Filed 10/25/17; pub. order 11/7/17 (see end of opn.)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                               DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                       A148330
v.
ROBERT JOSEPH FOREST,                                  (Mendocino County
                                                       Super. Ct. No. SCUK-CRCR1027413)
         Defendant and Appellant.


                                             INTRODUCTION
         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.



         1
             Unless otherwise indicated, all further statutory citations are to the Penal Code.
           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




       2
         Our summary of the historical and procedural facts is drawn verbatim from
Division Four’s unpublished opinion in People v. Robert Joseph Forest (Aug. 3, 2010,
A124144 (Forest I)).
       Although the court below took judicial notice of the entire preliminary hearing
transcript, it was not included in the record on appeal. Citation of Division Four’s prior
unpublished opinion is permitted by California Rules of Court, rule 8.1115(b) to explain
the factual background of the case and as law of the case. It is not cited as legal
authority. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012)
206 Cal.App.4th 897, 907, fn. 10; The Utility Reform Network v. Public Utilities Com.
(2014) 223 Cal.App.4th 945, 951, fn. 3.)

                                             2
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

                                              3
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.) 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.




       3
       Forest v. Lintott (Super. Ct. Mendocino County, 2016, No. SCUK CVPO
11-58996); Forest v. City of Fort Bragg (N.D.Cal. July 13, 2011, No. CV 09-05970-NJV)
2011 U.S. Dist. LEXIS 160233; Forest v. City of Fort Bragg (9th Cir. 2013)
520 Fed.Appx. 616).

                                             4
                                   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

       4
           Section 851.8 provides in relevant part:
        (b) . . . A finding of factual innocence and an order for the sealing and destruction
of records pursuant to this section shall not be made unless the court finds that no
reasonable cause exists to believe that the arrestee committed the offense for which the
arrest was made. In any court hearing to determine the factual innocence of a party, the
initial burden of proof shall rest with the petitioner to show that no reasonable cause
exists to believe that the arrestee committed the offense for which the arrest was made. If
the court finds that this showing of no reasonable cause has been made by the petitioner,
then the burden of proof shall shift to the respondent to show that a reasonable cause
exists to believe that the petitioner committed the offense for which the arrest was made.
If the court finds the arrestee to be factually innocent of the charges for which the arrest
was made, then the court shall order the law enforcement agency having jurisdiction over
the offense, the Department of Justice, and any law enforcement agency which arrested
the petitioner or participated in the arrest of the petitioner for an offense for which the
petitioner has been found factually innocent under this section to seal their records of the
arrest . . . .
        “(c) In any case where a person has been arrested, and an accusatory pleading has
been filed, but where no conviction has occurred, the defendant may, at any time after
dismissal of the action, petition the court that dismissed the action for a finding that the
defendant is factually innocent of the charges for which the arrest was made. A copy of
the petition shall be served on the prosecuting attorney of the county or city in which the
accusatory pleading was filed at least 10 days prior to the hearing on the petitioner’s
factual innocence. The prosecuting attorney may present evidence to the court at the
hearing. The hearing shall be conducted as provided in subdivision (b). If the court finds
the petitioner to be factually innocent of the charges for which the arrest was made, then
the court shall grant the relief as provided in subdivision (b).
        “(d) In any case where a person has been arrested and an accusatory pleading has
been filed, but where no conviction has occurred, the court may, with the concurrence of
the prosecuting attorney, grant the relief provided in subdivision (b) at the time of the
dismissal of the accusatory pleading.”

                                             5
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) (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 (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; People v. Mort (1963) 214 Cal.App.2d 596, 599–600; People v. Allenthorp
(1966) 64 Cal.2d 679, 680–682 (Allenthorp); People v. Malveaux (1996) 50 Cal.App.4th
1425, 1429–1430, 1434–1436.)
       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

