Stoll (1989) 49 Cal.3d 1136; People v. Nokes (1986) 183 Cal.App.3d 468; In re L.S. (1987) 189 Cal.App.3d 407.)
After entering his plea in 1987, appellant did not file a motion for new trial or an appeal from the plea. Appellant's petition for writ of error coram nobis
In 2014, appellant filed a petition for writ of error coram nobis in the Superior Court of Kern County. In his petition, appellant argued his no contest plea must be reversed because the court failed to properly find a factual basis for the plea at the time of his plea hearing in 1987. He also submitted the Attorney General's Final Report as a supporting exhibit, and argued that the report showed that when his case was being investigated, law enforcement officials used poor investigative procedures that culminated in the discredited satanic cult allegations in other cases. Finally, appellant relied on declarations signed by his own children in 2014, where they stated that he never molested them and the law enforcement investigators coerced them into making accusations against appellant and other suspects. Appellant did not submit any evidence that Brooke H. had recanted her allegations against him.
After lengthy procedural hearings and discovery disputes, the superior court summarily denied appellant's petition without conducting an evidentiary hearing, partially in response to statements by appellant's retained attorney that they were not prepared to proceed with an evidentiary hearing. Appellant has filed this appeal from the court's denial of his petition.
A petition for writ of error coram nobis "is an attack upon a judgment which has become final and in favor of which there are strong presumptions of regularity ...." (People v. Adamson (1949) 34 Cal.2d 320, 329-330).) The petition is a limited remedy and the moving party bears a heavy burden to show that he should obtain relief. (People v. Kim (2009) 45 Cal.4th 1078, 1091 (Kim); People v. Ibanez (1999) 76 Cal.App.4th 537, 548-549.)
Based on the nature of his plea and his current status, appellant is foreclosed from filing a petition for writ of habeas corpus for any type of relief in this case. "For a defendant still in actual or constructive custody, a petition for writ of habeas corpus in the trial court is the preferred method by which to challenge circumstances or actions declared unconstitutional after the defendant's conviction became final. [Citations.] But once a defendant has been released and is no longer subject to parole or probation, he or she is no longer in constructive custody and this avenue is foreclosed. [Citations.] Moreover, collateral consequences of a criminal conviction - even those that can later form the basis of a new criminal conviction - do not of themselves constitute constructive custody. [Citation.]" (People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1149.)
"[A] party no longer in constructive custody may not challenge his or her obligation to register as a sex offender by way of a petition for writ of habeas corpus. [Citation.]" (People v. Picklesimer (2010) 48 Cal.4th 330, 339.) Once appellant entered his plea in 1987, he was immediately released and not subject to probation or parole. Appellant is not in actual or constructive custody, and the court's order to register as a sex offender does not constitute constructive custody. (Ibid.) As a result, appellant relied on coram nobis to seek relief in this case.
Appellant's petition and supporting exhibits raise serious contentions about the manner in which the allegations were investigated, how the children were interviewed, and whether the original charges filed against appellant and his wife may have resulted from suggestive interview techniques. As in past cases before this court, we again express our concern about how child molestation cases from that era were investigated.
As we will explain, however, based on the strict requirements for relief under coram nobis, appellant's petition had several evidentiary deficiencies. As a result, the superior court did not abuse its discretion when it summarily denied the petition without conducting an evidentiary hearing.
While we are compelled to affirm the superior court's order based on these evidentiary deficiencies, appellant is not foreclosed from filing another petition for writ of error coram nobis with the appropriate supporting evidentiary exhibits that cure these deficiencies.
FACTUAL AND PROCEDURAL BACKGROUND
In support of his petition for writ of error coram nobis, appellant submitted as an exhibit the probation report prepared at the time of his plea and sentencing proceedings in 1987. In the absence of other evidentiary support, and in order to put appellant's contentions in context, we begin with the probation report's factual summary of the underlying offenses, mindful that the summary may not be admissible for the truth of the matter asserted therein.
Appellant was married to Cheryl G. They lived in Bakersfield with their two children. As of 1987, Melissa G. (Melissa) was nine years old, and Tyson G. (Tyson) was seven years old.
The criminal offenses alleged in this case began with an investigation on July 3, 1984. As summarized by the probation report:
"On July 3, 1984, five-year-old [Brooke H.], the victim in this matter, was interviewed by a deputy from the Kern County Sheriff's Office, and a social worker from Child Protective Services. Brook [sic] indicated that when she went to her Dad's house, she played with Melissa [G.], her Dad [appellant], and Melissa's brother. Brook [sic] stated they would play until Melissa's Dad, [appellant], a defendant in this case, would call her into a room. Brook [sic] indicated the room was either the living room or the bedroom. She stated that [appellant] would tell her to take off her shoes, her dress, and her panties. Brook [sic] indicated that [appellant] was wearing no clothing during these incidents. She stated the incidents happened approximately three times and that [appellant's] children, six-year-old Melissa and four-year-old Tyson, were in the room each time."
According to the probation report, Brooke stated appellant perform several acts of sexual molestation on her and the other two children, and "[w]hile this activity was taking place, Brook [sic] stated that [appellant] gave her drugs which made her feel sick."
"During one incident, Brook [sic] indicated that there was also a Black man in the room, whom she later identified as Willard Lee Thomas. Brook [sic] stated that Thomas just watched the activities, but noted that he had his clothes off. When asked if Thomas had ever touched her butt, she replied, 'yes, with his hand.' Later, during the interview, Brook [sic] stated that Melissa's Dad [appellant] had put a shot in her arm. She noted that they ([appellant] and Thomas) did not give the shot at the same time they gave her the pills. She later stated that Thomas had put his mouth on her vagina." The charges
The instant record does not contain a copy of an information or amended information reflecting the charges against appellant and the codefendants. According to the probation report, appellant was charged in case No. 27986 with 45 counts of violating section 288, subdivision (b), commission of forcible lewd or lascivious acts; and one count of conspiracy (§ 182) with six overt acts. Appellant was held in custody almost continuously from June 27, 1984, until the time of his plea hearing in 1987.
In his petition and appellate brief, appellant asserts that he was originally charged with four counts of violating section 288, subdivision (a); but that he eventually agreed to the plea bargain to avoid the risk of being found guilty "of more than 118 serious sex offense charges, and his exposure to a sentence in excess of 900 years." While this may have been the case, appellant did not submit any evidentiary exhibits, or a declaration based on his own personal knowledge as the defendant in the criminal case and the petitioner in this case, to support these statements about the number of charges and potential sentencing exposure he faced at the time of his plea hearing.
THE PLEA HEARING
Both appellant and the People filed as an exhibit in this matter the reporter's transcript of appellant's plea hearing, conducted by Judge Jelletich on January 22, 1987. The transcript's caption states that as of that date, the named defendants in case No. 27986 were appellant, represented by attorney Dominic Eyherabide; Cheryl G., his wife, represented by Vince Garcia; and Willard Thomas, represented by Louis Signer. Deputy District Attorney Steve Tauzer appeared for the People. Codefendant Thomas's plea
At the January 22, 1987, plea hearing, the court began with Willard Thomas's case. Mr. Signer and Mr. Tauzer stated that Mr. Thomas would plead no contest to charges in two separate actions. In case No. 27986, where he was apparently a codefendant with appellant, Mr. Thomas would plead no contest to an amended count of felony child endangerment (§ 273, subd. (a)(1)), for the upper term of six years; and he would be released immediately based on time served and placed on probation for three years. Mr. Thomas would also plead no contest to unlawful sexual intercourse in the trailing case No. 31780, for a concurrent term. Neither plea required registration as a sex offender.
The court advised Mr. Thomas of his constitutional rights, and asked his attorney for a stipulation for a factual basis. Mr. Thomas's attorney replied that, pursuant to the negotiations and disposition, there would not be a stipulation and Mr. Thomas was pleading no contest because he believed the pleas were in his best interests.
The court advised Mr. Thomas's attorney:
"I have read all the transcripts, I read everything that's been - under prior testimony, I certainly do find there's a factual basis for the plea, based on all the matters I've read in the preliminary hearings."
Mr. Thomas's attorney stated that pursuant to the plea bargain, Mr. Thomas was allowed to state "that there is no factual basis for the plea in his behalf; I join in that statement on Mr. Thomas' behalf, and that pursuant to the plea discussion, Mr. Thomas is free, through me, to state, that the reason for taking this plea is that it is in his best interests to take this plea, and he feels it's in the best interests of co-defendants and other people not named in this proceeding. And it's on that basis that he enters the plea, your Honor, and it's on that basis that counsel join."
Mr. Tauzer stated that was acceptable to the People. The court replied that it had already made the finding. The court continued to advise Mr. Thomas of his constitutional rights.
Thereafter, Mr. Thomas pleaded no contest to child endangerment in case No. 27986 (the plea did not specify the victim); and no contest to unlawful sexual intercourse with Theresa C. in case No. 31780. The court granted the People's motion to dismiss the remaining charges against Mr. Thomas; the record does not specify those charges.
The court again stated that "based upon everything I did read, I did find a factual basis for the plea. I read all the transcripts of all the other hearings, including the juvenile court hearings, and the Court does make a factual finding for the plea, and I take it as a guilty plea."
The court granted the People's motion to release Mr. Thomas immediately, and set the sentencing hearing. Appellant's plea
Immediately after taking Mr. Thomas's plea, the court turned to appellant's plea. Mr. Tauzer stated appellant would plead no contest to the first count in the second amended information in case No. 27986, that he committed lewd and lascivious conduct on Brooke H. (§ 288, subd. (a)), and it carried the requirement to register as a sex offender. Mr. Tauzer stated that appellant would be sentenced to the lower term of three years, and he would be released immediately based on time already served.
The record does not contain a copy of any of the criminal complaints or informations filed against appellant.
After Mr. Tauzer stated the terms of the plea agreement, the following exchange occurred between the court and Mr. Eyherabide, appellant's attorney:
"MR. EYHERABIDE: [I]t's also agreed that there would not be a factual basis for the plea being entered, or stipulated to, and that has been agreed to by the prosecution.
"THE COURT: I feel the Court, on reading everything, I could find a factual basis for the plea.
"MR. EYHERABIDE: Well, it's my understanding that there will be no factual basis.
"MR. TAUZER: The only agreement is the defendant can plead guilty claiming no factual basis. The Court is free to do what it wants to do.
"MR. EYHERABIDE: It's my understanding the Court isn't going to do that.
"MR. TAUZER: We have had no such discussion.
"MR. EYHERABIDE: Well, my understanding is that the customary process is that there is a stipulation of factual basis for the plea, and in this case -
"THE COURT: Well, a factual basis the Court will find from reading everything and reading all the prior matters, that I find there's a factual basis to substantiate the plea of no contest. Is that fair enough?
"MR. EYHERABIDE: Are you willing to let the judge do that? The judge is going to make a factual basis for the plea, based on review of the court file. It was my understanding that there was not going to be any factual basis whatsoever, no finding by the Court, no stipulation by counsel, that that matter would - the record would be silent on that matter.
"MR. TAUZER: I have never had any such discussion, and we can —
"MR. EYHERABIDE: There was specific discussion about the factual basis."
In his petition for writ of error coram nobis, appellant argued his plea was invalid because the court never found a factual basis for the plea.
After an off-the-record discussion, Mr. Eyherabide said that appellant was willing to go ahead with the plea, and he would "simply not stipulate to a factual basis for the plea, and allow the Court to do what it will with respect to whether it will make a factual basis." (Italics added.) The court replied:
"Remember, I spent December reading everything. I feel, on reading all the prior testimony, under oath, there's a factual basis for the plea."
The court advised appellant of his constitutional rights, including that he was giving up his privilege against self-incrimination. Mr. Eyherabide interrupted: "Your Honor, with all due respect, I don't believe he's incriminating himself by a no contest plea, although I realize the Court will accept it and treat it as a guilty plea in terms of sentencing," but appellant was not "directly incriminating himself, he's just saying I choose not to fight the charges."
"MR. TAUZER: Your Honor, I think if you would just instruct him that the result of this plea is that he gives up his right against self-incrimination.
"THE COURT: Do you understand that?
"[APPELLANT]: Yes, sir."
The court advised appellant that he would be required to register as a sex offender, and appellant said he understood.
The court again addressed the factual basis: "And we went through the factual basis. The Court will find a factual basis, based on everything it has read, for the plea...."
The court asked appellant if he discussed the plea with his attorney, if he understood the plea, and if he was entering the plea freely and voluntarily. Appellant said yes.
The court asked appellant if any promises had been made other than the discussions in open court. Mr. Eyherabide said:
"Well, I would only say that - the fact that his wife's being dismissed is certainly something Mr. Gonzales is considering, I mean, it was understood if he entered this plea, that the charges against his wife would be dismissed." (Italics added.)The court acknowledged that it would next address Cheryl G.'s case.
In his petition and on appeal, appellant asserts that one of the reasons he entered his no contest plea was "to have all the charges against his wife Cheryl [G.], and Brad & Mary Nokes dismissed as well." Appellant submitted the transcript of his plea hearing as an exhibit to his petition and, as set forth above, appellant's defense attorney explained that he was entering his plea with the understanding that all charges against his wife would be dismissed.
As to Brad and Mary Nokes, however, appellant did not submit any direct evidence or a declaration, based on his own personal knowledge as the defendant in the criminal case and the petitioner in this case, about his understanding of the plea agreement, the Nokeses' involvement in this case, what they were allegedly charged with, or whether the charges against them were dismissed as part of his plea agreement.
In People v. Nokes, supra, 183 Cal.App.3d 468, this court stated that Brad and Mary Nokes were charged with 133 counts of committing lewd and lascivious acts against their children, Melissa G. and Tyson G. (apparently appellant's children), and other children; and that Melissa G. testified against them at their preliminary hearing and described numerous sexual molestations committed by appellant and the Nokeses at their homes. (Id. at pp. 471-472.) Nokes is a published case readily accessible by the public; appellant could have easily included the opinion as an exhibit to his petition to provide evidentiary support for his statements about their involvement in his own prosecution.
