Filed 8/25/20 P. v. Tonoyan CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION TWO


THE PEOPLE,                                                           B291714

         Plaintiff and Respondent,                                    (Los Angeles County
                                                                      Super. Ct. No. GA091328)
         v.

DAVID TONOYAN,

         Defendant and Appellant.


     APPEAL from an order of the Superior Court of
Los Angeles County. Robert P. Applegate, Judge. Affirmed.

     Cohen Williams LLP and Alyssa D. Bell for Defendant and
Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
                      ____________________
        More than a year-and-a-half after pleading no contest to
two counts of perjury by declaration (Pen. Code, § 118, subd. (a))1
and making a false report of a criminal offense (§ 148.5, subd.
(a)), defendant and appellant David Tonoyan sought relief
pursuant to at least two petitions for coram nobis. Following the
denial of his most recent petition for coram nobis, defendant
timely filed a notice of appeal. He argues that the trial court’s
order denying relief is not supported by substantial evidence. At
a minimum, defendant contends that the trial court should have
held an evidentiary hearing before drawing certain conclusions
that led to its denial of defendant’s petition. Finally, defendant
asserts that he was entitled to coram nobis relief.
        Because the trial court did not abuse its discretion, we
affirm the order denying defendant’s petition for coram nobis
relief.
                   FACTUAL BACKGROUND2
        On November 28, 2012, defendant reported to the Glendale
Police Department that he had been a victim of identity theft. He
claimed that a Discover credit card had been opened in his name.
The card became delinquent and was referred to collections. He
denied any association with the Maple Street address or phone
number on the account.
        Later, Glendale police found that: (1) defendant had used
the Maple Street address from November 2004 to October 2011;

1     All further statutory references are to the Penal Code
unless otherwise indicated.

2      Because defendant pled no contest to the charges prior to a
preliminary hearing, the facts are taken from the probation
officer’s report.




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(2) the credit card account was opened in 2005; (3) the account
became delinquent in 2008; and (4) the account was subsequently
referred to collections.
       On August 6, 2010, a civil judgment was entered ordering
defendant to pay $10,497.69 in damages and $360 in costs to
Discover Bank. The judgment was mailed to the Maple Street
address. Defendant filed a request to vacate the judgment.
Under penalty of perjury, defendant claimed that he never
applied for, agreed to, obtained, used, or benefitted from Discover
Bank. He later filed a second motion. Again under penalty of
perjury, defendant declared that he had been a victim of identity
theft and never lived at the Maple Street address.
       Defendant was interviewed by police investigators. He
reiterated that he never lived at the Maple Street address, denied
that his family had ever lived there, and denied opening the
Discover card account. He was confronted with evidence showing
that he and his family had lived at the Maple Street address and
had used the Discover card, including: (1) a 2005 photograph of
defendant sitting on a couch at that address; (2) a 2005 citation
issued to him, where defendant provided the officer with the
Maple Street address and signed the citation; (3) utility bills in
his parent’s name; and (4) charges made to the account that were
made to the university he attended. Defendant did not respond
to the evidence, stating that he did not want to incriminate
himself.
                 PROCEDURAL BACKGROUND
I. Defendant’s plea and sentence
       On April 7, 2014, defendant pled no contest to two counts of
perjury by declaration and making a false report of a criminal
offense. Imposition of sentence was suspended, and defendant
was placed on formal probation for three years.




                                 3
II. First petition for writ of coram nobis
       On December 21, 2015, defendant filed a petition for coram
nobis. Thereafter, the trial court granted defendant leave to file
a superseding and supplemented petition.
       On May 16, 2016, defendant filed a writ of coram nobis
petition in the interest of justice. The petition included a
declaration from defendant, stating that he was unaware that his
no contest plea would result in his inability to obtain several
business licenses, that the business license requirements became
effective after his conviction, and could not have been reasonably
discovered before he filed his petition, and that he would not have
accepted the plea bargain if he had known about the licensing
requirements.
       On July 15, 2016, the trial court denied defendant’s motion,
finding that, at the time of his plea, defendant should have
known it would adversely affect his real estate career and that
the adverse effect of the convictions would not have prevented the
trial court from rendering judgment. Moreover, the trial court
found that defendant failed to exercise due diligence because
there was an unexplained 20-month delay between his conviction
(Apr. 2014) and his first petition (Dec. 2015).
III. Second petition for writ of coram nobis
       On December 13, 2017, defendant filed a second petition for
writ of coram nobis. In this petition, defendant claimed that plea
counsel fraudulently misadvised him that the plea would not
affect his businesses, that there was no plea deal with the Los
Angeles County District Attorney’s Office, that in July 2017, he
was informed that he needed to obtain “California Finance
Lender Law and Deferred Deposit Transactions licenses to do
business in the state”, and that his conviction prevented him