                                              6
v. Rosenfeld (2017) 3 Cal.5th 124, 134; Allenthorp, supra, 64 Cal.2d at p. 682), 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.) 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 (Brady); People v. Kennedy (1953)
116 Cal.App.2d 273, 275–277 (Kennedy).) “The basis for the issuance of a writ of error
coram nobis is substantially the same as for a writ of error coram vobis” (In re Lindley
(1947) 29 Cal.2d 709, 726) (Lindley), except that coram vobis is addressed to the
appellate court that affirmed the judgment, and coram nobis is addressed to the trial court
that issued the judgment. (People v. Welch (1964) 61 Cal.2d 786, 790; Betz v. Pankow
(1993) 16 Cal.App.4th 931, 941, fn. 5 (Betz); Appeals and Writs in Criminal Cases
(Cont.Ed.Bar 3d ed. 2017) §11.1, p. 11-2).) To conserve scarce judicial resources, we
elect to treat the appeal as a petition for writ of error coram vobis in this court and the
record in the inoperative appeal as the record in this original proceeding. (Cf. People v.
Vaitonis (1962) 200 Cal.App.2d 156, 163 [treating record on inoperative appeal as an
original petition for writ of habeas corpus].)5

       5
         We take judicial notice of the record on appeal, which includes all the matters
defendant asked the trial court to judicially notice. On our own motion, we also take
judicial notice of the opinions only in Forest v. City of Fort Bragg, supra, 2011 Dist.
LEXIS 160233 and Forest v. City of Fort Bragg, supra, 520 Fed.Appx. 616, insofar as
they are relevant to the history of defendant’s attempts to invalidate his arrest. The trial
court took judicial notice of the record of the proceedings in those cases, but those
records are not part of the record on appeal before us and we therefore do not take
judicial notice of them.
       For that reason, we also do not take judicial notice of the preliminary hearing in
People v. Forest (Super. Ct. Mendocino County, 2006, No. MCTM-CRCR-06-74772-
02). A petition for writ of error coram nobis is technically a civil remedy. (People v.
Fowler (1959) 175 Cal.App.2d 808, 810, disapproved on another point in People v.
Shipman (1965) 62 Cal.2d 226, 231 (Shipman).) Whether viewed as civil or criminal,
however, as the purported appellant, it was defendant’s burden to ensure an adequate
record for the court’s review. (See Cal. Rules of Court, rules 8.120 [civil appeals]: 8.320,
8.324 [criminal appeals]; Ct.App., First Dist., Local Rules, rule 7.) Although the trial

                                               7
       This has implications for our standard of review. We do not review the merits of
the superior court’s order denying the coram nobis petition for abuse of discretion.
(People v. McElwee (2005) 128 Cal.App.4th 1348, 1352; People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 192; People v. Ibanez (1999) 76 Cal.App.4th 537,
544.) Instead, we “review the lower court’s judgment” (6 Witkin & Epstein, Cal. Crim.
Law (4th ed. 2012) Criminal Writs, § 120 [Coram Vobis in Appellate Court], pp. 739–
740), here the superior court’s order denying the petition for factual innocence. The writ
of error coram vobis permits the appellate court to command a trial court to reconsider its
decision in light of evidence discovered during the pendency of an appeal (Betz, supra,
16 Cal.App.4th at p. 941) or after the appeal is over. (§ 1265; 6 Witkin, Cal. Crim. Law
Criminal Writs (4th ed. 2012) § 191 [Revival of Common Law Writ], pp. 236–237.)
Those few Courts of Appeal which have either entertained original writs of coram vobis
or repurposed inoperative appeals as original writs of coram vobis do not identify the
standard of review; however, it appears an appellate court independently evaluates
whether the newly discovered fact presented in the petition warrants relief. (Welch,
supra, 61 Cal.2d at pp. 794–795; Brady, supra, 30 Cal.App.3d at p. 86; Kennedy, supra,
116 Cal.App.2d at p. 274.) In our view, this is a mixed question of law and fact which
we review de novo, much like the question whether a habeas corpus petitioner has proven


court took judicial notice of the preliminary hearing transcript, inexplicably it was not
included in the record on appeal. Since the gravamen of defendant’s complaint is that he
is factually innocent and should never have been arrested or held to answer in the first
place, the transcript of the preliminary hearing is critical to review of his claim.
        Inasmuch as the preliminary hearing transcript is not a part of the record on
appeal, we would not have any basis for assessing the facts on which the judgment was
rendered, but for this court’s prior opinion in Forest I, supra, A124144, including the
court’s detailed recitation of the facts adduced at the preliminary hearing. Since the
court’s prior opinion is law of the case insofar as it found the historical facts, we accept
the recited facts as supported by substantial evidence and will exercise our discretion to
address the merits of the appeal despite the gap in the record. (Krug v. Maschmeier
(2009) 172 Cal.App.4th 796, 799, fn. 1.)

