People v. Ibanez

• Decision Date: 29 November 1999
• Docket Number: No. E024579.,E024579.
• Citation: 90 Cal.Rptr.2d 536,76 Cal.App.4th 537
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Vincent IBANEZ, Defendant and Respondent.

90 Cal.Rptr.2d 536

76 Cal.App.4th 537

The PEOPLE, Plaintiff and Appellant, v. Vincent IBANEZ, Defendant and Respondent.

No. E024579.

Court of Appeal, Fourth District, Division 2.

November 29, 1999.

Certified for Partial Publication.^*

Review Denied March 15, 2000.

Grover Trask, District Attorney, Elaina G. Bentley and Timothy F. Freer, Deputy District Attorneys, for Plaintiff and Appellant.

Wallin & Klarich and Jill M. Bojarski, Tustin, for Defendant and Respondent.

OPINION

RICHLI, J.

This is an appeal by the Riverside County District Attorney (the People) from the trial court's order granting defendant Vincent Ibanez (defendant) a writ of coram nobis to vacate judgment and withdraw his plea of guilty.¹ As explained below, we will reverse the trial court's ruling on the grounds a writ of error coram nobis cannot be used to correct a legal error, and because the trial court abused its discretion in granting defendant's motion to withdraw his plea.

I FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 1998, the People filed a felony complaint against defendant, charging him with six counts of lewd and lascivious acts on a child under the age of 14 (Pen.Code, § 288, subd. (a)² (counts I, III — VII) and one count of continuous child molestation (§ 288.5) (count II).

On August 26, 1998, prior to the preliminary hearing, defendant, who was then represented by Anthony Contreras, entered an open plea to all counts on the basis of the trial court's sentence of eight years. At that time, the trial court went over the Tahl form (In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) with defendant, found his plea to be knowing and voluntary, and expressly took a factual basis for the plea. The court then proceeded to (1) take a waiver of formal arraignment for judgment; (2) recite a formal allocution pursuant to section 1200; (3) orally pronounce sentence; (4) calculate credit for time served; (5) impose the necessary restitution fines; (6) advise defendant of parole and registration consequences; and, finally, (7) order an AIDS test pursuant to section 1202.1. At this hearing, the trial court also set September 9, 1998, as the day defendant was to surrender for execution or commitment of sentence to allow him to get his personal affairs in order.

On September 9, 1998, defendant, who was represented by new counsel, Stephen D. Klarich, informed the court that he wished to make a motion to withdraw his guilty plea based on his former attorney's failure to investigate the case and advise him fully of the potential consequences of the plea. He thus requested a 30-day continuance to prepare and file his motion. The court granted defendant's continuance over the People's objection.

On October 6, 1998, defendant filed a "Motion and Petition for Writ of Error Coram Nobis to Vacate Judgment and Withdraw Plea of Guilty" (capitalization omitted) with supporting points and authorities and exhibits. The petition essentially alleged³ defendant's plea of guilty should be withdrawn because he was not advised by his attorney or by the court, prior to entering his guilty plea, that his plea to multiple counts of child molestation against multiple victims subjected him to the potential of civil commitment proceedings under Welfare and Institutions Code section 6600, et seq., informally known as the Sexually Violent Predators Act (SVPA).⁴ On December 10, 1998, the People filed their opposition to defendant's petition.

The petition was heard and granted on January 8,1999. The trial court concluded the petition should be granted because (1) the law was unclear whether civil commitment proceedings under the SVPA might be construed as a direct penal consequence of the guilty plea to which a defendant must be informed before he pleads; and (2) the Tahl form,⁵ which contains a box for "potential civil commitment," was not initialed by defendant. Defendant then withdrew his plea of guilty on counts I-VII, and a preliminary hearing date of February 19,1999, was set.

On March 9, 1999, the People filed a timely notice of appeal and a simultaneous petition for writ of prohibition/mandate. On March 17, 1999, this court summarily denied the People's petition for writ of mandate.⁶ This appeal followed.

II DISCUSSION

A. Appealability

The People contend the order granting defendant's petition for a writ of coram nobis is an order after judgment which is appealable under section 1238, subdivision (a)(5),⁷ because defendant was sentenced before he sought to withdraw his plea. Defendant responds he was not effectively sentenced because the court merely stated an indicated sentence which was contingent on his return to court on a later date. As explained below, defendant is wrong.