                                 4
from obtaining the requisite license. No declaration from plea
counsel was attached to the petition.
       On December 22, 2017, the trial court, on its own motion,
issued an order to show cause (OSC) as to why it should consider
defendant’s second petition. On May 29, 2018, the trial court
heard argument on the OSC and took the matter under
submission.
       On June 29, 2018, the trial court issued a written order
denying defendant’s second petition. It found that defendant
accepted an offer from the trial court in exchange for a no contest
plea to all of the charges (the open plea). Furthermore, the trial
court did not credit defendant’s contention that his former
attorney defrauded him by assuring him that his business would
not be affected if he accepted a “‘plea deal.’” In so finding, the
trial court noted that defendant omitted any assertion that his
attorney misrepresented the terms of his plea in his May 9, 2016,
declaration, that defendant had not raised the alleged
misrepresentation in any of his prior requests for coram nobis
relief, and that defendant “lied repeatedly and outrageously”
when his crimes were being investigated.
       Moreover, the trial court found that although defendant
may not have been aware “of the extent of the adverse effect
[that] his convictions would have on his real estate and mortgage
lending career[, this] falls far short of a showing the [c]ourt would
not have rendered judgment had the [c]ourt known of this
adverse effect.” The trial court explained that the record did not
show that the sentencing court would have acted differently or
reached another outcome in light of the alleged new facts because
the open plea agreement offered by the sentencing court was
“most lenient—one day in jail with credit for time served, and 30




                                  5
days of community labor, essentially a misdemeanor sentence—
and could reasonably be interpreted as the [c]ourt’s effort to
actually ameliorate any harsh consequences of [defendant’s]
misconduct in order to settle the matter.”
       In addition, the trial court incorporated its reasons for
denying the petition in its July 15, 2016, ruling, namely that at
the time of the plea, defendant should have known that his
convictions would adversely affect his real estate career and that
he failed to exercise due diligence. Finally, the trial court noted
that it was aware of the impact its ruling would have on the
employees of defendant’s companies.
                            DISCUSSION
I. Standard of review
       As the parties agree, we review the trial court’s order
denying his petition for writ of error coram nobis for abuse of
discretion. (People v. Kim (2009) 45 Cal.4th 1078, 1095 (Kim).)
“The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason.” (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478.) A trial court’s factual findings in a
coram nobis proceeding are reviewed for substantial evidence.
(See People v. Savin (1940) 37 Cal.App.2d 105, 108.)
II. Relevant law
       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; the ‘petition’ is regarded as a
motion to vacate the judgment; it is not a complaint nor does it
initiate an independent action [citation].” (People v. Adamson
(1949) 34 Cal.2d 320, 329–330; see also People v. Sica (1953) 116
Cal.App.2d 59, 61–62.) The petition is a limited remedy and the




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moving party bears a heavy burden to show that he is entitled to
relief. (People v. Ibanez (1999) 76 Cal.App.4th 537, 548–549.)
       The grounds on which a litigant may obtain coram nobis
relief “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; see also People v. Mbaabu (2013) 213 Cal.App.4th 1139,
1146.)
       A petitioner seeking coram nobis relief must satisfy three
criteria: (1) “‘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’”; (2) the “‘newly discovered
evidence . . . [does not go] to the merits of issues tried’”; and
(3) “‘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;
Kim, supra, 45 Cal.4th at pp. 1092–1093; People v. Mbaabu,
supra, 213 Cal.App.4th at p. 1146.)
III. The trial court did not err
       The appellate record establishes that the trial court did not
abuse its discretion when it denied defendant’s petition seeking
coram nobis relief. Defendant did not establish at least two of
the three requisite criteria to obtain the relief sought. There is
no evidence of any fact that was not presented but if presented
would have prevented the rendition of the same judgment. And,