Thereafter, appellant pleaded no contest to the commission of a lewd and lascivious act on five-year-old Brooke H., a child under the age of 14 years, in violation of section 288, subdivision (a), as alleged in the second amended information in case No. 27986.
The court accepted the plea and again said it had found a factual basis for the plea.
The court granted Mr. Tauzer's motion to dismiss all remaining charges against appellant. The court also granted his motion to dismiss all charged against Cheryl G. In doing so, neither the court nor the parties stated the number or nature of charges against appellant and his wife that were being dismissed.
In his petition and on appeal, appellant asserted that the court dismissed 117 counts in exchange for his plea. While this assertion may be correct, appellant again failed to include any evidence to support this assertion, such as the information in case No. 27986, or a declaration based on his own personal knowledge, as the defendant in the criminal case and the petitioner in this case, about the charges that were filed against him and pending at the time of the plea agreement, and any other reasons he had for accepting the plea agreement.
The court set appellant's sentencing hearing for February 19, 1987. The court denied appellant's request to be released from the courtroom, and ordered him to return to jail for processing through the regular channels.
The court next turned to Cheryl G.'s case. The court again granted the People's motion to dismiss all charges against her, and granted defense counsel's motion to exonerate her bond. Probation report
We return to the 1987 probation report for further context to this case. The report stated that appellant would be sentenced to three years pursuant to the plea agreement, with the term deemed already served based on appellant's time in custody, and he would not be placed on probation. The report stated that a plea agreement in such a case was normally prohibited "unless evidentiary problems exist in the People's case," and that "such problems do exist, thereby making the negotiated plea acceptable."
The probation report did not specify the type of "evidentiary problems" that existed in the case.
Appellant's statement
The probation officer reported that appellant made the following statement in anticipation of the February 1987 sentencing hearing:
"[Appellant] stated he does not believe in plea bargaining and had wanted to take his case to trial to expose the injustices of this case; however, he felt the Jury might be sympathetic to the children and he would subsequently be locked up for a long time. He added that bail was continually refused throughout this entire incident and he wanted to 'fight the system from the outside rather than from the inside.' He added that he and several other people involved in this case are currently sueing [sic] the county for incompetent investigation, among other things. He stated he fears that the incompetence in this case may cause future problems for other kids who have actually been molested. He stated he hopes the pendulum does not swing the other way, where children are not believed (by authorities).
"[Appellant] stated that at this time, his children are still in a foster home and he and his wife are currently seeing a therapist in an effort to reunite them with their children. He stated since he has to register as a Sex Offender, he informed his wife that he would move out of the home if necessary in order to allow her to regain custody of the children. He added that it bothers him that he will have to register as a Sex Offender, but stated that he will be working on a pardon from the Governor.
"In conclusion, [appellant] stated that the childrens' allegations were 'sick' and he never could do that (the crimes alleged) to the children."
Statement from Brooke H.'s mother
The probation officer also reported the following statement from Brooke H.'s mother:
"Mrs. [H.] feels that [appellant] is guilty and stated, 'I'm sorry he's out.' Regarding Defendant Thomas[,] ... Brook [sic] had told her that a Black man had been present when Defendant Gonzales molested her;
however, it wasn't until Brook [sic] had been questioned by the social worker and the deputy that the name of Defendant Thomas came out.Sentencing
"Mrs. [H.] stated the entire case has been traumatic to her family and all involved. She feels that had the investigation been handled properly, the prosecution of the case would have been speedier and justice would have been served. As it was, the incident set her family back emotionally and financially, as she was out of work for one year. Although she feels [appellant] molested Brook [sic], she feels the system was also unfair to him, as 'he had to sit in jail not knowing if he was going to be prosecuted or not.' Basically, she feels there was a real flaw in the system and in the way the case was handled.
"At this time, Brook [sic] is again living with her mother and receiving therapy. For six months, Brook [sic] lived in a foster home and Mrs. [H.] was not allowed to see her. When Brook [sic] initially returned home, she regressed and was withdrawn. Although Brook [sic] is progressing well in therapy now, she still has fears of being taken from her mother.
"According to Mrs. [H.], Brook [sic] expressed much apprehension at having to return to Court and that her therapist requested that she be allowed to avoid Court, as it could cause a major setback to her progress.
"Mrs. [H.] said that as far as she knows, Brook [sic] had only gone to the Gonzales home on three occasions over a one and one-half month period, and she feels that it was during the third visit that Brook [sic] was molested by Defendant Gonzales, as she refused to return to his home from then on. After this visit is when Mrs. [H.] noticed a drastic change in Brook's [sic] personality and she subsequently took action to find out what had happened.
"In conclusion, Mrs. [H.] is mostly upset with the Kern County Sheriff's and Welfare Departments for their various interrogations and improper handling of the case. She stated that Brook's [sic] therapist advised her that Brook [sic] will probably need to receive therapy again when she reaches adolescence."
Appellant did not include a transcript of his 1987 sentencing hearing or the abstract of judgment. In his petition and the related proceedings, appellant stated that he was sentenced pursuant to the negotiated disposition, to three years with credit for time served, and ordered to register as a sex offender. Appeal/postplea motions
Based on the record before this court, it appears that appellant did not file any postplea motions for relief from his no contest plea, or request a certificate of probable cause to file an appeal from the plea and sentence.
APPELLANT'S PETITION FOR WRIT OF ERROR CORUM NOBIS
Appellant's petition
This appeal is based on appellant's petition for writ of error coram nobis and post-judgment motion to withdraw his plea, filed on October 14, 2014, in the Superior Court of Kern County. Appellant was represented throughout the writ proceedings and in this appeal by attorney Robert Salisbury.
In his petition, appellant asserted that he only entered his no contest plea in 1987, to a crime he never committed, because his trial attorney convinced him that it was not worth the risk to go to trial since he faced 118 felony counts and a possible sentence of 900 years. He was promised that if he pleaded no contest, the charges against his wife, Cheryl G., and Brad and Mary Nokes would be dismissed, and appellant would be immediately released based on time served.
Appellant further asserted that he was now moving to withdraw his plea because if he had known "about the coercion, and been able to prove the lies of the alleged victim he would not have pled to the offense, and would have taken the matter to trial." (Italics added.) Appellant's petition raises the following rhetorical assertion:
"What jury has ever found a Defendant innocent of 117 counts of the same crime, yet then found him guilty of one count of the same crime? Petitioner is asking that the case be dismissed in light of his innocence, which will allow him to set aside his lifetime sex offender registration requirements."
Appellant raised three arguments in support of his petition. First, appellant argued there was no factual basis for his plea as required by section 1192.5. He argued that since his defense attorney never stipulated to a factual basis, and he personally refused to stipulate, the court's findings of a factual basis were insufficient and his plea was invalid.
Appellant's second argument is based on the 79-page final report issued by the California State Attorney General's Office on the Bakersfield Child Molestation Investigations (hereinafter referred to as the Attorney General's Final Report), dated September 1986. Appellant submitted the Attorney General's Final Report as an exhibit to the petition.
In his petition, appellant asserts that the Attorney General's Final Report demonstrated that when appellant's case began in June 1984, members of the Kern County District Attorney's Office, Sheriff's Department, and Child Protective Services were not adequately trained and used poor investigative procedures during the child molestation prosecutions, the investigation was not conducted in a thorough and objective way, and officers improperly allowed a social worker to usurp their role to investigate the case. Appellant asserts that these poor procedures culminated in March 1985, when one of the child victims in one of the child molestation cases "made the first of many accusations of sexual abuse and satanic activities" against a deputy sheriff, a social worker, and a deputy district attorney; and two more child victims subsequently accused the same three officials of being part of a "molestation and satanic ring."
Appellant cited the Attorney General's Final Report for the following assertion in support of his petition:
"If any aspect of an investigation into child sexual abuse could be called critical, it would be the victim's interviews. The manner and frequency of these interviews [sic].... In the Kern County case, some Sheriff's Deputies interviewed the victims repeatedly, covering old ground, reiterating other victims statements, failing to question the children's statements, and urging them to name additional suspects and victims....
"Despite published state guidelines that caution against multiple interviews, sheriff's deputies interviewed victims a total of 134 times. One child was interviewed 24 times by sheriff's deputies and a total of 35 times throughout the investigation. Children were pressured, and urged to answer in a way that reinforced previous statements .... Had investigators obtained additional corroborative evidence, the victim statements would not have played as critical a role as they did. Unfortunately, the flaws in the conduct
of the interview undermined the credibility of the children, magnified the lack of corroborative evidence, and seriously marred the investigation. The Kern County District Attorney's staff also interviewed the victims on numerous occasions, but interviews were not taped or logged so no accurate count is possible."
While appellant quoted extensively from the Attorney General's Final Report in his petition, he failed to include citations to the report even though he included it as an exhibit to his petition.
Appellant's third argument in support of the petition is that the majority of children who were alleged to be victims in the Bakersfield child molestation cases have since recanted their testimony and denied any of the events occurred.
In support of this third argument, appellant attached declarations from his own two children and other individuals who had been named as victims in these cases in 1984 to 1986, recanting their allegations and stating that they were coerced into make the allegations against him and other suspects.
Appellant did not submit his own declaration, based on his own personal knowledge as the defendant in the criminal case and the petitioner in this case, about the nature and terms of his plea, the charges against him, his potential sentencing exposure, the reasons he accepted the plea agreement, or addressing the children's accusations or recantations.
Within appellant's petition, he cited to statements purportedly made by Judge Ferguson at a hearing on September 23, 1985, where he found overwhelming evidence that Brooke H. was not molested by her parents, and returned the child to their custody. However, appellant has not included any evidence, such as the transcript, in support of this alleged quotation.
Based on these three arguments, appellant asserted that a petition for writ of error coram nobis was the proper procedure for a post-judgment challenge to his plea. Appellant argued his plea was not the product of free and clear judgment because it was given "in ignorance of the true state of the circumstances of the allegations made by the alleged victim."
Appellant acknowledged the trial court did not act "in any fashion that was improper" in taking his plea, but the result was one "that this court should and can remedy," and he has been diligent "since the discovery of the exculpatory information in bringing this action."
THE PETITION'S EXHIBITS
Appellant's petition was supported by several documentary exhibits. As we have already explained, the exhibits included the probation officer's report prepared after he entered his plea in 1987; the reporter's transcript from the January 22, 1987, hearing where appellant pleaded no contest; and the 79-page Attorney General's Final Report, dated September 1986.
The exhibits also include a printout from the "National Registry of Exonerations" containing hearsay statements about other child molestation cases from that time, where the victims recanted their allegations.
Declarations
Appellant submitted as supporting exhibits several declarations from individuals who had been alleged as either perpetrators or child victims in the cases. These declarations were signed under penalty of perjury in 2014.
Cheryl G.'s declaration (exhibit No. 4)
Cheryl G., appellant's former wife, was married to defendant at the time he was arrested; appellant and Cheryl are the parents of Melissa and Tyson.
Cheryl declared that one evening in 1984, Deputy Bill Rutledge of the Kern County Sheriff's Department arrived at their home and took appellant into custody, and a social worker removed their children from their home. Rutledge stated appellant had sexually molested Melissa. Cheryl G. was subsequently arrested and taken into custody.
Cheryl declared appellant accepted the plea offer in 1987 to "protect their friends and family members from further injustice and persecution." She declared that she later regained custody of the children.
Jack Cummings's declaration (exhibit No. 8)
Jack Cummings declared he was a friend of appellant. Jack declared that his sons, Joseph and Donnie, were alleged to be among appellant's victims. His sons claimed that Jack committed certain acts, but he was not charged with any crimes.
Jackie Cummings's declaration (exhibit No. 10)
Jackie Cummings, Jack's wife and the mother of Joseph and Donnie, declared she was a friend of appellant and his wife. Jackie further declared that her niece and nephew, Angela and Michael Nokes, were later alleged to have been victims of appellant.
After appellant and his wife were arrested, appellant's children were placed with their grandmother. Jackie occasionally babysat appellant's children. Jackie declared that she asked Melissa whether appellant really did those things. Melissa said, " 'Nope, that's just what they made me say.' " Jackie declared that Melissa was removed from her grandmother's custody after making these statements.
Melissa's declaration (exhibit No. 5)
Melissa, appellant's daughter, declared that nothing ever happened between appellant and herself of a sexual nature, and he never touched her in an inappropriate manner or place. She further declared that when she was six years old, she was asked questions regarding sexual molestation, and whether or not appellant and several other adults touched her inappropriately or did anything sexually to her.
"The police, and social services workers, coerced me into making certain statements. They coerced me into saying that there were sexual relations between my father, other adults, and me. The Police and Social Workers coerced me into saying that they were dealing in satanic cult issues. Everything I stated for the record was fed to me by the police investigators and Social Services workers, which I repeated back on record. [¶] None of the statements I made regarding sexual or satanic allegations were true. As a child I was forced to make those statements, so I did."
Melissa declared that she spoke to detectives and a social worker, and recalled that one of the officers was Deputy Bill Rutledge of the Kern County Sheriff's Department.
"I don't remember the names of the people who would prepare me for my testimony; but I was systematically prepped for each and every testimony I gave. They would spend countless hours working on statements regarding activities they wanted me to testify about. All of those statements were made up by the police officers and Social Services Workers. None of the statements were true. Since I was only six (6) years old, they would not listen to me."
Melissa declared that when she was removed from her parents' home, she was placed in a foster home where "[t]hey would have me watch movies specifically about satanic cults.... This is how the satanic cult testimony was introduced to me, feeding me a fictitious culture, so I would have a more believable testimony. I was forced to state that the things happening in those movies happened to me. However, none of those things ever happened to me."