The People have no right of appeal except as provided by statute. (People v. Smith (1983) 33 Cal.3d 596, 600, 189 Cal. Rptr. 862, 659 P.2d 1152; People v. Drake (1977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622; People v. Bailey (1996) 45 Cal.App.4th 926, 929, 53 Cal.Rptr.2d 198.) "The restriction on the People's right to appeal is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs but is a substantive limitation on review of trial court determinations in criminal trials." (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 498, 72 Cal.Rptr. 330, 446 P.2d 138.)

Section 1238 specifies the judgments and orders of a trial court from which the People may appeal. An "order after judgment" within the meaning of section 1238 is an order which is rendered after the imposition of sentence. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2, 153 Cal.Rptr. 40, 591 P.2d 63 [" ... judgment is synonymous with the imposition of sentence...."]; People v. Warner (1978) 20 Cal.3d 678, 682, fn. 1, 143 Cal.Rptr. 885, 574 P.2d 1237 [same]; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725, 8 Cal. Rptr.2d 610 [same].) In a criminal case, judgment is rendered when the trial court orally pronounces sentence. (§§ 1191 and 1202; People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9,14 Cal.Rptr .2d 801, 842 P.2d 100; Chlad, supra, at p. 1725, 8 Cal. Rptr.2d 610; People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal.Rptr. 473, 535 P.2d 337; People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3, 342 P.2d 889.)

Here, the trial court orally pronounced sentence. After finding the plea was free and voluntary and knowingly and intelligently made, and after expressly taking a factual basis for the plea, the court specifically stated, "Judgment order of the Court that probation be denied, and the defendant be sentenced to a period of 8 years in State prison."⁸ The court then allowed defendant to remain free on bail until September 9, 1998, to get his affairs in order before he turned himself in for custody.⁹ Immediately thereafter, the court took a waiver of formal arraignment for judgment, proceeded to recite a formal allocution pursuant to section 1200,¹⁰ calculated credit for time served, imposed the necessary restitution fines, advised defendant of the parole and registration consequences, and ordered an AIDS test as required by section 1202.1.

Finally, before the proceedings concluded, the trial court again pronounced defendant's sentence. Sentence of defendant was therefore effectively imposed by the trial court on August 26, 1998, before the court granted defendant's petition for writ of coram nobis, despite defendant's contention to the contrary.¹¹

Accordingly, we find there was a judgment against defendant. (Stephens v. Toomey (1959) 51 Cal.2d 864, 871, 338 P.2d 182.) The order granting defendant's petition for writ of coram nobis can therefore be considered an order after judgment and thus is appealable under subdivision (a)(5) of section 1238. (People v. Goodspeed (1963) 223 Cal.App.2d 146, 152, 35 Cal. Rptr. 743.)

B. Writ of Error Coram Nobis

The People contend the trial court abused its discretion when it granted defendant's writ of error coram nobis, because the court erroneously concluded defendant needed to be advised of potential civil commitment under the SVPA before he pleaded guilty. Defendant replies the court did not abuse its discretion because the fact unknown to the court at the time of his guilty plea was that he did not know he faced the potential of civil commitment under the SVPA.

A writ of error coram nobis is reviewed under the standard of abuse of discretion. (People v. Tuthill (1948) 32 Cal.2d 819, 821, 198 P.2d 505; People v. Goodspeed, supra, 223 Cal.App.2d 146, 156, 35 Cal.Rptr. 743.) A writ of coram nobis is generally used to bring factual errors or omissions to the court's attention. (§ 1265.) "The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not represented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]" (People v. Soriano (1987) 194 Cal.App.3d 1470, 1474, 240 Cal.Rptr. 328, italics omitted; see also People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal. Rptr. 1 397 P.2d 993; People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312-1313, 68 Cal.Rptr.2d 786; People v. Castaneda, supra, 37 Cal.App.4th at pp. 1618-1619, 44 Cal.Rptr.2d 666.) "The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]" (People v. Sharp (1958) 157 Cal.App.2d 205, 207, 320 P.2d 589.)

Here, there is clearly no new evidence, and the only contention is the legal contention of whether the law requires defendant to be advised of potential civil commitment proceedings under the SVPA. Indeed, the facts are not in dispute. The error alleged here is a mistake of law attributed...