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defendant did not demonstrate due diligence in discovering the
alleged facts that he claims compel reversal.
       Urging us to reverse, defendant contends that there were
new facts that he could not have discovered and that would have
prevented rendition of the judgment, namely the fact that he did
not know the damage his convictions were going to do to his
businesses. We disagree. “New facts that would merely have
affected the willingness of a litigant to enter a plea, or would
have encouraged or convinced him or her to make different
strategic choices or seek a different disposition, are not facts that
would have prevented rendition of the judgment.” (Kim, supra,
45 Cal.4th at p. 1103.) Moreover, given the lenient sentence
issued by the sentencing court, we cannot adopt defendant’s
contention that this information would have led it to any other
judgment.
       Defendant further asserts that the trial court’s order is
“inherently flawed” because it inferred that his “failure to detail
[his prior counsel’s] misconduct in his first declaration rendered
his second declaration incredible.” Defendant is asking us to
reassess his credibility, something we cannot and will not do.
(People v. Lee (2011) 51 Cal.4th 620, 632; People v. Martinez
(2013) 57 Cal.4th 555, 565 [to establish prejudice, “the defendant
must provide a declaration or testimony stating that he or she
would not have entered into the plea bargain if properly advised.
It is up to the trial court to determine whether the defendant’s
assertion is credible, and the court may reject an assertion that is
not supported by an explanation or other corroborating
circumstances”].) Based upon the ample evidence of defendant’s
repeated lies and the lack of corroborating circumstances, the




                                  8
trial court acted well within its discretion when it determined
that defendant was not credible.
       Moreover, coram nobis relief is not available 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 (1957) 153 Cal.App.2d 806, 811.)
In other words, coram nobis relief is unavailable “to vacate a plea
of guilty solely on the ground that it was induced by
misstatements of counsel.” (People v. Gallardo (2000) 77
Cal.App.4th 971, 982.) Here, there is no evidence or allegation
that the prosecutor or the trial court was a party to any alleged
fraudulent misrepresentation or misstatement by plea counsel.
The prosecutor’s “silence at sentencing” and the trial court’s
statement that it would “all work out” are not corroboration of
any alleged misrepresentation regarding the adverse effect that
defendant’s convictions would have on his businesses. For that
reason, defendant’s reliance upon People v. Gilbert (1944) 25
Cal.2d 422, 443 is misplaced.
       It follows that no evidentiary hearing was required. Based
upon the evidence and argument presented, the trial court was
able to assess the witnesses’ credibility and determine that
defendant was not credible and therefore not entitled to the
requested relief. (People v. Vaughn (1966) 243 Cal.App.2d 730,
733 [if it is readily apparent from the petition and the court’s own
records that a petition for coram nobis is without merit, it should
be summarily denied; only when “facts have been alleged with
sufficient particularity [citation] to show that there are
substantial legal or factual issues on which the availability of the
writ turns [must the trial court] set the matter for hearing”].)




                                 9
       People v. Wadkins (1965) 63 Cal.2d 110 does not compel a
different result. In that case, the defendant, while represented
by counsel, pled guilty to forgery of an endorsement and was
sentenced to prison. (Id. at p. 111.) He later filed a petition for
coram nobis, alleging (1) he entered into the guilty plea upon the
promise that he would receive probation, (2) the promise of
probation was made by three separate law enforcement officers,
(3) the officers promised probation in return for his agreement to
assist them in solving a bank robbery, and (4) he provided the
officers with the weapons used in that robbery. (Id. at pp. 111–
112.) The trial court summarily denied the petition, and the
Court of Appeal affirmed. (Id. at p. 112.)
       Our California Supreme Court reversed. Noting that
“there is ample authority for the proposition that one who has
pleaded guilty in reliance on the unkept promises of reliable
public officials should be allowed to withdraw that plea,” the
Supreme Court ordered an evidentiary hearing to assess the
credibility of the defendant’s claims. (People v. Wadkins, supra,
63 Cal.2d at pp. 113–114; see also People v. Odlum (1949) 91
Cal.App.2d 761, 772 [where an attorney makes a
misrepresentation regarding an alleged plea bargain and that
representation is seemingly corroborated by acts and statements
by the trial court and district attorney, an evidentiary hearing
was appropriate].)
       As set forth above, there is no evidence that defendant
entered into the open plea pursuant to a promise by a reliable
public official. Neither the district attorney nor the trial court
was a party to defendant’s open plea. Thus, no evidentiary
hearing to determine defendant’s credibility alone is required.




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      It follows that we reject defendant’s contention that “he
was clearly entitled to coram nobis relief.” For the reasons set
forth above, the trial court acted well within its discretion when
it denied defendant’s petition for coram nobis relief.
                          DISPOSITION
      The order is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                       _______________________, J.
                                       ASHMANN-GERST


We concur:



________________________, P. J.
LUI



________________________, J.
CHAVEZ




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