People v. Forest

• Decision Date: 25 October 2017
• Docket Number: A148330
• Citation: 224 Cal.Rptr.3d 827,16 Cal.App.5th 1099
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Joseph FOREST, Defendant and Appellant.

16 Cal.App.5th 1099

224 Cal.Rptr.3d 827

The PEOPLE, Plaintiff and Respondent,

v.Robert Joseph FOREST, Defendant and Appellant.

A148330

Court of Appeal, First District, Division 1, California.

Filed October 25, 2017

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, and Matthew Dirkes, San Francisco, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Jeffrey M. Laurence, Assistant Attorneys General, Gregg E. Zywicke and Bruce M. Slavin, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

DONDERO, J.

On November 8, 2006, Robert Forest pointed a handgun at Stanley Douglass. Forest was arrested the next day and charged with felony assault with a deadly weapon. ( Pen. Code, § 245, subd. (a)(2).)¹ Following a preliminary hearing, he was held to answer, and his motion to set aside the information was denied, but the case never went to trial. On January 18, 2008, the trial court granted the prosecution's motion to dismiss the information for insufficient evidence. On October 7, 2008, Forest unsuccessfully applied to the superior court for a finding of factual innocence.

(§ 851.8, subd. (c).) Defendant unsuccessfully appealed from that decision. In 2016, defendant unsuccessfully sought to vacate the superior court's prior judgment denying his 2008 application by petitioning for a writ of coram nobis . He appeals the denial of that petition. We deny the petition on the merits.

STATEMENT OF HISTORICAL AND PROCEDURAL FACTS²

"At approximately 5:20 p.m. on November 8, 2006, Jacob Long was driving by the Tip Top Lounge on North Franklin Street in Fort Bragg when he heard some yelling and loud obscenities. Long's car window was open and he looked over and saw two men in an altercation. He saw defendant holding a gun to the head of an African-American man (subsequently identified as Stanley Douglass). Defendant was yelling obscenities at Douglass, and was holding him by the back of his shirt with one hand and had the gun to his head with the other. Douglass looked scared. Long recalled defendant telling Douglass, '[D]on't mess with me' or 'don't fuck with me.' Long thought that defendant was going to kill Douglass. Douglass did not make any threatening gestures and 'stood there in shock.' Douglass walked away quickly; defendant got on his motorcycle and left. Long called 911.

"Douglass testified that on the day of the incident, he was standing with his friend on the street when defendant walked by. Douglass asked defendant for a cigarette. Defendant responded something other than 'no,' so Douglass followed him and asked him, '[W]hat did you say?' Defendant responded aggressively and said 'some profanity.' Defendant then pulled a gun out, and grabbed him. Defendant said something about shooting it. Douglass did not physically threaten defendant in any way and tried to walk away. Defendant pointed the gun at Douglass's face and then toward his back. Douglass thought that he could have died that day.

"Sergeant Mary Ann Miller testified that defendant came to the police station on the morning of November 9, 2006, and gave her his .32 caliber handgun. He told her that he had used the gun the previous evening for self-defense purposes.

"The trial court held defendant to answer, finding that the evidence was sufficient to show that defendant committed an assault with a firearm.

"Defendant moved to dismiss the information pursuant to section 995, contending that the magistrate erred in excluding the testimony of Sergeant Brandon Lee regarding statements defendant made to Lee, and that the prosecution failed to adduce sufficient evidence at the preliminary hearing because Douglass's testimony lacked credibility and was contradictory. The court denied the motion, concluding the magistrate's ruling that Lee's testimony was not reasonably likely to establish an affirmative defense was proper. The court noted that: (1) there was eyewitness testimony defendant was holding a gun to the victim's head; (2) substantial evidence supported the magistrate's determination of credibility, and (3) in any event, it would not substitute its judgment as to the weight of the evidence for that of the magistrate.

"On January 18, 2008, the People moved to dismiss the complaint on the ground of insufficient evidence. The court granted the motion.

"On October 7, 2008, defendant petitioned for a finding of factual innocence pursuant to section 851.8. In support of the petition, he submitted his declaration setting forth his version of the incident in which he averred that Douglass grabbed his jacket and demanded a cigarette. Defendant responded by telling him that his conduct was a crime and could get him hurt. Defendant said that Douglass followed him and yelled that he was going to 'f— [defendant] up' and said he was a gang-banger from San Francisco. Defendant became apprehensive and when Douglass placed his hand behind his back, defendant, in fear for his life, drew his pistol to make Douglass back off. Defendant also submitted the declaration of Stephen Soria[,] who stated that he witnessed the incident. He averred that he saw an African-American man approach defendant, tug on his jacket, and ask him for a cigarette. Defendant said 'no' and pushed the African-American man away. The African-American man followed defendant and they exchanged words. Defendant told the African-American man to get away from him. Defendant reached into his jacket pocket, pulled out a small pistol, and pointed it at the African-American man. They struggled for a few seconds before defendant backed away, put the gun back in his pocket, and walked back to his motorcycle.

