People v. Bush, B195691 (Cal. App. 6/18/2008)

• Decision Date: 18 June 2008
• Docket Number: B195691
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PHILLIP BRUNO BUSH, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. PHILLIP BRUNO BUSH, Defendant and Appellant.

B195691

Court of Appeals of California, Second Appellate District, Division Seven

June 18, 2008

Not to be publish

Appeal from an order of the Superior Court of Los Angeles County, No. NA026803, Gary J. Ferrari, Judge. Appeal dismissed.

Trutanich•Michel, C.D. Michel, and Brigid J. Joyce, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P. J.

Phillip Bruno Bush appeals from the trial court's denial of his petition for writ of error coram nobis and nonstatutory motion to vacate the judgment. Because the petition/motion fails to state a prima facie case for relief, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

1. Bush's Plea Hearing

Bush attacked his wife with a knife. In late November 1995 Bush was arrested and charged by felony complaint with assault with a deadly weapon or by means of force likely to produce great bodily injury and inflicting corporal injury on a spouse. As to the corporal injury count, it was specially alleged Bush had personally used a deadly weapon (a knife) in committing the offense.¹

On March 8, 1996, pursuant to a negotiated agreement, Bush entered a plea of no contest to the charge of inflicting corporal injury on a spouse and admitted the deadly weapon enhancement allegation. According to the terms of the plea agreement, imposition of sentence was to be suspended and Bush placed on five years' probation with credit for time served in county jail. The prosecutor agreed the aggravated assault count would be dismissed and further agreed, if Bush complied with all terms and conditions of probation, the People would not oppose a subsequent request by Bush to have his felony conviction reduced to a misdemeanor.

Bush was assisted at the plea hearing by attorney James Bianco. At the time he entered his plea, Bush was advised of his constitutional rights to a preliminary hearing and a jury trial, as well as the nature and consequences of his plea. Bush was informed of the terms and conditions of his probation, which included a prohibition against owning, using or possessing any deadly or dangerous weapons. Bush, a recreational hunter, and Bianco requested clarification whether knives and a bow and arrow were considered deadly or dangerous weapons. The court explained guns and knives, but not a bow and arrow, fell into this category. Bush inquired if a hunting knife could be used in conjunction with a bow and arrow; the court and prosecutor advised Bush to ask his probation officer.

The trial court found Bush's plea was knowingly, intelligently and voluntarily entered, and there was a factual basis for the plea. Bianco joined in the plea and admission and stipulated to a factual basis.

2. Subsequent Proceedings

At the outset of the May 1, 1996 sentencing hearing the trial court summarized the negotiated sentence, noting that, upon Bush's successful completion of probation, his felony conviction would be reduced to a misdemeanor. The prosecutor added the probation condition prohibiting Bush from owning, using or possessing any deadly or dangerous weapons was to be modified to exclude a hunting knife.

The trial court sentenced Bush pursuant to the plea agreement, suspending imposition of sentence and placing Bush on five years' formal probation with specified terms and conditions, including that he serve two days in county jail, with credit for time served, and that he was "not to own, use, or possess any dangerous or deadly weapons other than previously mentioned by [the prosecutor]." Bush did not appeal from the judgment.

After sentencing Bianco told the court police officers had confiscated three guns from Bush's residence at the time of his arrest. "Two are weapons which we'd just as soon leave in the possession of police department [sic] until such time as [Bush] is able to possess weapons, which by my reading of the law would be at least 10 years."² Bush's wife owned the third gun; the trial court agreed to have it released to her upon sufficient proof of ownership. According to Bush, his probation was terminated in 1999 two years early.³

3. Bush's Request for Relief from His Plea Agreement

On June 29, 2006, long after his probation had ended, Bush filed a petition for writ of error coram nobis and motion to vacate the judgment, contending his 1996 plea and admission were induced by his mistaken belief he would be able to lawfully possess firearms when he was no longer on probation and his conviction had been expunged. Instead, because he was convicted of a domestic violence offense, Bush is currently subject to a lifetime ban on possessing firearms under federal law (18 U.S.C. § 922(g)(9) (the Lautenberg Amendment)).⁴

In the declaration filed in support of his petition/motion, Bush stated at the time of his plea he "understood that if [he] were to perform successfully on probation, the charge would automatically be reduced to a misdemeanor and then expunged";⁵ Bush's case "was mistakenly calendared for expungement after only three years, in 1999, and when [Bush] pointed out the error to [his] probation officer, [the probation officer] commended [Bush] for [his] honesty and recommended the early termination anyway, which was granted"; "[b]elieving [he] was now eligible to possess a firearm," Bush attempted to register a gun with the California Department of Justice, but was rejected by reason of his 1996 conviction; Bush "immediately" contacted Bianco, "who for the first time advised [Bush] of the 10-year prohibition under state law";⁶ Bush then "waited out the 10-year period" before contacting Bianco in March 2006 and learning of the federal lifetime ban on possessing firearms. Bush asserted, "Had I known of the lifetime prohibition at the time of my plea, I would not have accepted the plea bargain." Bush maintains he "need[s] to be eligible to possess firearms in order to protect [his] daughter and [himself] during activities of hunting, camping and fishing, as well as to teach [his] daughter about the safe handling of firearms."

In his memorandum of points and authorities accompanying the petition/motion, Bush argued his plea of no contest was not knowing or intelligent and his counsel rendered ineffective assistance because: (1) the effective date of the Lautenberg Amendment was January 1, 1996, well before Bush entered his plea; (2) although "charged with knowing about" the Lautenberg Amendment, Bianco failed at the time of the plea to advise Bush he would be precluded for life from possessing firearms under federal law as a direct consequence of the negotiated settlement;⁷ and (3) Bianco affirmatively misadvised that Bush was prohibited by state law from possessing firearms for 10 years following his conviction, which led Bush to delay taking any legal action to restore his ability to possess firearms until 2006.

At the November 1, 2006 hearing on his petition/motion, Bush was represented by new counsel. The judge was the same bench officer who had presided at the plea hearing. The court read and considered the contents of the superior court file, including the transcript of the plea hearing, and heard argument from counsel. At the conclusion of the hearing the court denied the petition/motion.⁸

DISCUSSION

A petition for a writ of error coram nobis, the equivalent of a nonstatutory motion to vacate the judgment (People v. Dubon (2001) 90 Cal.App.4th 944, 950; People v. Gallardo (2000) 77 Cal.App.4th 971, 982), lies to give relief to a petitioner who through fraud, coercion or excusable mistake was deprived of a fair trial on the merits. (People v. Carty (2003) 110 Cal.App.4th 1518, 1523.) The denial of a defendant's request for coram nobis relief is reviewed for an abuse of discretion. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) However, denial of a petition for writ of error coram nobis is not appealable unless the petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 ["[i]n an appeal from a trial court's denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal"]; see Dubon, at p. 950; Gallardo, at p. 982.)

"The writ of 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. . . .'" (People v. Shipman (1965) 62 Cal.2d 226, 230.)

Bush has failed to raise any claims properly cognizable in a petition for writ of error coram nobis. A writ of error coram nobis will not issue to correct purported errors of law. (People v. Reid (1924) 195 Cal. 249, 258 overruled on other grounds in People v. Hutchinson (1969) 71 Cal.2d 342, 347-348; accord, People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) That Bush was unaware the...