                                             8
by a preponderance of the evidence facts that establish a basis for relief. (In re Lucas
(2004) 33 Cal.4th 682, 694.) As in such proceedings, where the evidentiary record
consists of exhibits attached to the petition, we independently review the record. (In re
Smith (2003) 114 Cal.App.4th 343, 360–361; In re Zepeda (2006) 141 Cal.App.4th
1493,1497.)
The Judgment Under Attack
       By this petition, defendant collaterally attacks the 2008 judgment of the
Mendocino County Superior Court denying his petition for a factual finding of
innocence. Section 851.8 sets forth the standard for such a finding: “A finding of factual
innocence ‘shall not be made unless the court finds that no reasonable cause exists to
believe that the arrestee committed the offense for which the arrest was made.’ (§ 851.8,
subd. (b).)” (People v. Medlin (2009) 178 Cal.App.4th 1092, 1101 (Medlin).) “[T]he
record must exonerate, not merely raise a substantial question as to guilt.” (People v.
Adair (2003) 29 Cal.4th 895, 909 (Adair).)
       “A person petitioning for a finding of factual innocence has the initial burden to
demonstrate the absence of reasonable cause. To meet this burden, the petitioner must
show more than a viable defense to the crime. He or she must establish ‘ “that there was
no reasonable cause to arrest him in the first place.” ’ [Citation.] If this burden is met,
the burden shifts to the prosecution to demonstrate the existence of reasonable cause.”
(Medlin, supra, 178 Cal.App.4th at p. 1102.) Reasonable cause means “ ‘ “that state of
facts as would lead a man of ordinary care and prudence to believe and conscientiously
entertain an honest and strong suspicion that the person is guilty of a crime.” ’ ” (Adair,
supra, 29 Cal.4th at p. 904.) “To be entitled to relief under section 851.8, ‘[t]he arrestee
[or defendant] thus must establish that facts exist which would lead no person of ordinary
care and prudence to believe or conscientiously entertain any honest and strong suspicion
that the person arrested [or acquitted] is guilty of the crimes charged.’ ” (Adair, at
p. 904.) Whether there is “no reasonable cause” to arrest in the first place is an objective

                                              9
question measured by an external standard. (Id. at p. 906; People v. Esmaili (2013)
213 Cal.App.4th 1449, 1460 (Esmaili).) Even a magistrate’s order discharging a
defendant after a preliminary hearing does not establish his or her factual innocence,
because “it still might be the case that another person of ordinary care and prudence
could view the evidence differently and have some suspicion of the defendant’s guilt.”
(Esmaili, at pp. 1460; People v. Bleich (2009) 178 Cal.App.4th 292, 301.) Showing that
one had a “viable substantive defense” is not enough. (Adair, at p. 905; Esmaili, at
p. 1460.) Here, defendant claimed he was factually innocent because he acted in
self-defense. Both the trial court and the appellate court rejected that contention.
       To successfully mount a collateral attack on a judgment by way of petition for a
writ of error coram nobis or coram vobis, the defendant faces a similarly daunting
challenge. “[N]ewly discovered evidence does not justify relief unless it is of such
character as will completely undermine the entire structure of the case upon which the
prosecution was based.” (Lindley, supra, 29 Cal.2d at p. 723.) “[W]hether raised in a
petition for writ of habeas corpus or by coram nobis, newly discovered evidence is a
basis for relief only if it undermines the prosecution’s entire case. It is not sufficient that
the evidence might have weakened the prosecution case or presented a more difficult
question for the judge or jury.” (In re Clark (1993) 5 Cal.4th 750, 766.) “ ‘[A] criminal
judgment may be collaterally attacked on the basis of “newly discovered” evidence only
if the “new” evidence casts fundamental doubt on the accuracy and reliability of the
proceedings. . . . [S]uch evidence, if credited, must undermine the entire prosecution case
and point unerringly to innocence or reduced culpability.’ ” (Ibid., quoting People v.
Gonzalez (1990) 51 Cal.3d 1179, 1246, superseded by statute as stated in People v. Steele
(2004) 32 Cal.4th 682, 691.)
Requirements for Issuance of the Writ
       “The writ of [error] coram nobis is granted only when three requirements are met.
(1) Petitioner must ‘show that some fact existed which, without any fault or negligence