Melissa declared that the police and social workers also wanted her to say that appellant " 'ate babies' " and she saw children die, even though she never saw anything like that.
"Those statements were made up and feed [sic] to me by overzealous detectives and social workers. I stated that children had died and that I had brothers and sisters that had died due to satanic rituals. I was made to state that my parents had children just so they could sacrifice them later. I never saw my mother pregnant and I never saw any brothers or sisters that 'disappeared'. I have only ever had one brother ....
"I do recall making statements that [appellant] molested me. Those statements are NOT true. I was coerced into making those statements by being relentlessly prepped and prepped until I gave the police officers, social workers and district attorneys the answers I thought they wanted to hear. It was the only way to make the questioning stop. I like to please others, so I felt a lot of pressure to say what they wanted to hear. I was alone, at a strange location, and I didn't know where I was. That made the pressure to please these people even stronger. I was plain and simply scared."
Melissa's declaration also addressed Brooke H., the named victim in the count to which appellant pleaded no contest in 1987. Melissa declared that Brooke was a childhood acquaintance, but she never stayed at their house. Melissa did not know if Brooke was "forced to lie about the facts as I was, but I know that since I was forced to lie, Tyson was forced to lie, the Cummings' were forced to lie, it is reasonable to believe that all of the children were forced to lie."
Tyson's declaration (exhibit No. 6)
Tyson, appellant's son, declared that he was four years old when the case began, "so the fine details are a little hazy."
Tyson declared he became hysterical when he was taken from his parents' home. Tyson declared that the police "tried to get me to play with dolls," and he refused because he was a boy and wanted to play with other toys. He was told that he had to play with the dolls and " 'tell us where the adults were touching you.' " Tyson declared that he couldn't "go outside until I finished with what they wanted me to do. I had to pretend that people touched me in places that no one had ever touched me if I wanted to play with boy's toys."
Tyson further declared:
"The police and social services workers tried to make me tell them things that never happened. Eventually, I broke down and told them the lies they wanted to hear so they would leave me alone. I hoped that if I told them what they wanted to hear, that I could go back home. That was just another lie that they told me."
Joseph Cummings's declaration (exhibit No. 7)
Joseph Cummings (Joseph) is the son of Jack and Jackie Cummings, and the brother of Donnie.
Joseph declared that he and his brother were taken from their parents and placed in protective custody. They had "constant visits" from the police and social services. "They would tell us what was happening. Instead of asking us questions they told us what we were supposed to have had happened to us.... [¶] They would tell us what they wanted us to say without asking if anything had really happened. None of the stuff we had to say had ever happened."
Joseph declared that after they were taken from their parents, they were placed with a family who "coerced" and "instructed" them about "what we had to testify to," and "prepare us to tell the authorities what we were supposed to say to them." Joseph declared that "the authorities" told him that appellant and Joseph's father " 'ate babies.' "
Donnie Cummings's declaration (exhibit No. 9)
Donnie Cummings (Donnie) is the son of Jack and Jackie Cummings, and the brother of Joseph.
Donnie declared that he and his brother were removed from their parents and placed in Jameson Center. He declared that "strangers" asked them about whether their parents were touching them or "doing inappropriate things to us. They asked us the same questions over and over again." The questioners repeatedly asked whether they were sure something did not happen. After a few weeks, they suggested that maybe certain things happened, but the brothers "answered truthfully and not how they wanted us to answer."
"It continued to get worse and worse, and the acts that they were trying to get us to say just kept getting worse and worse. Until finally it was full blown I felt that they were wanting us to say certain things and when we said those things, they were happy about it. I just gave up and started saying what they wanted me to say, even though none of it was true...."
Donnie declared that questions about sexual acts "got progressively worse," and the questioners used dolls and stuffed animals to show them sexual positions and ask if they had been touched there.
Donnie declared that nothing of a sexual nature happened to him or his brother, and his parents and appellant never did anything "we said had been done to us."
Roy Nokes's declaration (exhibit No. 11)
Roy Nokes declared he was present at the courthouse and had personal knowledge of an incident when Steven Tauzer, the prosecutor in appellant's case, said "he would drop all charges against Brad and Mary [Nokes], who had numerous charges against them. If I recall correctly, I think there were approximately a hundred or so charges and they would have prison time for about 200 years. He said he would drop all of the charges against Brad and Mary if I [sic] would go ahead and prosecute [appellant] and Will Thomas." Mr. Nokes declared that appellant and Mr. Thomas each pleaded to one count "so they could go home with their wives." Transcript of Susan G.'s testimony (exhibit No. 12)
Appellant attached as an exhibit to his petition a transcript from a hearing on September 13, 1985, in a case captioned: "In the Matter of Susan [G.]." Appellant has not provided any factual context for this transcript, but it reveals that Susan G. was alleged to have been molested by appellant and other people. The transcript appears to be from a juvenile proceeding where Susan's parents sought to regain custody of her.
At this juvenile hearing, Susan G. testified that she was a friend of appellant's children; she had already testified against appellant and his wife at their preliminary hearing; she knew Leroy Stowe and testified against him at his jury trial; and she knew Stowe's son, Tootie.
Susan G. testified she was sexually molested numerous times by appellant, he gave her shots and pills, and he showed bad pictures and movies. Susan testified that Brad and Mary Nokes (parents of Michael and Angela Nokes), Leroy Stowe, and Will Thomas were at appellant's house when she was molested, and she was also molested by her own father.
Susan G. testified that she was interviewed by social worker Cori Taylor about these incidents. Susan testified that Taylor also molested Susan and other children at appellant's house, and Taylor told her not to tell anyone about it.
Susan G. testified that babies were killed at appellant's house and Will Thomas's church in Lamont. Susan testified the police drove her around and she pointed out places where babies were killed, including the church. Susan G. said she used a knife, and joined other adults and children as they killed babies at appellant's house, and she drank the baby's blood.
Susan G. testified that the parents of Brooke H. killed babies at appellant's house and at the H. family's house.
Susan G. testified that Brooke H., Michael and Angela Nokes, Tootie Stowe, Crystal P., appellant's children, and other children killed babies. Transcript of Melissa G.'s testimony (exhibit No. 13)
Another exhibit consists of excerpts from a reporter's transcript on May 19, 1986, in the criminal case against appellant and his wife. Appellant has again failed to provide any factual context for this transcript, but it appears to be from their preliminary hearing. Appellant has only provided excerpts from this hearing from the cross-examination of appellant's daughter, Melissa.
On cross-examination, Melissa testified she went to group therapy sessions with her brother, and with Michael and Angela Nokes, Susan G., "Crystal," and several other children. They all talked about who molested them.
Melissa testified that Michael and Angela Nokes were also molested at her house by their own parents, Brad and Mary Nokes; Melissa's own parents; and social worker Cori Taylor.
Melissa testified that lots of babies were stabbed and killed at her house, a church, and the Nokes house. Melissa testified she stabbed a baby and the bodies were burned in the backyard of her home. Undated and unidentified transcript (exhibit No. 14)
Appellant submitted as an exhibit an undated reporter's transcript that is not identified with a caption page. There are handwritten notes that the testimony is from "Crystal," and the transcript reflects that an attorney was questioning "Crystal." Appellant has again failed to provide any factual context for this transcript.
Crystal testified that social worker Cori Taylor told her that other kids said bad things happened at appellant's house; Taylor told her to say bad things happened even if they did not happen; and these things really did not happen.
In response to several questions from the court, Crystal testified that appellant and his wife did not do anything to her, and nothing happened.
Appellant's petition does not include any admissible evidence that he was charged with sexually molesting his own children, Joseph, Donnie, Susan G., and/or "Crystal." While he may have faced criminal charges based on the statements from these children, he did not submit a complaint, information, or even a declaration, based on his own personal knowledge as the defendant in the criminal case and the petitioner in this case, explaining the scope of charges that were filed against him and the victims named in those charges.
THE PEOPLE'S RETURN TO APPELLANT'S PETITION
Appellant's petition for writ of error coram nobis was filed on October 16, 2014. On December 1 and 8, 2014, appellant and the People, respectively, filed motions to continue the proceedings. On December 8, 2014, Judge Bush held a hearing on the parties' motions to continue. Appellant's counsel said he needed to request documents from juvenile court. The court instructed counsel that if he needed juvenile records, he had to file the appropriate petition in juvenile court. The parties agreed to continue the matter to February 2015.
On February 9, 2015, the People filed the return to appellant's petition and argued he was not entitled to relief under coram nobis for several reasons.
First, the People argued that appellant's claim that the court did not properly find a factual basis for his plea in 1987 raised an alleged error of law that was not cognizable on coram nobis. The People further noted that the transcript of the 1987 plea hearing showed that while appellant refused to stipulate to a factual basis, the court stated it had read the prior testimony and properly found a factual basis for the plea.
The People's return was supported by one exhibit, the same reporter's transcript of appellant's plea hearing on January 22, 1987, that appellant had submitted as an exhibit to his petition.
The People next argued appellant's petition was facially deficient because he failed to allege that certain facts were not known to him at the time of the plea. While appellant relied on findings in the Attorney General's Final Report, that report was dated September 1986 and appellant entered his plea in 1987, so that there were no facts "that were not known to [appellant] at the time of his plea."
The People addressed the declarations from appellant's children and other alleged victims which were signed in 2014, where they recanted their prior allegations against appellant. The People argued those recantations were not relevant to this matter since appellant was not convicted on their testimony:
"The declarations of recanting witnesses are none of the alleged victim, Brooke [H.], to which [appellant] pled guilty to. There is no evidence that Brooke [H.] has recanted."The People further argued that purported inconsistencies among witnesses were not relevant for purposes of claiming relief under coram nobis.
The People asserted that appellant failed to show due diligence in seeking relief under coram nobis or explain the 27-year delay between his plea and filing the petition, and the supporting exhibits did not show "any facts not known to him in 1987."
Finally, the People argued that appellant's claim of coercion was meritless and not supported by any evidence of extrinsic fraud to undermine the voluntariness of his plea.
INITIAL HEARINGS ON THE PETITION
In addition to addressing the merits of appellant's petition, we are compelled to review the procedural history of his discovery motions and pleadings that were rejected by the clerk's office, in order to address appellant's contentions that the court purportedly engaged in misconduct when it denied his discovery motions and the petition.
Motions to continue
On February 17, 2015, appellant filed a motion to continue the matter to April 2015; counsel declared new witnesses had come forward, he had not obtained records from a related juvenile hearing, and he needed time to subpoena witnesses.
On February 23, 2015, Judge Humphrey convened a hearing on appellant's motion to continue. The district attorney did not object, but asked appellant's counsel to advise him about any new witnesses; counsel agreed. The court set the next hearing for April 2015.
On April 16, 2015, appellant filed another motion to continue the matter to July 2015. Counsel's declaration stated that previous witnesses had identified additional witnesses, counsel needed time to interview new witnesses, and those interviews could lead to other witnesses. Counsel further declared that he had obtained records from the juvenile proceeding and needed time to subpoena witnesses from that hearing; counsel did not identify the juvenile hearing.
On April 24, 2015, Judge Somers transferred the matter to Judge Lua for all purposes.
On April 24, 2015, Judge Lua granted appellant's motion and continued the matter to May 28, 2015.
Status hearing on the petition
On May 28, 2015, Judge Lua convened a status conference on appellant's petition for writ of error coram nobis. The district attorney requested the names and addresses of appellant's prospective witnesses, along with any relevant written statements from the witnesses and any documentary evidence that appellant intended to introduce, including transcripts from other hearings. Mr. Salisbury, representing appellant, said he was not prepared to provide that information yet, but requested both sides serve documents clarifying their respective discovery requests.
The court ordered the parties to do so. The court set a compliance hearing for July 6, 2015, to address any discovery issues; a hearing on August 7, 2015, to address any pending motions; and an evidentiary hearing on the merits of appellant's petition on August 17, 2015.
Mr. Salisbury asked the court about the purpose of the motions hearing. The court said that if there was a motion that had to be litigated prior to the evidentiary hearing on the merits of appellant's petition, such a motion had to be filed before the scheduled hearing of August 7, 2015. The court would also address additional discovery matters at that time. The court admonished the parties that if there was going to be a request for a continuance of the evidentiary hearing on the merits, it expected an appropriate written motion. Mr. Salisbury asked if he had to file a motion to continue before August 7, 2015. The court said a continuance motion would be litigated on August 7, 2015, and counsel had file a written motion and set it for that date. Discovery hearing
On July 6, 2015, Judge Lua convened the scheduled hearing on pending discovery issues. The court stated it had discussed scheduling problems with the parties, and rescheduled the evidentiary hearing on the merits to October 7, 2015.
Appellant personally addressed the court, objected to continuing the evidentiary hearing, and asked to put something on the record. The court advised appellant to speak with his attorney. Appellant objected and said he would "go co-counsel, if I have to."
Mr. Salisbury explained that appellant did not want to postpone the evidentiary hearing on the merits to October 2015, because he was scheduled to register again as a sex offender in September 2015, and appellant hoped to have the matter completed before that.
Appellant again interrupted and said: "If I have to be registered again, I'm going to add another billion dollars onto the lawsuit that's following, and that's going to be on top of it."
The court again advised appellant to speak to his attorney. Appellant repeatedly interrupted the court. The court said it would kick him out of the courtroom if he spoke again. Mr. Salisbury said that appellant simply wanted to clarify why he objected to delaying the hearing on the merits to October 2015.
The court confirmed that there would be a hearing on motions on August 14, 2015, and the evidentiary hearing on the merits on October 7, 2015.
The court asked the parties if there were any pending discovery matters. Mr. Salisbury said he had given everything to the prosecution, consisting of a list of potential witnesses, but he did not receive anything of value from the People and he intended to file a motion about that.
