People v. Clavel CA2/2 ( 2014 )

Filed 5/15/14 P. v. Clavel CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B250766
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. BA329860 & B314716)
v.
MARVIN RODRIGUEZ CLAVEL,
Defendant and Appellant.
THE COURT:*
In 2007, appellant Marvin Rodriguez Clavel pleaded no contest to one count of
robbery. The trial court placed appellant on three years of formal felony probation. In
2008, appellant pleaded no contest to burglary and petty theft and admitted a probation
violation in the robbery case. In 2010, appellant filed motions to vacate his plea in both
cases. The motions were denied. Appellant filed a petition for writ of error coram nobis.
Appellant alleged that his plea of nolo contendere did not have the legal effect of a guilty
*
ASHMANN-GERST, Acting P. J., CHAVEZ, J., FERNS, J.†
† Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
plea. Appellant also claimed he received ineffective assistance of counsel. The trial
court denied appellant’s petition, and this appeal followed.
PROCEDURAL BACKGROUND
By information dated May 4, 2007, in Los Angeles County Superior Court case
No. BA314716, appellant was charged with carjacking (Pen. Code, § 215, subd. (a))1 and
robbery (§ 211). On May 30, 2007, appellant pleaded no contest to the robbery and was
placed on three years’ formal felony probation.
By information dated November 13, 2007, in Los Angeles County Superior Court
case No. BA329860, appellant was charged with petty theft with a prior (§ 666) and
burglary (§ 459). The People moved to revoke appellant’s probation in case
No. BA314716. On March 12, 2008, appellant pleaded no contest to both burglary and
petty theft in case No. BA329860, and admitted his probation violation in case
No. BA314716. The trial court sentenced appellant to three years in state prison and a
concurrent two-year sentence for the probation violation.
On July 12, 2010, appellant filed a motion to vacate his plea in case
No. BA329860. The trial court denied the motion.
On October 4, 2010, appellant filed a motion to vacate his plea in case
No. BA314716. The trial court denied the motion.
On November 19, 2012, appellant filed a petition for dismissal of his conviction in
case No. BA314716, pursuant to section 1203.4a. On December 18, 2012, appellant’s
petition was denied.
On March 20, 2013, appellant requested an explanation for the court’s denial of
his petition for dismissal. On March 26, 2013, the trial court stated on the record that
appellant had not successfully completed probation and was not eligible for dismissal
under section 1203.4a.
1 All further references to statutes are to the Penal Code, unless stated otherwise.
2
On June 14, 2013, appellant filed a petition for writ of error coram nobis seeking
to dismiss his conviction in case No. BA314716, and his subsequent probation violation
deriving from his conviction in case No. BA329860.
On July 31, 2013, the trial court denied the petition. In a written decision, the
court stated that appellant had been properly advised of the legal effect and consequences
of a no contest plea. Appellant was asked if he understood and he answered in the
affirmative. Appellant was convicted by his plea, and placed on probation. Appellant
then “violated his probation by being arrested and convicted for more crimes.” Citing
People v. Kim (2009) 45 Cal. 4th 1078, 1095 (Kim), the court stated that an ineffective
assistance of counsel claim is not cognizable on coram nobis.
DISCUSSION
Counsel was appointed to represent appellant on appeal. After examination of the
record, counsel filed an “Opening Brief” in which no issues were raised. On
December 13, 2013, appellant was advised that he had 30 days within which to
personally submit any contentions or issues which he wished us to consider. No response
was received.
The writ of error coram nobis is the modern equivalent of a nonstatutory motion to
vacate a conviction. Its role ‘“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.)
The substantive requirements for obtaining the writ under modern law are set forth
in People v. Shipman (1965) 62 Cal. 2d 226. The writ is available only when three
requirements are met: (1) The petitioner must show the existence of some fact which,
without 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.
(2) The petitioner must show that the newly discovered fact does not go to the merits of
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issues previously tried (which cannot be reopened). (3) The 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. . . .’ [Citations.]” (People v. Shipman, supra, at p. 230; Kim,
supra, 45 Cal.4th at p. 1093.)
“In 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.” (People v.
Totari (2002) 28 Cal. 4th 876, 885, fn. 4.)
Appellant did not make a prima facie showing of merit. Only errors of fact, not
errors of law, are a proper subject of a coram nobis petition. (Kim, supra, 45 Cal.4th at
p. 1093.) In addition, a writ of error coram nobis is unavailable for a claim of ineffective
assistance of counsel. Accordingly, the trial court’s denial of appellant’s motion was not
appealable, and we dismiss the instant appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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