                                              10
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.” (Shipman, supra, 62 Cal.2d at p. 230.) “These
factors set forth in Shipman continue to outline the modern limits of the writ.” (Kim,
supra, 45 Cal.4th at p. 1093.) The granting of a writ of error coram nobis is completely
discretionary. (People v. Evans (1960) 185 Cal.App.2d 331, 333.)
Defendant’s Showing of New Facts
       In a verified petition for writ of error coram nobis, defendant proffers three “newly
discovered” facts: (1) a statement made by former District Attorney Meredith Lintott in
2015, to settle a civil lawsuit filed by defendant against her for defamation; (2) the sworn
deposition of Sergeant Lee, a Fort Bragg police officer, who took defendant’s statement
the day after the altercation; and (3) the stipulation of a current deputy district attorney to
a finding of factual innocence. We assess the merits of the petition de novo, as if it had
been filed in this court in the first instance.
       1. Lintott’s Statement of Retraction
       Meredith Lintott’s retraction stated: “In 2010, during my campaign to be re-
elected District Attorney, I published a political campaign advertisement on the radio
which stated or implied that Mr. Robert Forest had felony charges pending against him,
that he had assaulted an unarmed man with a firearm, and that he had bribed my
opponent to obtain a permit to carry a concealed weapon. Robert Forest did not bribe

                                                  11
anyone. Mr. Forest did not have any criminal charges pending against him and he did not
commit an assault on an unarmed man with a gun. I personally dismissed all of the
criminal charges that were pending against him more than 2 years before my campaign
advertisement was broadcast on the radio. I want to confirm that I made the right
decision when I dismissed the charges that were pending against Mr. Forest. I apologize
for the harm my statements have caused Mr. Forest, his family, and his businesses.
[Signed] Meredith Lintott” (Italics added.) The statement was not sworn under penalty
of perjury and, as noted, was part of the settlement of a lawsuit filed by defendant against
her for defamation.
       Lintott’s statement fails to establish a basis for coram vobis relief for several
reasons. First, it is not a “fact.” Whether or not a set of circumstances amounts to the
commission of an assault with deadly weapon is a legal opinion. “The uniform
conclusion of the decisions is that the function of a writ of error coram nobis is to correct
an error of fact. It never issues to correct an error of law.” (People v. Reid (1924)
195 Cal. 249, 258; accord Kim, supra, 45 Cal.4th at p. 1093 [“ ‘[t]he remedy does not lie
to enable the court to correct errors of law.’ ”].) “[I]t ‘is not intended to authorize any
court to review and revise its opinions.’ ” (People v. Tuthill (1948) 32 Cal.2d 819, 822.)
       People v. Esquibel (1975) 44 Cal.App.3d 591 (Esquibel) is instructive. At the
defendant Esquibel’s criminal trial, the victim testified he thought Esquibel had
deliberately hit him with his pickup truck. (Id. at p. 593.) Defendant was convicted of
assault (§ 245, subd. (b).) (Esquibel, at p. 593.) About two years later, in connection
with a personal injury lawsuit the victim brought against Esquibel, the victim talked to an
eyewitness who told him Esquibel was not looking at the victim when the truck hit him.
(Ibid.) This eyewitness had testified at trial, but no one had asked him which way
defendant was looking when he hit the victim. However, the victim testified at a
deposition that, based on what the eyewitness had told him, he now believed the
defendant’s actions were “ ‘entirely accidental and negligent.’ ” (Id. at p. 594.) Based on