The district attorney said she received a request from Mr. Salisbury for discovery of 25 items, and she had already responded to it. The district attorney explained:
"[A] lot of the items that Mr. Salisbury is requesting from the People just aren't in the People's possession. [¶] For example, CPS records are information from social workers, which we do not have, asking for a whole lot of things. So if Mr. Salisbury needs to file a motion to compel, he may do so. And I will, again, formally respond to the Court in that particular motion.
"He asked me for a list of witnesses that I intent to call. The People, at this point, are not calling any witnesses. It's not the People's motion. It's not the People's burden. This is a motion to withdraw a plea, which is a very, very limited narrow scope type of motion - does the defendant have a legal basis to set aside this plea or withdrawal? - so the People are not calling any witnesses.
"So I don't really have any discovery of people that I intend to call at the hearing. So that's kind of where we are. Mr. Salisbury did request reports. Unfortunately, like, for example, from Mr. Touser [sic], which I informed him he's no longer alive. I cannot provide things like that. And then he sent me a list of 40 names which include agents from the DOJ that worked on the Attorney General's incident report and special reports.
"So I still am vague or I'm still in the dark a little bit as to how some of these witnesses are relevant, but I guess we can get to that when we need to get there. But for now, I have what he intends to do. I'll be prepared to argue when we get to the hearing as far as who's relevant and who's not."
The district attorney clarified that she received discovery from appellant, with a list of names and generally what they would testify about. Mr. Salisbury said he submitted a list of all potential witnesses, including some that might not testify.
The district attorney advised the court that she contacted several people at the sheriff's department to look for "everything and anything they can connected with [appellant] around 1984. [¶] And what I have is what I've given over. So I'm somewhat limited in what the Sheriff's Department can give me because I have made that inquiry both with records, arrest records, and reports."
The court stated that on August 14, 2015, there would be a hearing on a motion for discovery "that will be filed and formalized and then I can rule upon those items one by one, so we can see where we're at." The court believed that the two-month period between the motions and evidentiary hearing would give the parties sufficient time "to comply with whatever discovery requests are ruled upon by this Court...."
APPELLANT'S MOTION TO COMPEL DISCOVERY
On July 30, 2015, Mr. Salisbury filed appellant's motion to compel the district attorney to produce further documents. The motion argued that appellant had met the "burden of proof" for his petition for writ of error coram nobis. The motion requested the court to order the People and law enforcement agencies to fully comply with his discovery demand for all evidence about the investigation of his case and his subsequent plea. In making these arguments, appellant's motion cited to the statutory provisions for discovery for civil cases.
Within his motion to compel, appellant also demanded discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) of personnel records and internal affairs investigative reports for Officer Bill Rutledge and Social Worker Cori Taylor. Appellant did not file a separate noticed motion for Pitchess discovery, and asserted his general discovery motion was sufficient to obtain these records.
Appellant also demanded discovery from the district attorney's office of all communications and reports that resulted in the preparation of the Attorney General's Final Report.
Mr. Salisbury filed a supporting declaration that the parties had attempted to informally resolve the discovery disputes but the People had failed to comply or disclose any documents.
On the same day, a document was filed with the caption: "Petitioner Gerardo Gonzales' Separate Statement in Support of Motion to Compel Further Production of Documents." This document consisted of appellant's own legal and factual analysis about his discovery requests and the district attorney's alleged refusal to comply.
As we will discuss below, the superior court properly refused to consider this pleading since appellant filed it as if he was representing himself, even though he was represented by retained counsel.
Respondent's opposition
On August 5, 2015, the district attorney filed opposition to appellant's motion to compel. The district attorney argued that discovery in criminal cases was exclusively governed by section 1054 et seq., instead of the civil discovery provisions cited in appellant's motion.
The district attorney stated it had complied with appellant's discovery requests and provided all documents that still existed, and that other documents had either been purged or were under the control of another governmental department.
The district attorney further asserted it did not have access to documents from Child Protective Services or the juvenile court, and social worker Cori Taylor was not part of the prosecution team. The district attorney argued that appellant needed to use the appropriate subpoena process to request records from the juvenile court. The district attorney again asserted that it did not possess any documents relating to the Attorney General's Final Report, suggested appellant contact or subpoena the Attorney General's office, and noted that appellant already had a copy of the final report.
Finally, the district attorney argued appellant had not complied with Pitchess, he was required to file a separate noticed motion, and he was not entitled to disclosure of any confidential personnel records.
The district attorney's opposition to appellant's demand for Pitchess evidence was correct. Appellant's discovery request for personnel records did not comply with the well-settled standards for filing a Pitchess motion set forth in Evidence Code sections 1043 and 1045, and discussed in People v. Mooc (2001) 26 Cal.4th 1216; Warrick v. Superior Court (2005) 35 Cal.4th 1011; and People v. Gaines (2009) 46 Cal.4th 172.
Motion rejected by the clerk's office
On August 10, 2015, the clerk's office of the Kern County Superior Court (clerk's office) sent appellant's counsel a preprinted form stating that his papers were being rejected/returned because the heading did not include the dates for the next scheduled hearings.
This notice was attached to a "Substitution of Attorney" form that Mr. Salisbury filed on August 6, 2015, where counsel stated that appellant would personally act as cocounsel with him in the matter.
HEARING ON APPELLANT'S DISCOVERY MOTION
On August 14, 2015, Judge Lua convened the scheduled hearing on appellant's pending discovery motion.
The court stated it had read and considered appellant's motion to compel further production of documents, the supporting points and authorities, and Mr. Salisbury's declaration; and the district attorney's opposition.
The court stated it had received and read, but would not consider, appellant's own separate statement in support of the motion to compel further production of documents. The court explained:
"While I did read [appellant's] Separate Statement, it is improper for the Court to consider it since [appellant] is not representing himself in this case, nor does he have any standing for the Court to properly receive this material.
"Additionally, if there were statements [appellant] would have liked to have made, the Court could have considered those statements in another facet, such as by way of a declaration and Affidavit or something of the like.
"But, Mr. Salisbury, the Court cannot consider the written statements by your client which, essentially, purports to demonstrate that he is seeking to represent himself in addition to having you represent him as his attorney."
Mr. Salisbury said that it would extremely difficult for the court to understand appellant's position without considering appellant's own personal separate statement. The court said it had read everything but it would not consider appellant's "Separate Statement ... since it is not a Declaration or an affidavit." The court further explained:
"By virtue of reading it, I did recognize that the verbiage used and contained within the Motion or the Separate Statement ... came from your client. Because of that, you are his attorney, and you should represent your client."
Mr. Salisbury said that a motion for substitution of attorney had been filed "to substitute me out and to substitute both of us in. [Appellant] wants to be attorney in pro per and me be an associate. In that case he is an attorney." (Italics added.)
Mr. Salisbury said that if the court denied that request, he would ask the court to continue the matter "so we can change it to an Affidavit in Declaration form in order for it to be considered."
Appellant interrupted and said he wanted to make a record. The court ordered appellant not to disrupt the proceedings and warned him that he would be removed. Appellant said he understood, but he kept talking and interrupting the court. After additional interruptions, the court found appellant in contempt and ordered him removed from the courtroom.
The court continued with the hearing and advised Mr. Salisbury that it did not know about the substitution request because it was rejected by the clerk's office on August 6, 2015. Mr. Salisbury complained he never received a copy and did not know it had been rejected.
The court asked whether appellant was a licensed attorney. Mr. Salisbury said no. The court replied that appellant could not substitute into the case as an attorney. Mr. Salisbury said appellant could act in pro. per. The court said that appellant would have to make a motion pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), and the court would conduct a Faretta hearing to determine whether he could represent himself in place of Mr. Salisbury.
"While the Sixth Amendment guarantees both the right to self-representation and the right to representation by counsel, a defendant who elects representation by counsel does not have a constitutionally protected right to appear as cocounsel [citations], and a defendant who elects self-representation 'does not have a constitutional right to choreograph special appearances by counsel' [citation]." (People v. Bloom (1989) 48 Cal.3d 1194, 1218.)
Appellant could not file pleadings as "cocounsel" while represented by Mr. Salisbury. As we have already explained, however, appellant could have supported the petition by signing a declaration under penalty of perjury, based on his own personal knowledge as the defendant in the criminal case and the petitioner in this case, to address certain evidentiary deficiencies.
The court turned to appellant's motion to compel further production of documents.
"Mr. Salisbury, the Court is going to be frank with you. When reading this motion, it appears very difficult to follow. Not only is it convoluted, it does not state, with any specificity or details, the actual documents that are being sought. It does not articulate by reference, at all, items in specificity. And rather, beginning on Page 3 regarding the information requested, it merely lumps in a number of items that the Court has no idea what is being sought.
"There was reference to two exhibits that should have been attached to this motion, preferably after the Declaration. And there was direct reference to Exhibit 1 and Exhibit 2, which the Court surmised, perhaps, could have been the Informal Discovery Request Memorandum that was sent to the prosecuting agency, in addition to, potentially, their Response to such request. Neither of those exhibits were attached to this motion; so to the extent that there was reference to exhibits, the Court did not have the opportunity to review such materials, since they were not attached to your motion.
"The Court, since it cannot determine and ascertain, with any specificity, what documents are being sought, is going to deny the motion in its entirety, without prejudice, to allow you an opportunity to, perhaps, organize your motion better with specificity and clarity, in addition to reasons why such material would be necessary in this case."
The court said it had read appellant's petition for writ of error coram nobis and the district attorney's opposition. In doing so, the court queried "whether the material that is sought at this point is merely a fishing expedition to hopefully substantiate the Petition that's already been filed." The court advised both parties:
"[W]hen we do have the [evidentiary] hearing on the Petition ... the Court is going to require an offer of proof as to the evidence that is going to be admitted for the Court's consideration, and how the offer of proof applies to a Writ of Error Corum Nobis in this case.
"There has been a lot of material that the Court has read given the petition, in addition to the motion for today's date, as it relates to what the Court would coin and deem 'information outside of this case.' And the Court is having a hard time finding the relevance behind such requests for information on unrelated matters, even though they are similar by context only in, perhaps, time frame.
"The Court, otherwise, is finding it difficult to understand the relevance.
"So, Mr. Salisbury, I anticipate you are going to file another motion. And we will litigate this issue when it is brought before the Court properly. But in doing so, recognize these comments, because those are the standards that the Court is going to judge the relevance behind the requested discovery materials as it relates strictly to the Writ of Error Coram nobis in the anticipated hearing."
The district attorney said that she had tried "to get as much information and documents as I can, even though I think, under the law and under the criminal statute, I may not necessarily have to. But I think, because of the nature of the case, I was trying to find as much as I could anyway ...."
The court reset the motions hearing for September 25, 2015, with the evidentiary hearing on the merits of the petition still set for October 7, 2015.
"If there is a Faretta motion filed, the Court will certainly entertain that motion at the date and time upon which it is requested.
"Hopefully, if there are to be comments that the Court is to consider attributable to [appellant] in an official capacity, then a Faretta motion would have to be conducted prior to the discovery motion."
Mr. Salisbury asked if a Faretta motion had to be brought before the next hearing, or whether it could be heard at the same time as the motion to compel. The court said a Faretta motion could be brought at the next hearing, "[b]ut if there is going to be a Separate Statement filed, again, then the Court is not going to consider it." Mr. Salisbury said he would need a hearing prior to the September 25, 2015, motions hearing. The court said that would be a general motions date, "so if you wish to file more than one motion to be heard on that date, then you certainly can do so."
Motions rejected by the clerk's office
The record contains additional notices from the Kern County Superior Court clerk's office advising Mr. Salisbury, appellant's counsel, that certain motions had been rejected for filing.
On September 21 and 22, 2015, the clerk's office sent counsel notices that his papers were rejected and returned because they were not timely submitted, his motion required a 10-day notice, and the papers were not originals and copies were not accepted. These notices were apparently attached to a motion that appellant filed on or about September 21, 2015, for appellant to personally "participate in the defense of his case" pursuant to Faretta, and attend chambers and sidebar conferences with Mr. Salisbury.
On September 22, 2015, the clerk's office sent another notice to counsel that his "original motion was rejected." This notice was apparently attached to appellant's "sworn declaration" in support of the motion to compel discovery and motion to participate in his defense.
On September 23, 2015, a notice was sent to counsel that his papers were rejected/returned because they were not timely submitted, and the original motion was rejected. This notice was attached to appellant's sworn declaration "in explanation of separate statement of discovery requests."
On September 30, 2015, another notice was sent to counsel that papers were being rejected/returned because they did not show the date, time, and location of the next hearing. This notice was attached to preprinted form "Civ-110" entitled "Request for dismissal," filed by Mr. Salisbury on or about September 30, 2015, apparently requesting dismissal of the instant matter without prejudice but using a form for civil cases.
Appellant's motion to continue for further discovery
On September 30, 2015, appellant filed a motion to continue the scheduled evidentiary hearing of October 7, 2015, on the merits of his petition for writ of error of coram nobis.
The motion requested a continuance because the People had failed to comply with discovery, even though he had made "a comprehensive showing of materiality" in his motion to compel, and the prosecution had a duty to disclose material exculpatory evidence.
The motion was supported by Mr. Salisbury's declaration that appellant had discovered new evidence of a conspiracy between Officer Bill Rutledge, social worker Cori Taylor, Brooke H., and her mother, and that appellant sought documents to "uncover this conspiracy." Mr. Salisbury further declared that the People failed to produce any documents regarding certain investigative interviews that would have established his alibi, and that the People refused to comply with discovery because the requested information was exculpatory.
Motions rejected by the clerk's office
On October 1, 2015, the clerk's office sent another notice to counsel, that a motion had been rejected because it was not submitted timely, it required a 10-day notice, and was not on the right form (Civ-110). This notice was attached to another "Civ-110" form that appellant filed on or about September 29, 2015, to request dismissal of the instant matter without prejudice.