"The court denied the petition, finding that the People presented substantial evidence that reasonable cause existed to believe that defendant assaulted Douglass with a firearm, and that defendant did not act in self-defense." ( Forest I , supra , A124144, at pp. *1–*3.)

On August 3, 2010, Division Four of this court affirmed the trial court's ruling in an unpublished opinion, as noted in footnote 2, ante . On October 20, 2010, the California Supreme Court denied review. (People v. Forest , S186284.) On March 7, 2011, the United States Supreme Court denied certiorari ( Forest v. California (2011) 562 U.S. 1272, 131 S.Ct. 1615, 179 L.Ed.2d 502.) On January 13, 2016, after filing two civil lawsuits arising out of the same 2006 arrest,³ Forest filed a "Petition for Writ of Error Coram Nobis and For a Finding of Factual Innocence" in the Mendocino County Superior Court, seeking to vacate that court's prior judgment finding against him in the original factual innocence matter.

DISCUSSION

Jurisdiction

Defendant filed his petition for writ of error coram nobis in the Mendocino County Superior Court. There is no judgment of conviction to collaterally attack: the charged violation of section 245, subdivision (a)(2) was dismissed before trial. The judgment defendant attacks is the Mendocino County Superior Court's order denying his petition for a finding of factual innocence. (§ 851.8.)⁴ That order was appealed to the First District Court of Appeal and affirmed by Division Four of this court. ( Forest I , supra , A124144.) Review was denied by the California Supreme Court. (People v. Forest , review den. Oct. 20, 2010, S186284.) The remittitur issued October 27, 2010.

Section 1265 states in relevant part: "(a) ... [I]f a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for a writ of error coram nobis shall be brought to procure the vacation of that judgment, except in the court which affirmed the judgment on appeal. When a judgment is affirmed by a court of appeal and a hearing is not granted by the Supreme Court, the application for the writ shall be made to the court of appeal." (Italics added.)

While it is often stated that the writ is not available where the defendant has a remedy by appeal or other adequate remedy ( People v. Kim (2009) 45 Cal.4th 1078, 1093–1094, 90 Cal.Rptr.3d 355, 202 P.3d 436 ) ( Kim ), in fact, by its very terms section 1265 contemplates that a writ of error coram vobis will lie to vacate a judgment that has been affirmed on appeal. "[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." ( People v. Sica (1953) 116 Cal.App.2d 59, 61–62, 253 P.2d 75 ( Sica ).) Pursuant to section 1265, the appellate court retains jurisdiction to entertain a petition to vacate the judgment it affirmed. Thus, by operation of the statute, once a judgment has been appealed, the appellate court has the exclusive jurisdiction to adjudicate a coram nobis petition.

It follows the Mendocino County Superior Court had no jurisdiction to hear and adjudicate the merits of defendant's coram nobis petition. ( Sica, supra , 116 Cal.App.2d at pp. 60–63, 253 P.2d 75 ; People v. Mort (1963) 214 Cal.App.2d 596, 599–600, 29 Cal.Rptr. 650 ; People v. Allenthorp (1966) 64 Cal.2d 679, 680–682, 51 Cal.Rptr. 244, 414 P.2d 372 ( Allenthorp ); People v. Malveaux (1996) 50 Cal.App.4th 1425, 1429–1430, 1434–1436, 59 Cal.Rptr.2d 371.)

The upshot is that while a postjudgment order denying a motion to vacate the judgment or writ of error coram nobis in the superior court is generally appealable ( Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 134, 218 Cal.Rptr.3d 654, 395 P.3d 689 ; Allenthorp, supra , 64 Cal.2d at p. 682, 51 Cal.Rptr. 244, 414 P.2d 372 ), by virtue of section 1265, defendant's appeal from the superior court's order below is a non-starter. We may dismiss the appeal. ( Sica, supra , 116 Cal.App.2d at p. 64, 253 P.2d 75.) We may also treat the appeal as an original proceeding in this court for a writ of error coram vobis . ( People v. Brady (1973) 30 Cal.App.3d 81, 83, 105 Cal.Rptr. 280 ( Brady ); People v. Kennedy (1953) 116 Cal.App.2d 273, 275–277, 253...