                                              12
the discrepancy, the defendant brought a petition for writ of error coram nobis, which the
trial court granted. The People appealed and Esquibel argued the victim’s change of
opinion is a basis for coram nobis relief. (Ibid.) The Court of Appeal reversed, stating,
among other reasons, that “[t]he allegedly contradictory testimony of [the victim]
involves his opinions, not facts. Forming a new opinion based on a recently learned fact
which could have been brought out at trial is not a basis for relief under coram nobis.”
(Id. at p. 595.)
       The situation here is analogous. In 2008, in opposition to defendant’s petition for
a finding of factual innocence, Ms. Lintott submitted a declaration under penalty of
perjury stating her reasons for dismissing the assault charge against defendant in 2006.
She averred that she “moved to dismiss the case based on insufficient evidence to obtain
a conviction beyond a reasonable doubt.” She also averred that she “believed that an
objective fact finder would find the assault with a firearm by Robert Forest took place if
the standard was by a preponderance of evidence, but that there was not a ‘probability’ of
a conviction if the standard was beyond a reasonable doubt.” (Original italics.) Her
decision to dismiss was based on information the defense presented to her in December
2007 bearing on his asserted defense of self-defense. This information included
“interviews conducted by the defendant’s investigators” and a “handwritten report” by
David E. Paoli, who was the father of David A. Paoli, who was married to the victim’s
mother. David E. Paoli “reported encounters with [the victim] when he was off his
‘meds,’ and believed that [the victim] had threatened David A. with a mawl and ‘some
gang members.’ ” Lintott also averred that her decision to dismiss was “strongly
disapproved of” by the deputy district attorney who had filed the case and who believed
he could win a conviction notwithstanding the anticipated defense evidence. Finally,
Lintott averred defendant’s prosecution was justified by six objective reasons: “(1) the
defendant pulled a firearm on an unarmed victim and held it to his face, (2) the defendant
‘had a hold of’ the victim’s clothing as he held the gun to his head, (3) the victim had no

                                             13
reported record of violence, (4) the defendant at the time was parked in front of a bar
where he had been drinking Tequila, (5) the defendant fled on his motorcycle instead of
waiting for the police, and (6) the defendant has a criminal record (conviction under
Penal Code §§ 12025(b) and 12301[sic]) involving a firearm.”
       Lintott was not a percipient witness to the events. Thus, her unsworn 2015
retraction could only relate to her legal opinion about whether an assault had been
committed, and not a statement of fact. Furthermore, taken in its entirety, the change in
Lintott’s opinion does not appear to be very different from her earlier opinion. Although
she states in her retraction that defendant “did not commit an assault on an unarmed man
with a gun,” she adds that she “want[s] to confirm that [she] made the right decision
when [she] dismissed the charges that were pending against Mr. Forest.” That decision,
as we know from her 2008 declaration, was based on her opinion that she could prove
assault by a preponderance of the evidence but not beyond a reasonable doubt.
       Furthermore, we are not required to accept Lintott’s statement at face value but
may consider the circumstances under which it was made. Her statement is unsworn and
was made in settlement of a lawsuit after protracted litigation, both circumstances which
undermine its probative value. (In re De La Roi (1946) 28 Cal.2d 264, 270; People v.
Knight (1946) 73 Cal.App.2d 532, 534.) In our view, Ms. Lintott’s retraction is not a fact
but an opinion of dubious provenance that could not have prevented the rendition of
judgment.
       2. Deputy Lee’s Deposition
       Defendant alleges that Fort Bragg Police Department Sergeant Brandon Lee’s
sworn deposition testimony presents the “new fact” “that, in his opinion, no probable
cause existed to arrest Mr. Forest for any criminal offense.” He further asserts he did
“not learn that Sgt. Lee was of the opinion that there was no probable cause for his arrest
until Sgt. Lee’s deposition in 2014.” Several documents submitted by defendant in
support of his coram nobis petition bear on Sergeant Lee’s deposition.