The district attorney's opposition to motion to continue
On October 2, 2015, the district attorney filed opposition to appellant's motion to continue the evidentiary hearing on the petition. The district attorney argued appellant failed to show good cause because it had been one year since he filed the petition, he could not shift his burden to the People to satisfy the requirements for relief under coram nobis, and appellant's motions confused civil and criminal discovery procedures.
SCHEDULED EVIDENTIARY HEARING ON THE MERITS
On October 7, 2015, Judge Lua convened the scheduled evidentiary hearing on the merits of appellant's petition.
The court stated there were two pending matters: appellant's motion to continue the evidentiary hearing, which was opposed by the People; and the evidentiary hearing on the merits of appellant's petition that was scheduled for that day.
The court denies appellant's motion to continue
The court stated it had read and considered appellant's motion to continue. Mr. Salisbury said he had a scheduling conflict with another case in Sacramento and asked to continue the evidentiary hearing. Mr. Salisbury said the People's main argument against the continuance was that the answer had been filed a long time ago.
"We kept expecting to be able to use this case to get discovery for the writ. It has become apparent that we are not able to do that.
"A lot of our motions have been sent back, rejected. We appeared in court on September 25 and were told that every motion we had on that day had been rejected.
"I did not receive the paperwork from the court until even a week after that. It's a miracle I even received any of it because it had my street address, my office in Santa Ana, and then had the city of Anaheim, which is my mailing address. How it ever ended up in my post office box, I don't know... So here I didn't get the copies of anything from the court until after the last court hearing.
"So the purpose for the motion to continue is to just now depend upon our own resources to do the discovery we need because it is quite obvious the Court is not going to order any discovery.
"We have other documents that we filed that were rejected because there's no date put on them, and yet there's no place for a date on the request for dismissal without prejudice that was rejected because there's no date on it. And there is no date on the request to dismissal. I've never heard of a date being put on one. So my client, on my behalf, put a date on it to refile it, and they said now it's not timely. So there's stuff that's been going on with all of these motions. We had a [Code of Civil Procedure section] 170.6, which has also been rejected. The same thing happened. It was rejected initially because there was no date on it, but I've never heard of a date being on a [section] 170.6.
"So essentially I think we need a continuance or a dismissal without prejudice so we can reevaluate this entire case and where it needs to go."
The district attorney argued the court had given appellant ample opportunity to refile the discovery motion but it was not done in a timely manner, and the clerk's office rejected it because it was not timely filed. The clerk's office separately rejected appellant's request for dismissal because "it is a civil form. It's not even on the right form. So he's intermingling civil procedure and civil forms and civil process with a criminal case. That's why it's being rejected. It has nothing to do with this Court doing anything. It's the clerk's office because things are not filed appropriately and they are not filed on the right documents."
The district attorney said it had been over one year since appellant filed the petition, and there was no point to further continue the matter because appellant "should have been ready to go with their own discovery. It's their burden on the motion."
Mr. Salisbury replied that they had filed "a Faretta-type motion," but it was also rejected by the clerk's office.
"I guess we can't say why these things were rejected because we were told one thing by the clerk, and the DA now is saying, well, it was rejected for a different reason. So for today, there is no way on earth anyone can show, prove why it was rejected, but they were rejected."
The court explained that it would not have received a motion that had been rejected by the clerk's office, and such a motion would not be properly before the court.
Mr. Salisbury stated that appellant filed a complaint against the court with the Judicial Council and tried to present a "courtesy copy" to the court. The court declined the documents and said it would be notified when appropriate.
Mr. Salisbury argued the People would not suffer any prejudice with another continuance, and complained he had been "squeezed" and "pushed" into having the hearing. "We been expected to be able to make the discovery we were not able to make. So we need to do it on our own."
The court denied appellant's motion to continue the evidentiary hearing on the merits.
The merits
The court next turned to the scheduled hearing on the merits of appellant's petition for writ of error coram nobis. The court was not sure "that a factual dispute exists" on the merits, and asked Mr. Salisbury if he had an offer of proof "as to any factual disputes that would be an issue and therefore would require live testimony...."
Mr. Salisbury replied:
"I don't have an offer of proof, a written offer of proof.... We do have witnesses that have been subpoenaed, a couple present today. Again, we are not really prepared ... to start the motion today. I am going to ask the Court to make a decision on our request that was rejected. So I make it orally now for a request to dismiss without prejudice." (Italics added.)
In making these statements, Mr. Salisbury did not ask the court to allow him to call any witnesses or state that appellant was prepared to testify at that time, to address whatever concerns the court had about the case or on the merits.
The court's findings
The court stated that appellant's petition for writ of error coram nobis sought relief "under a number of arguments, some of which came directly under a writ of error coram nobis, others which came directly under [section] 1192.5...."
"When considering what's been articulated in the moving papers, that being the petition the Court finds at this time that there is no legal basis that the Court can use to grant the writ of error coram nobis. There simply is none."
The court denied the petition. Mr. Salisbury asked the court to deny the petition "without prejudice." The court replied it was "just denied based on what the Court's received.
ISSUES ON APPEAL
In his opening brief, appellant asserts that he was forced to accept the plea offer in 1987 so he could be immediately released, avoid a possible sentencing exposure of 900 years on 118 counts, and obtain the dismissal of all charges against his wife, Cheryl, and his close friends, Brad and Mary Nokes; and he is seeking relief from a lifetime sex offender registration order.
Appellant argues his petition raised a prima facie case for relief based on newly discovered evidence consisting of the 2014 declarations from his children and other individuals alleged to have been victims; and he could not have discovered this new evidence sooner with due diligence.
Appellant asserts that on October 15, 2015, the day of the scheduled evidentiary hearing, he "was not given his day in Court, due process of law, or right to a fair trial" because Judge Lua summarily denied his petition without conducting a hearing or allowing him to call witnesses. Appellant asserts that "[m]any witnesses from 1984 appeared to testify on [his] behalf, but they were denied." Appellant further asserts the court abused its discretion when it denied his motion to compel discovery. As we will discuss in issue I, appellant also raises various unsupported assertions against the court and the purported reasons it denied his various motions.
Respondent contends appellant's appeal has failed to comply with the California Rules of Court by failing to support his assertions with references to the record.
Respondent argues the court did not abuse its discretion when it denied appellant's petition because his complaints about the alleged lack of a factual basis raised a legal issue; he failed to present proof of any newly discovered facts that are cognizable on coram nobis; he failed to show due diligence; the Attorney General's Final Report cannot be considered newly discovered evidence because it was issued in 1986, and he entered his plea in 1987; and the exhibits he filed in support of his petition constituted hearsay and were incomplete. Respondent further argues appellant did not present any evidence that Brooke H., the victim in the count to which appellant entered his plea, lied about the charges or subsequently recanted her accusations against him.
Respondent further argues that this court must dismiss and reject appellant's unsupported allegations of judicial misconduct. Respondent cites to the record and notes that appellant's motions were rejected by the clerk's office because his attorney failed to comply with the local rules, which are published and readily available online.
DISCUSSION
I. Procedural Allegations
In his opening brief, appellant makes several allegations about the purported reasons for the court's decisions to deny his various motions and his petition.
Appellant asserts the trial court's adverse rulings on October 15, 2015, occurred because his attorney advised Judge Lua that appellant had filed a complaint against him with the Judicial Council. Appellant further asserts that several of his motions were improperly rejected by the clerk's office, and the court should have given his attorney "time and leave to amend" for the motions to be refiled. Appellant argues, without citation to any part of the record, that the clerk allegedly told his attorney "that the Judge didn't want any motions filed in the case" and "there may have been some type of collusion" between the court and the clerk's office to prevent his motions from being filed.
"Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was 'act[ing] out of bias toward a party.' [Citation.]" (In re S.C. (2006) 138 Cal.App.4th 396, 422.) We have recited the entirety of the lengthy procedural history of appellant's petitions, and the numerous status hearings that were held, because they refute appellant's unsupported allegations. At all times, Judge Lua treated appellant and his attorney with appropriate courtesy. There is absolutely no evidence to support appellant's assertions that the court was biased against him. When the court declined to consider the discovery motion that appellant personally filed, it advised counsel to refile the motion in the form of appellant's own declaration; appellant and counsel failed to do so. When counsel complained about the rejection of his motions by the clerk's office, particularly appellant's Faretta request, the court advised counsel to refile the appropriate motion; counsel again failed to do so. In response to the court's review of his case, appellant ignored the court's repeated advisements to allow his retained counsel to speak on his behalf and repeatedly interrupted the court at two hearings. As we will discuss below, the court did not abuse its discretion when it summarily denied appellant's petition without conducting an evidentiary hearing, particularly given counsel's admission that he was not prepared to go forward.
The record also refutes appellant's assertions about the reason for the rejection of various motions by the clerk's office. The record indicates appellant's counsel repeatedly failed to comply with the local rules of the Kern County Superior Court. The United States Supreme Court has recognized that motions and applications are " 'properly filed' when [their] delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. [Citations.]" (Artuz v. Bennett (2000) 531 U.S. 4, 8-9, italics in original, fn. omitted.) As we have mentioned, the court advised appellant's counsel to refile the motions but counsel failed to do so.
In addition, appellant's motion to compel discovery repeatedly cited statutory procedures for civil discovery. When appellant demanded to act as "co-counsel," the court correctly advised appellant that he could not personally file pleadings since he was represented by counsel and he was not an attorney, but he could file a Faretta motion to represent himself. While one of his Faretta motions was rejected by the clerk's office, he failed to file another motion. Appellant's counsel also tried to file a motion to dismiss the petition without prejudice, used a form for civil litigation, and failed to correct the error.
As we have noted throughout this opinion, appellant's opening brief included statements and factual assertions that are not supported by the appellate record in this case. Statements of alleged facts in appellate briefs that are not contained in the record must be disregarded. (Knapp v. Newport Beach (1960) 186 Cal.App.2d 669, 679.)
Nevertheless, we will address the substantive claims raised in this case because of the important issues herein. II. The Petition for Writ of Error Coram Nobis
We turn to the question of whether the court abused its discretion when it summarily denied appellant's petition for writ of error coram nobis. In order to address this matter, we begin with the legal standards for the writ.
Defendant framed his lower court petition as seeking relief alternatively through coram nobis and a nonstatutory motion to withdraw his guilty plea. We consider the claims together because "a nonstatutory motion to vacate has long been held to be the legal equivalent of a petition for a writ of error coram nobis [citations] ...." (Kim, supra, 45 Cal.4th at p. 1096.)
"[A] petition for a writ of error coram nobis is regarded, in practical effect, as a motion to vacate a judgment [citation], and is neither a new adversary suit nor an independent action, but simply a part of the proceedings in the case to which it relates. [Citation.]" (People v. Sica (1953) 116 Cal.App.2d 59, 61-62.)
Relief through a writ of error coram nobis is extraordinary relief. (In re Reno (2012) 55 Cal.4th 428, 453.) However, the grounds on which a litigant may obtain relief through coram nobis "are narrower than on habeas corpus [citation]; the writ's purpose 'is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court' [citation]." (Kim, supra, 45 Cal.4th at p. 1091; People v. Mbaabu, supra, 213 Cal.App.4th at pp. 1146-1147.) The California Supreme Court has "emphasized the limited nature of this legal remedy." (Kim, supra, 45 Cal.4th at p. 1092.)
A. Requirements
"The seminal case setting forth the modern requirements for obtaining a writ of error coram nobis is People v. Shipman (1965) 62 Cal.2d 226 [Shipman] .... There we stated: '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...." ' [Citation.]" (Kim, supra, 45 Cal.4th at pp. 1092-1093.)
"These factors set forth in Shipman continue to outline the modern limits of the writ. [Citation.]" (Kim, supra, 45 Cal.4th at p. 1093.) All three requirements must be met for a writ of error coram nobis to issue. (People v. Mbaabu, supra, 213 Cal.App.4th at p. 1146.)
The writ "applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment"; as a result, the writ lies to correctly only errors of fact, and does not enable the court to correct errors of law or address constitutional claims such as ineffective assistance. (Kim, supra, 45 Cal.4th at pp. 1093, 1095-1096; People v. Ibanez, supra, 76 Cal.App.4th at p. 545; People v. Mbaabu, supra, 213 Cal.App.4th at p. 1147.)
In addition, the writ of error coram nobis "is unavailable when a litigant has some other remedy at law," such as by appeal or a motion for a new trial, "and failed to avail himself of such remedies. [Citations.]" (Kim, supra, 45 Cal.4th at pp. 1093-1094.)
B. Due Diligence
The moving party in coram nobis must satisfy "the requirement that he show due diligence when seeking such extraordinary relief. 'It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis' [citations], and the burden falls to defendant 'to explain and justify the delay' [citation]." (Kim, supra, 45 Cal.4th at p. 1096.) The defendant " '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....' [Citations.]" (Shipman, supra, 62 Cal.3d at p. 230.)
"This diligence requirement is analogous to that which we apply to petitions for writs of habeas corpus, where we require a petitioner to set forth with specificity when the 'petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim.' [Citation.] Indeed, we previously have recognized that petitions for writs of habeas corpus and error coram nobis are essentially identical in this regard. [Citations.]" (Kim, supra, 45 Cal.4th at p. 1097.)
C. Examples of Newly Discovered Facts
" 'The most comprehensive statement of the office and function of this writ which has come to our notice is the following ... : "The office of the writ of coram nobis is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian, or coverture, where the common-law disability still exists, or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake; these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned." ' [Citation.]" (Kim, supra, 45 Cal.4th at pp. 1091-1092, quoting People v. Reid (1924) 195 Cal. 249, 254-255, italics added; People v. Goodspeed (1963) 223 Cal.App.2d 146, 152.)
"[T]he allegedly new fact must have been unknown and must have been in existence at the time of the judgment. [Citation] [¶] For a newly discovered fact to qualify as the basis for the writ of error coram nobis, we look to the fact itself and not its legal effect. 'It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts.' [Citation.]" (Kim, supra, 45 Cal.4th at p. 1093.)
"A quick perusal of the types of situations in which the writ of error coram nobis has issued illustrates these limitations." (Kim, supra, 45 Cal.4th at p. 1094.)
"Thus, the writ has issued in these circumstances: 'Where the defendant was insane at the time of trial and this fact was unknown to court and counsel [citations]. Where defendant was an infant and appeared by attorney without the appointment of a guardian or guardian ad litem [citations]. Where the defendant was a feme covert and her husband was not joined [citation]. Where the defendant was a slave and was tried and sentenced as a free man [citation]. Where the defendant was dead at the time judgment was rendered [citations]. Where default was entered against a defendant who had not been served with summons and who had no notice of the proceeding [citations]. Where counsel inadvertently entered an unauthorized appearance in behalf of a defendant who had not been served with process [citation]. Where a plea of guilty was procured by extrinsic fraud [citation]. Where a plea of guilty was extorted through fear of mob violence [citations]. Where defendants and their counsel were induced by false representations to remain away from the trial under circumstances amounting to extrinsic fraud [citation]. Where by the failure of the clerk to properly file an answer the party was deprived of his defense [citation].' [Citation.] More recently, a lower federal court granted coram nobis relief where, many years after the fact, a Japanese-American plaintiff convicted of a misdemeanor for failing to report to a civilian control center in preparation for internment during World War II proved the federal government had intentionally suppressed favorable evidence showing the absence of any military necessity for removing those of Japanese ancestry from the West Coast. [Citation.]" (Id. at pp. 1094-1095, fn. omitted.)
"By contrast, the writ of error coram nobis was found unavailable in the following situations: where trial counsel 'improperly induced' the defendant to plead guilty to render him eligible for diversion and the trial court eventually denied diversion [citation]; where the defendant pleaded guilty to having a prior felony conviction when he was eligible to have the prior reduced to a misdemeanor [citation]; where the defendant discovered new facts that would have bolstered the defense already presented at trial [citation]; where the defendant mistakenly believed his plea to second degree murder meant he would serve no more than 15 years in prison [citation]; where the defendant claimed neither his attorney nor the court had advised him before he pleaded that his convictions would render him eligible for civil commitment under the Sexually Violent Predators Act (SVPA) [citation]; and where the defendant challenged 'the legality of his arrest, the identity of the informant, and the failure of the court to make findings on the prior convictions' [citation]." (Kim, supra, 45 Cal.4th at p. 1095.)
D. The Moving Party's Burden
A petition for coram nobis "is an attack upon a judgment which has become final and in favor of which there are strong presumptions of regularity ...." (People v. Adamson, supra, 34 Cal.2d at pp. 329-330.)
" 'A petition for writ of error coram nobis places 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. A mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of the specific facts relied upon and not merely state conclusions as to the nature and effect of such facts. [Citation.]' [Citations.]" (People v. Ibanez, supra, 76 Cal.App.4th at pp. 548-549.)
"The defendant has the burden of overcoming such presumption and establishing by a preponderance of the evidence 'that he was deprived of substantial legal rights by extrinsic causes.' [Citations.]" (People v. Goodspeed, supra, 223 Cal.App.2d at p. 152.)
E. Evidentiary Hearing
In view of the strict requirements for relief in the form of coram nobis, "it will often be readily apparent from the petition and the court's own records that a petition for coram nobis is without merit and should therefore be summarily denied." (People v. Vaughn (1966) 243 Cal.App.2d 730, 733.) Where the moving papers do not show newly discovered facts and conflict with the court records, or when there is no admissible evidence, the petition for coram nobis may be summarily denied without an evidentiary hearing. (Shipman, supra, 62 Cal.2d at p. 230; People v. Williams (1965) 238 Cal.App.2d 585, 598.)
It is only when "facts have been alleged with sufficient particularity [citation] to show that there are substantial legal or factual issues on which availability of the writ turns, [that] the court must set the matter for hearing." (People v. Vaughn, supra, 243 Cal.App.2d at p. 733.)
F. Review
We review the superior court's ruling on the petition for the writ of error coram nobis under the deferential abuse of discretion standard. (Kim supra, 45 Cal.4th at pp. 1095-1096; People v. Ibanez, supra, 76 Cal.App.4th at p. 544.)
With these standards in mind, we turn to the allegations raised in appellant's petition.
III. The Factual Basis for Appellant's Plea
Appellant's petition asserted that he was entitled to relief under coram nobis because the court failed to properly find a factual basis for his no contest plea at the hearing on January 22, 1987. Appellant's argument is meritless for several reasons.
A. Procedural Bars
As explained above, a petition for writ of error coram nobis does not enable the court to correct errors of law or address constitutional claims. (Kim, supra, 45 Cal.4th at pp. 1093, 1095-1096.) The writ is unavailable when there is a remedy by appeal. (Id. at p. 1093.) In addition, the moving party must show due diligence, and explain and justify any delay in seeking such extraordinary relief. (Id. at p. 1096.)
A challenge to the adequacy of a trial court's finding of a factual basis for a plea raises an error of law that is cognizable on appeal. (People v. Palmer (2013) 58 Cal.4th 110, 114 (Palmer); People v. Holmes (2004) 32 Cal.4th 432, 440 (Holmes).) Appellant was present at the plea hearing and well-aware that he and his attorney refused to stipulate to a factual basis. Immediately after that hearing in 1987, appellant could have requested a certificate of probable cause, filed an appeal from his plea, and raised the claim that the court failed to properly find a factual basis for his plea. (See, e.g., Holmes, supra, 32 Cal.4th at p. 438; People v. Zuniga (2014) 225 Cal.App.4th 1178, 1187.) He failed to use due diligence to pursue an available remedy, and his claim raises an alleged legal error that cannot be address on coram nobis.
B. Merits
Even if we were able to reach the merits of appellant's claim, he would not be entitled to relief under coram nobis.
A plea under People v. West (1970) 3 Cal.3d 595 (West) "allows a defendant to plead guilty to a charge without admitting that he or she committed the crime alleged. [Citation.]" (People v. Riddles (2017) 9 Cal.App.5th 1248, 1250, fn. 1.) "In In re Alvernaz (1992) 2 Cal.4th 924, 932 ..., the court characterized a West plea as 'a plea of nolo contendere, not admitting a factual basis for the plea.' Such a plea, also referred to as an Alford plea, based on North Carolina v. Alford (1970) 400 U.S. 25, 37-38 ..., allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence." (People v. Rauen (2011) 201 Cal.App.4th 421, 424, fn. omitted.)
However, even a plea under West must comply with the statutory requirement for a factual basis. "There are two types of guilty or no contest pleas in California: (1) a conditional plea, where the plea is conditioned upon receipt of a particular disposition; and (2) an unconditional or open plea. [Citation.] When taking a conditional plea of guilty or nolo contendere (hereafter no contest) to an accusatory pleading charging a felony, a trial court is required by ... section 1192.5 to 'cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.' " (Holmes, supra, 32 Cal.4th at p. 435, fn. omitted.)
"The factual basis required by section 1192.5 does not require more than establishing of a prima facie factual basis for the charges. [Citation.] It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant's guilt. [Citations.]" (Holmes, supra, 32 Cal.4th at p. 441.) The court is afforded flexibility in establishing a factual basis for the plea since the primary goal of section 1192.5 is to "assur[e] that the defendant entered the plea voluntarily and intelligently." (Palmer, supra, 58 Cal.4th at p. 119.)
"[T]he trial court must garner information regarding the factual basis either from the defendant or defense counsel. If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge [citation], or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. [Citation.] If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.]" (Holmes, supra, 32 Cal.4th at p. 442.)
The defendant may enter a guilty plea even though he protests his innocence under West. (People v. Calderon (1991) 232 Cal.App.3d 930, 935.) "[A]n accused's claim of innocence does not preclude entry of a guilty or nolo contendre plea where the court taking the plea ascertains a 'factual basis' therefor. [Citations.]" (In re Alvernaz, supra, 2 Cal.4th at p. 940, fn. 9.)
"[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court's acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citations.]" (Holmes, supra, 32 Cal.4th at p. 443.)
At the 1987 plea hearing in this case, the court accepted no contest pleas from both appellant and his codefendant, Mr. Thomas. The court began with Mr. Thomas's case, where his attorney stated that he would not stipulate to a factual basis and that he was only entering the plea because it was in his best interest. The court advised Mr. Thomas and his attorney: "I have read all the transcripts, I read everything that's been - under prior testimony, I certainly do find there's a factual basis for the plea, based on all the matters I've read in the preliminary hearings." After Mr. Thomas entered his plea, the court again stated that "based upon everything I did read, I did find a factual basis for the plea. I read all the transcripts of all the other hearings, including the juvenile court hearings, and the Court does make a factual finding for the plea, and I take it as a guilty plea."
When the court turned to appellant's case, his attorney similarly advised the court appellant would not stipulate to a factual basis for the plea, but appellant would "allow the Court to do what it will with respect to whether it will make a factual basis." The court replied: "Remember, I spent December reading everything. I feel, on reading all the prior testimony, under oath, there's a factual basis for the plea." As the hearing continued, the court again stated that it found a factual basis for the plea "based on everything it has read."
While defense counsel refused to stipulate to a factual basis, counsel did not dispute the existence of the transcripts referred to by the court. The court's statements at the plea hearing, and its reliance upon sworn testimony previously given in the case, were sufficient under section 1192.5, and if the merits of this question could be addressed on coram nobis, any such error would be harmless. (Holmes, supra, 32 Cal.4th at p. 443.)
IV. The Attorney General's Final Report
As explained above, appellant's second argument in support of his writ of error coram nobis is based on the Attorney General's Final Report. Appellant submitted the 79-page report, dated September 1986, as an exhibit to his petition, in support of his argument that the law enforcement personnel who investigated the child molestation cases used improper interview techniques.
According to the Final Report, the Grand Jury of Kern County asked the Attorney General's office in August 1985 to investigate "serious questions" about how local agencies handled a series of separate child sexual molestation cases that culminated in the children's allegations of "satanic activities," "animal sacrifices and the ritual murder of 12 or more children." The Attorney General's office accepted the Grand Jury's request and conducted an investigation about how the child molestation cases were handled by the sheriff's department, the district attorney's office, and child protective services.
Since the report was included as an exhibit to appellant's petition, we will review various findings about the interview techniques used in child molestation cases that were investigated at that time. However, we will find that appellant failed to demonstrate in his petition that he used due diligence to raise issues based upon the Attorney General's Final Report.
A. The Attorney General's Findings
The Attorney General's Final Report explained that it reviewed how law enforcement agencies "handled their roles in a widely publicized series of child molestation cases in 1984 and 1985." The Final Report was released to the public, but omitted the names of the law enforcement and prosecutorial officials who conducted the child molestation investigations, and the names of suspects and victims involved in those cases. None of the victims were interviewed, and the report did not address specific criminal charges or evaluate the guilt or innocence of the suspects. The following is a summary of some observations made in the final report.
The report found that deputies and social workers had little to no specialized training on how to conduct interviews with children about sexual molestation accusations. "Deputies interviewed or contacted the 19 victims 134 times. One child was interviewed 24 times by the Sheriff's Department alone, 35 times in all. Many interviews were conducted jointly with a Child Protective Services social worker who determined their format, content and style." Deputies deferred to and relied upon social workers to conduct many of the interviews.
The prevailing attitude among the interviewers "was that 'children do not lie,' " which led to interviewers taking children's statements "at face value and failing to do necessary corroborative interview process...." "Deputies generally did not question the children's statements, and they responded positively to the victims' statements only when the children revealed new allegations or said something to reinforce their previous allegations. They applied pressure on the children to name additional suspects and victims, and questioned them with inappropriate suggestions that produced the answers they were looking for." "Deputies allowed overly leading questions, gave the child inappropriate positive reinforcement for many of their statements, and did not question those statements." "[T]he improper interview techniques seriously damaged the investigation" in a case where the children's statements "constituted almost all of the evidence."
"While only 28 of the 134 victim interviews were taped, there is no compelling reason to suggest that those not taped were conducted any differently." The tapes and reports that did exist showed "that deputies and others told the children what other victims had said." "[A]ccording to the tapes of those interviews that were recorded, many of the questions were overly leading and direct. This type of inappropriate questioning seeks to elicit specific response or provides the child with information the child would not otherwise have, rather than to encourage the child to describe events in her/her own words." "Some deputies gave positive reinforcement, such as 'good girl,' to the children's responses, instead of a neutral response such as 'okay.' " Most deputies "did not question the children's statements."
The sheriff's department "neglected to ask the Jameson Center to segregate the victims housed there or to keep them from discussing the case." Children who were alleged to be victims of different suspects in different cases participated in group therapy sessions together, and "records show[ed] they were allowed to name the persons who molested them. That may have led to 'cross-germination' - or children expanding their own statements to claim that events reported by other children also happened to them...."
In March 1985, one child told a deputy that "she had seen animals sacrificed, been forced to drink their blood, and been subjected to other 'bad things' in a 'bad' church." A few days later, another child told the same deputy that parents took children to a church where "they chanted, killed animals, made children drink blood, and sexually molested the children." "Within weeks, several more children reported similar stories." The first child who described the satanic cult allegations later described a litany of gory torture, including crucifixions, stabbings, and molestation. The child named 26 victims, 33 suspects, and 12 murdered babies.
The satanic cult and homicide allegations did not emerge "until almost nine months after the case first came to light.... By July 1985, most of the 19 victims included in this investigation claimed to have seen and participated in satanic rituals."
"[T]he Sheriff's Department uncovered no physical evidence to corroborate the children's stories, and found much to disprove some of their statements. Several alleged victims were found alive, and no reports of missing babies or lost children corresponded with the victims named. No bodies were found in the grave sites described...."
The satanic allegations "seriously eroded the children's credibility and their ability to testify in court about the molestations." "Initially the Sheriff's Department created a separate file for victim interview reports mentioning homicides. This was to keep defense attorneys from obtaining the files through discovery motions. Eventually, however, the District Attorney's office decided to release to defense attorneys all reports pertaining to satanic ritual homicides."
As the investigations continued, children accused a social worker who had interviewed them, along with a deputy district attorney and a sheriff's deputy, as being part of the molestation and satanic ring. In contrast to other suspects, these three officials were not immediately arrested and charged with crimes, "presumably" because the children's credibility had been damaged by exaggerated claims.
The Attorney General's Final Report concluded that the investigation of the child molestation cases "floundered in a sea of unproven allegations, insufficient corroborative evidence, and bizarre allegations that in some instances were proven to be false and raised serious questions about the victims' credibility."
B. Due Diligence
A petition for writ of error coram nobis seeks relief " 'from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court' [citation]." (Kim, supra, 45 Cal.4th at p. 1091.)
The petitioner has the burden to overcome " 'the strong presumption in favor of the validity of the judgment,' " and requires the production " 'of strong and convincing evidence.' " (People v. Ibanez, supra, 76 Cal.App.4th at pp. 548-549.) The moving party " ' "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...." ' [Citation.]" (Kim, supra, 45 Cal.4th at pp. 1092-1093.) "[T]he burden falls to defendant 'to explain and justify the delay' [citation]." (Id. at p. 1096.)
Based on the record before this court, the Attorney General's Final Report was issued to the public in September 1986. Appellant was in custody, represented by counsel, and apparently waiting for his trial when the report was issued. On January 22, 1987, appellant entered his no contest plea to the single count based on Brooke H. Appellant thus entered his plea several months after the Attorney General's Final Report was issued to the public.
In his petition for writ of error coram nobis, appellant has not submitted a declaration, based on his own personal knowledge, to explain when he learned about the Attorney General's Final Report; whether he knew about the report's findings when he entered his plea; why he entered his plea if he already knew about the report's findings; and why he did not previously file the appropriate motion or petition to withdraw his plea based on the report's findings.
It is entirely possible that appellant was unaware of the contents of the report when he entered his plea in 1987. It is also possible that appellant knew about the report, but did not believe he could rely on it to seek relief from his plea since the report omitted the names of the suspects and victims; or that he waited to file a petition for relief until he obtained the declarations from his children where they recanted the allegations against him.
Appellant has the burden of proof in a petition for writ of error coram nobis, and he failed to meet that burden to show the contents of the report constituted newly discovered facts and that he used due diligence to seek a remedy based on that report.
In reaching this conclusion, we do not address any potential hearsay questions about whether the contents of the report would be admissible at a judicial hearing.
V. Newly Discovered Evidence
Appellant's third ground for relief in his petition was based on the declarations submitted as supporting exhibits, where his own two children and two other children alleged to have been victims in the case recanted their allegations against him; along with various transcripts attached as exhibits from the testimony of other children in other cases.
Appellant's petition asserted that these declarations, together with the findings from the Attorney General's Final Report, showed his no contest plea was not the product of free and clear judgment because it was given "in ignorance of the true state of the circumstances of the allegations made by the alleged victim."
We have already addressed the due diligence problems with appellant's reliance on the Attorney General's Final Report. We now turn to whether these recantations would support relief under coram nobis.
A. Suggestive Interview Techniques
In support of his petition, appellant filed declarations from appellant's children, and two other children, recanting their allegations against him, and discussing how they were interviewed by law enforcement authorities. Appellant did not submit any evidence that Brooke H. recanted the allegations against him, or how she was interviewed during the investigation into the charges against him.
Nevertheless, these declarations raise serious concerns about whether some of the charges against appellant resulted from improper suggestive interview techniques, similar to those criticized in the Attorney General's Final Report.
The seminal case addressing the impact of suggestive interview techniques on children is State v. Michaels (1994) 136 N.J. 299 (Michaels). In that case, a female nursery school teacher "was convicted of bizarre acts of sexual abuse against many of the children who had been entrusted to her care." (Id. at p. 303.) Michaels considered whether the state used improper techniques in interviewing child witnesses.
"The focus of this case is on the manner in which the State conducted its investigatory interviews of the children. In particular, the Court is asked to consider whether the interview techniques employed by the state could have undermined the reliability of the children's statements and subsequent testimony, to the point that a hearing should be held to determine whether either form of evidence should be admitted at re-trial." (Michaels, supra, 136 N.J. at p. 306.)
Michaels held that an investigative interview was "a crucial, perhaps determinative, moment in a child-sex-abuse case," and summarized relevant studies about the topic. (Michaels, supra, 136 N.J. at p. 309.)
"That an investigatory interview of a young child can be coercive or suggestive and thus shape the child's responses is generally accepted. If a child's recollection of events has been molded by an interrogation, that influence undermines the reliability of the child's responses as an accurate recollection of actual events.
"A variety of factors bear on the kinds of interrogation that can affect the reliability of a child's statements concerning sexual abuse. We note that a fairly wide consensus exists among experts, scholars, and practitioners concerning improper interrogation techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements, such as previous conversations with parents or peers. [Citations.]
"The use of incessantly repeated questions also adds a manipulative element to an interview. When a child is asked a question and gives an answer, and the question is immediately asked again, the child's normal reaction is to assume that the first answer was wrong or displeasing to the adult questioner. [Citation.] The insidious effects of repeated questioning are even more pronounced when the questions themselves over time suggest information to the children. [Citation.]
"The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred. [Citation.] Similarly, an interviewer's bias with respect to a suspected person's guilt or innocence can have a marked effect on the accuracy of a child's statements. [Citation.] The transmission of suggestion can also be subtly communicated to children through more obvious factors such as the interviewer's tone of voice, mild threats, praise, cajoling, bribes and rewards, as well as resort to peer pressure." (Id. at pp. 309-310.)
Michaels also noted that "[t]he conclusion that improper interrogations generate a significant risk of corrupting the memories of young children is confirmed by government and law enforcement agencies, which have adopted standards for conducting interviews designed to overcome the dangers stemming from the improper interrogation of young children," including that the interviewer should avoid asking leading questions, "never threaten a child or try to force a reluctant child to talk," and "refrain from telling a child what others, especially other children, have reported. [Citation.]" (Michaels, supra, 136 N.J. at p. 311.)
Michaels further found there was "judicial recognition of the very same concerns expressed in the academic literature and addressed by the guidelines established by governmental authorities with respect to the improper interrogation of alleged child sex abuse victims. The United States Supreme Court in Idaho v. Wright [(1990)] 497 U.S. 805 ... [(Wright)], noted with approval the conclusion of the Idaho Supreme Court that the failure to video tape interviews with alleged child victims, the use of blatantly leading questions, and the presence of an interviewer with a preconceived idea of what the child should be disclosing, in addition to children's susceptibility to suggestive questioning, all indicate the potential for the elicitation of unreliable information. [Citations.]" (Michaels, supra, 136 N.J. at p. 312, citing Wright, supra, 497 U.S. at pp. 812-813.)
Wright addressed whether a child's hearsay statements elicited by suggestive questioning had "particularized guarantees of trustworthiness" under Ohio v. Roberts (1980) 448 U.S. 56, sufficient to justify their admission over a confrontation clause objection, when the child was found incompetent to testify; Wright held the child's statements were not per se or presumptively unreliable. (Wright, supra, 497 U.S. at pp. 819-822.) Roberts's hearsay analysis was overruled by Crawford v. Washington (2004) 541 U.S. 36. None of these cases addressed Wright's concerns about the impact of suggestive interview techniques on a child.
Michaels concluded the use of "highly suggestive interrogation techniques" can create a "significant risk" that the interrogation itself will distort the child witness's recollection of events, "thereby undermining the reliability of the statements and subsequent testimony concerning such events." (Michaels, supra, 136 N.J. at p. 312.)
Based on this conclusion, Michaels held that if a defendant can produce "some evidence" that the state employed coercive an unduly suggestive methods of questioning, the court must hold a pretrial hearing to determine "whether those clearly improper interrogations so infected the ability of the children to recall the alleged abusive events that their pretrial statements and in-court testimony based on that recollection are unreliable and should not be admitted into evidence." (Michaels, supra, at pp. 315-316.)
In People v. Montoya (2007) 149 Cal.App.4th 1139, the court rejected a Michaels-type pretrial "taint" hearing "in favor of our well-established competency jurisprudence" to determine if a child was competent to testify. (Montoya, supra, at p. 1149.) In doing so, Montoya did not reject Michaels's discussion about the potential impact of suggestive interview techniques.
B. The Children's Declarations
In this case, the declarations, signed by appellant's children and two other children in 2014, raise the reasonable likelihood that they were subject to suggestive interview techniques. Melissa, appellant's daughter, declared that "[t]he police, and social services workers, coerced me into making certain statements. They coerced me into saying that there were sexual relations between my father, other adults, and me. The Police and Social Workers coerced me into saying that they were dealing in satanic cult issues. Everything I stated for the record was fed to me by the police investigators and Social Services workers, which I repeated back on record. [¶] None of the statements I made regarding sexual or satanic allegations were true. As a child I was forced to make those statements, so I did."
As explained above, Melissa, Tyson, Joseph and Donnie declared that they made false allegations against appellant. In his petition, appellant claimed the charges against him were based on the allegations from these children, but failed to support this assertion with any admissible evidence, such as the complaint, information, or his own declaration, based on his personal knowledge as the defendant in the case and the petition in this matter, about the charges that were filed against him.
Melissa declared that she spoke to detectives and a social worker, and "I was systematically prepped for each and every testimony I gave. They would spend countless hours working on statements regarding activities they wanted me to testify about. All of those statements were made up by the police officers and Social Services Workers. None of the statements were true. Since I was only six (6) years old, they would not listen to me."
Melissa declared:
"I do recall making statements that [appellant] molested me. Those statements are NOT true. I was coerced into making those statements by being relentlessly prepped and prepped until I gave the police officers,
social workers and district attorneys the answers I thought they wanted to hear. It was the only way to make the questioning stop." (Italics added.)
Melissa declared that "overzealous detectives and social workers" made up stories and told her to say "that children had died and that I had brothers and sisters that had died due to satanic rituals. I was made to state that my parents had children just so they could sacrifice them later."
Melissa declared that she did not know if Brooke H. was "forced to lie about the facts as I was, but I know that since I was forced to lie, Tyson was forced to lie, the Cummings' were forced to lie, it is reasonable to believe that all of the children were forced to lie."
Tyson, appellant's son, declared that the police told him that he had to play with dolls and " 'tell us where the adults were touching you.' " Tyson refused to play with the dolls because he wanted to play with "boy's toys," but he was told that he could not "go outside until I finished with what they wanted me to do. I had to pretend that people touched me in places that no one had ever touched me if I wanted to play with boy's toys." Tyson further declared:
"The police and social services workers tried to make me tell them things that never happened. Eventually, I broke down and told them the lies they wanted to hear so they would leave me alone. I hoped that if I told them what they wanted to hear, that I could go back home. That was just another lie that they told me." (Italics added.)
The declarations of appellant's children raise the specter that improper and suggestive interview techniques were used to develop the case against appellant, but his petition would have been aided by a declaration from an expert about the impact of these techniques on the reliability of the children's allegations.
For example, Michaels reviewed several psychological studies about the impact of suggestive interview techniques. (Michaels, supra, 136 N.J. at pp. 307-309.)
C. Coram Nobis , Witness Credibility , and Declarations of Innocence
While appellant's children have recanted the allegations against him, appellant did not introduce any evidence that Brooke H. recanted her accusations or that she was subject to suggestive interview techniques. Even if these evidentiary problems were resolved, appellant is subject to the limitations of relief provided by coram nobis.
" 'A defendant's plea of guilty "is an admission of every element of the offense charged, and constitutes a conclusive admission of defendant's guilt." [Citation.]' " (People v. Grgurevich (1957) 153 Cal.App.2d 806, 811.) " ' "The defendant then, if he would set aside such judgment, must proceed as one who is at least prima facie guilty; he, now, is the attacker and has the burden of producing convincing proof of a fact which constitutes a legal ground for setting aside the judgment. The presumption that the judgment is valid in all respects is strong ...." [Citation.]' " (Id. at pp. 810-811.)
In connection with a guilty plea, "coram nobis lies when a defendant has been fraudulently coerced or persuaded to plead guilty, or is deprived of the right of trial by extrinsic fraud, deceit, duress, persuasion or misrepresentation, when no statutory remedy for the wrong exists, or when the statutory remedy is inadequate." (In re Dorsey (1947) 81 Cal.App.2d 584, 586, italics added.) Coram nobis does not lie where the defendant relies on a representation or promise by defense counsel relating to the consequences of a change of plea, unless the prosecution or the court was a party to the representation or promise. (People v. Grgurevich, supra, 153 Cal.App.2d at p. 811; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.)
As a general rule, coram nobis does not lie to attack the use of perjured testimony, even the knowing use of perjured testimony by the prosecution. (People v. Adamson (1949) 34 Cal.2d 320, 327.) It may not be used to present new evidence impeaching a witness's credibility. (People v. Mooney (1918) 178 Cal. 525, 529-530.) It may also not be used where material evidence has been concealed or suppressed, or evidence of perjury, impeachment and concealment. (Ibid.; Shipman, supra, 62 Cal.2d at p. 230; cf. People v. Tate (1955) 136 Cal.App.2d 31, 33.)
In Mendez v. Superior Court (2001) 87 Cal.App.4th 791 (Mendez), the court addressed the limitations of coram nobis where a defendant later claimed his innocence in spite of a guilty plea. In that case, the defendant admitted a probation violation and pleaded guilty to a drug offense in 1993, after the arresting officer testified at the preliminary hearing about observing the defendant in a drug transaction. In 1999, that same officer was convicted of federal offenses, apparently related to the "Rampart" scandal. In 2000, the defendant filed a motion to vacate the judgment that was treated as a petition for writ of error coram nobis, since he was no longer in custody and a habeas petition was not an appropriate remedy. The defendant asserted that he was innocent, and only pleaded guilty because the court had believed the officer's perjured testimony at the preliminary hearing. The superior court denied the defendant's petition for relief. (Id. at p. 794-795.)
Mendez held defendant was not entitled to a remedy under the circumstances of coram nobis.
"[H]e has no remedy because he has not presented evidence sufficient to show that his guilty plea was the result of 'governmental misconduct.' [Defendant] has not shown (other than by his own denials) that Officer Mack in fact lied about [defendant's] involvement in a drug deal. He has not shown (or even alleged) that the prosecuting authorities or the court knew or had reason to know in 1993 that Officer Mack's credibility was suspect. On the record presented, Mendez is indeed without a remedy. [Citations.]" (Mendez, supra, 87 Cal.App.4th at pp. 801-802.)
Mendez further rejected defendant's claim of innocence as a basis for coram nobis relief from his guilty plea.
"Implicit in [the defendant's] petition is a request to us to presume he pled guilty because he knew a jury would accept Officer Mack's allegedly perjured testimony and reject the testimony of a defendant who had twice before been convicted of drug charges. From [defendant's] perspective, we would then presume that, had he known the truth about Officer Mack, he would not have pled guilty but would instead have gone to trial - where he would have been acquitted because he would have impeached Officer Mack with evidence of the Rampart scandal. That's not
the way it works. Because [the defendant's] guilty plea was an admission of every element of the charged offense, he is at least prima facie guilty. As a result, the presumption is that the judgment is correct, not the other way around, and it is [the defendant's] burden to present convincing proof of some fact that would establish a legal ground for setting aside the judgment. [Citations.] He has not done that.
"It is settled in California that, absent extrinsic fraud or duress, a judgment predicated on perjured testimony or entered because evidence was concealed or suppressed cannot be attacked by a petition for a writ of coram nobis. [Citations.] In the eyes of the law, [the defendant's] rights were adequately protected - by his right to proceed to trial, where he could have attacked Officer Mack's credibility to the extent he could, by his right to move for a new trial, and by his right to appeal. [Citation.] That the time within which he could have availed himself of those remedies has come and gone is legally immaterial. [Citations.]
"It is at the time of trial that a party 'must be prepared to meet and expose perjury then and there.... The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise [forgoes or is unable to challenge the outcome or] show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. The wrong, in such case, is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, [could] be worse than occasional miscarriages of justice.' [Citation.] For those who remain in custody, habeas is available. For those who are free, coram nobis is not the answer." (Mendez, supra, 87 Cal.App.4th at pp. 802-803, italics added.)
Mendez concluded that while the court could not "create an abstract 'equitable remedy' " to avoid the limitations of coram nobis, defendant could "apply to the Governor for a pardon" if "the degree of wrong done to [him] is worse than appears on the record presented." (Mendez, supra, 87 Cal.App.4th at p. 803.)
D. The superior court's denial of appellant's petition
On appeal, appellant complains that the court improperly denied his petition, and should have granted his various discovery and continuance motions for an evidentiary hearing based on the declarations that showed his innocence. During the pendency of his case in superior court, appellant's counsel repeatedly complained that the district attorney failed to comply with his discovery demands, and sought to continue the scheduled evidentiary hearing because counsel said he was still trying to obtain various records. Indeed, counsel apparently tried to file a motion to dismiss the petition without prejudice that was rejected by the clerk's office for failure to comply with local rules.
Appellant's discovery complaints are also meritless because of the evidentiary deficiencies in his petition and his failure to acknowledge that he had the burden " '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. A mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of the specific facts relied upon and not merely state conclusions as to the nature and effect of such facts. [Citation.]' [Citations.]" (People v. Ibanez, supra, 76 Cal.App.4th at pp. 548-549.)
In cases in which "the sentence imposed is less than death or life in prison without the possibility of parole, we are guided by the decisions of the California Supreme Court. The general rule is that discovery is available in a habeas corpus proceeding once an order to show cause has issued. (In re Scott (2003) 29 Cal.4th 783, 814 ... ; In re Avena (1996) 12 Cal.4th 694, 730 ....) Thus, no discovery is permitted prior to the issuance of the order to show cause, because a habeas corpus petition that does not state a prima facie claim for relief 'creates no cause or proceeding which would confer discovery jurisdiction.' (People v. Gonzalez (1990) 51 Cal.3d 1179, 1258 ...; see In re Steele [(2004)] 32 Cal.4th [182,] 690 ....)" (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1241-1242.)
Appellant's counsel apparently believed that once he filed the petition for writ of error coram nobis, he shifted the burden to the district attorney to provide sufficient discovery to support his case. During the various discovery hearings, however, appellant never explained what efforts he had taken to meet his burden, including whether he attempted to obtain records and transcripts from the juvenile, superior, or appellate courts; the Attorney General's office; and/or the attorneys who represented appellant, his codefendants, and other suspects during their trials, appeals, or postappeal petitions.
In any event, based on appellant's reliance on the Attorney General's Final Report and the declarations submitted by his children and the other two alleged victims, appellant's petition raises the same argument that was addressed in Mendez - that he would not have pleaded no contest if he had known the credibility of the children that he was alleged to have sexually molested would have been subject to impeachment because of the manner in which they were interviewed, their assertions about satanic cults and homicides, and that they were purportedly coerced to make accusations against him.
While appellant's petition failed to explain the lack of due diligence regarding the Attorney General's Final Report, he filed his petition for writ of error coram nobis in 2014, the same year that his children signed the declarations where they recanted their previously allegations against him.
As we have explained, the superior court summarily denied appellant's petition without conducting an evidentiary hearing. It is settled that " ' "a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 976.) We have also explained that a petition for writ of error coram nobis is a limited remedy, and the moving party bears a heavy burden to show that he should obtain relief. (Kim, supra, 45 Cal.4th at p. 1091.)
We are compelled by the holding in Mendez to conclude that, based on the assertions in his petition and his protests at the plea hearing, the court did not abuse its discretion when it summarily denied appellant's petition. As in Mendez, appellant knew he did not sexually molest any children, and he could have challenged the alleged false testimony of the children by exercising his right to a jury trial or a hearing pursuant to Evidence Code section 402 on the admissibility of the children's testimony, but instead pleaded no contest to the charge based on Brooke H.
The newly discovered evidence in appellant's petition was that some of the children had recanted the allegations against him. As in Mendez, the declarations would have been impeaching evidence going to the merits of the case against him, but do not constitute newly discovered evidence for the limited purpose of coram nobis relief.
VI.Coram Nobis and Duress
We have found the superior court did not abuse its discretion when it denied appellant's petition for writ of error coram nobis because of the evidentiary deficiencies and Mendez's holding that forecloses relief based on appellant's personal claim of innocence.
However, appellant may still have a claim for relief under coram nobis based on other allegations in his petition. The California Supreme Court has explained that relief pursuant to coram nobis may be available where " ' "a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress or fraud or excusable mistake; these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned." ' [Citation.]" (Kim, supra, 45 Cal.4th at pp. 1091-1092, quoting People v. Reid, supra, 195 Cal. at p. 254-255, italics added; People v. Goodspeed, supra, 223 Cal.App.2d at p. 152.) Mendez similarly held that "a judgment predicated on perjured testimony or entered because evidence was concealed or suppressed" cannot be attacked by a petition for writ of error coram nobis "absent extrinsic fraud or duress." (Mendez, supra, 87 Cal.App.4th at p. 802, italics added.)
Despite the existing evidentiary deficiencies, appellant's petition raises serious concerns, bolstered by the declarations from his own children and two other children, that the sexual molestation charges against appellant, his wife, and any codefendants may have been the result of improper interview techniques. Appellant's petition declares:
"Although [appellant] denied having committed any of these charges, his court appointed attorney convinced him that the risk of being found guilty of more than 118 serious sex offense charges, and his exposure to a sentence in excess of 900 years, was not worth the risk when he could plead guilty to 1 count of a violation of P.C. 288(a), and thus have the other 117 counts dismissed, and to have all the charges against his wife Cheryl
Gonzales, and Brad & Mary Nokes dismissed as well. Furthermore, Mr. Gonzales had been in custody for 1326 days. By accepting the offer, he would be immediately released. Mr. Gonzales was all but forced to accept the plea deal, so that his wife and friends Brad & Mary Nokes cases would be dismissed....
"Therefore, he was advised to plead guilty to a crime which he never committed.... [Appellant] has been [subject to] lifetime sex offender registration for the last 30 years for a crime that never occurred. Accordingly, [appellant] brings this motion to withdraw his plea on the grounds that had he or his attorney known about the coercion, and been able to prove the lies of the alleged victim he would not have pled to the offense, and would have taken the matter to trial...."
As we have already explained, appellant's petition lacked evidentiary support for these assertions, such as the charging documents that alleged hundreds of counts against appellant, his wife, and Brad and Mary Nokes. If appellant was unable to obtain the charging documents, he could have met his burden through a declaration from his wife, based on her personal knowledge, explaining the nature and number of charges against her at the time of appellant's plea, and the named victims of those charges; and/or a declaration from Brad and/or Mary Nokes, based on their own personal knowledge, regarding the same circumstances.
Appellant submitted a 2014 declaration from his former wife, Cheryl G., in support of his petition. Cheryl G. only addressed the circumstances surrounding appellant's arrest and the removal of their children, and did not specify the charges pending against her at the time of appellant's plea.
More importantly, appellant could have filed a declaration, based on his own personal knowledge as the charged defendant in the criminal action and the petitioner in this case, to fill the evidentiary deficiencies in his petition, and state the charges that were pending against him at the time of the plea offer; the named victims of those charges; the named codefendants; explain his relationship, if any, with the Nokeses; explain whether he was charged with molesting his children and Joseph and Donnie Cummings, to place their declarations into context; what appellant personally knew about the plea offer before he accepted it; appellant's reasons for accepting the plea offer even though he knew he was innocent of the charges against him; if appellant was aware of the findings in the Attorney General's Final Report when he entered his plea; if appellant was aware that other defendants in other child molestation cases had suffered convictions and lengthy sentences after their jury trials; whether he accepted the plea offer to prevent his wife and codefendants from facing similar lengthy prison sentences; whether he would have refused the plea offer if he had been aware at that time of the alleged improper interview techniques used to investigate the charges against him, his wife, and the Nokeses; and whether he entered his plea under duress to avoid the risk that his wife and codefendants could face long prison terms.
Appellant submitted a 2014 declaration from Roy Nokes in support of his petition. Mr. Nokes's declaration is a bit disjointed, but he apparently claimed personal knowledge about the terms of the plea offer - that the district attorney would drop all charges against Brad and Mary Nokes if appellant and Will Thomas entered pleas. However, appellant did not submit his own declaration, as the named defendant in the criminal charges and the petitioner in this case, to show whether he had personal knowledge of these same terms at the time he entered his plea, whether the terms included dismissal of all charges against his wife, and the impact of this offer on his decision not to proceed to trial.
Such evidence, together with the declarations from the four children, any admissible sections of the Attorney General's Final Report, and whatever additional admissible evidence appellant could have obtained through the resources noted herein, may have satisfied appellant's burden to show newly discovered evidence that he did not know how the children were interrogated, that he did not personally know whether his wife and the Nokeses were innocent of all charges, and he felt compelled to enter his plea in 1987 under duress to avoid lengthy prison terms for his wife and the Nokeses.
As we have explained, the exhibits in support of appellant's petition included transcripts of testimony from several children, including his own daughter, at the time of the criminal proceedings and prior to his plea. However, appellant's petition submitted limited excerpts from these transcripts in piecemeal form, lacking context or explanations about the types of hearings and dates.
Mendez limits appellant's claims about his own innocence, but appellant presumably would not have known whether his wife and the Nokeses were also innocent of whatever charges had been filed against them. While appellant may have been ready to take his own case to trial to prove his innocence, he may have felt under duress to accept the plea agreement for the sake of his family and friends, without knowing that all the children alleged to be victims had been subject to the same type of improper interview techniques that were condemned by Michaels and the Attorney General's Final Report.
CONCLUSION
We remain concerned about the potential due process violations that may have resulted in the allegations made by the children against appellant and other individuals during the 1980s. We have cited the Attorney General's acknowledgement in this case, that the "flawed" investigations " 'ultimately f[l]oundered in a sea of unproven allegations, insufficient corroborating evidence, and bizarre allegations that in some instances were proven to be false and raised serious questions about the victims' credibility.' "
Nevertheless, we are compelled to conclude that based on the evidentiary deficiencies in appellant's petition, the superior court did not abuse its discretion when it denied appellant's motion for a continuance, and summarily denied appellant's petition for writ of error coram nobis.
Appellant is not foreclosed from filing another petition with the appropriate supporting evidentiary exhibits and/or declarations that cure these pleading and evidentiary deficiencies.
Our holding does not preclude appellant from seeking relief under Penal Code section 1473.7 and/or Senate Bill 384. Nor does our holding preclude appellant from examining In re Donna Sue Hubbard (Aug. 7, 1995, F021117) [nonpub. opn.], and the record, including the volume of investigative reports entitled "Brooke [H.]."
DISPOSITION
The superior court's judgment denying appellant's petition for writ of error coram nobis is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.