                                            14
       On November 9, 2006 at 9:28 a.m., Sergeant Lee interviewed defendant about an
altercation the previous day in Fort Bragg. Sergeant Lee had spoken to defendant the
previous evening by telephone. Defendant confessed to pointing a gun at the victim but
claimed he acted in self-defense. Defendant’s pre-arrest statement to Lee is largely
congruent with the declaration under penalty of perjury defendant submitted to the court
in 2008 on the section 851.8 petition, although there are some differences.6



       6
         During his pre-arrest statement to Lee, defendant claimed he was just leaving the
Headlands Café, where he had eaten a bagel and cream cheese, when the victim grabbed
him by the jacket and demanded a cigarette. Defendant backed away but the victim
followed him and verbally threatened to “fuck [him] up,” and said he was “some kind of
gang banger from Frisco.” Defendant continued walking to his motorcycle. A “kid on a
bike” rode by and hollered his name. Defendant thought he recognized the kid and asked
him if the victim was his friend. He told the kid to get the victim away from him, but the
kid did not respond. The victim was still trailing him. At this point, defendant began to
think, based on what the victim had said earlier about fucking him up and being a
gangbanger from Frisco, that “maybe he’s armed.” The victim was “coming [on]
aggressively.” When the victim “closed the distance where he could actually do me
harm” and “his right hand went behind his back,” defendant made a “snap decision” and
“produced a weapon” from his jacket pocket. Later, defendant clarified the victim was
close enough to hit defendant when defendant produced the weapon.
        Lee said: “Right. OK, so you produced this firearm—it was loaded, . . . and you
pointed it at him.” Defendant responded: “Under the circumstances, I felt it was the
safest thing—the only thing I could do to ensure my safety and avoid bloodshed.” The
victim did not produce a weapon. “[H]e backed right off” off but kept “yelling that he
was going to fuck me up.” Defendant yelled back, “[T]his isn’t over—you’re going to
hear from—you guys. . . . [¶] . . . [¶] I’ll carry that out.” Defendant drove straight to his
home to get his car because he had to pick up his daughter from a friend’s house in
Mendocino.
        When Lee asked why defendant had parked his motorcycle so far away from the
Headlands Café, defendant admitted he had been at the Tip Top first, where he had a
tequila and water. “Lots of water . . . . Here’s how I don’t fool with motorcycles or
weapons when I am under the influence. [¶] . . . [¶] I go into the Tip-Top. Sometimes,
they know I have water and I sit there long enough to be quite sober before I ever leave.
So that’s what I was doing. [¶] . . . [¶] I sat there for a couple of hours.” He went to get
his gun from his saddlebag on his motorcycle, “put [his] piece in here” and then went to
the Headlands Café. He had never seen the victim before.

                                             15
       It is clear from Sergeant Lee’s comments that he was sympathetic to defendant
and believed defendant was the actual victim of a crime. Lee did not testify at the
preliminary hearing. “Defendant moved to dismiss the information pursuant to section
995, contending that the magistrate erred in excluding the testimony of Sergeant Brandon


        Lee informed defendant that an independent witness had seen him chasing the
victim down the street with his gun drawn. Defendant said, “That’s crap,” but then
admitted what the witness “might have seen is when I drew my weapon he was within
the—he had the ability to hurt me at that point. [¶] . . . [¶] I made contact . . . with this
hand, pushed him that way and he kept moving, you know, and I might have taken a step
or two, but that was it.”
        Defendant told Lee he “would like to file a complaint, so that this kid gets the
message and you just don’t grab people or make demands on them on the street and
follow them and threaten them and do all that kind of stuff. [¶] . . . [¶] To me, that’s a
crime. Am I wrong about that?” Lee responded: “That’s not incorrect. No, you’re
right.”
        Lee asked defendant why, if he felt “so threatened and so compelled,” he did not
come directly to law enforcement. Defendant said his daughter was everything to him, it
was his habit to be responsible, and “habit probably overrode my better judgment”
because he could have made other arrangements. Also, he was “pretty shook up” and
“wanted to get out of the area anyway.”
        At this point, Lee stated that, as he had explained the previous night on the phone,
“as a carrier of a concealed weapons permit,” defendant had a duty to assist law
enforcement and inform them that he had drawn his firearm during an altercation, “so
that we don’t just think there is some vigilante out there that, that you know, got into it
with some guy on the street and pulled a gun on him.” Lee reminded defendant that by
“working alongside the law enforcement as far as keeping us, you know, abreast of your
activity, you know, because the average citizen doesn’t know, you don’t have the same
capacity . . . [¶] . . . [¶] . . . that an officer has, you know. . . . [Y]ou don’t have a badge to
display, you know, they don’t know who you are, that you have a right to be, you know,
carrying a firearm. You understand?” Defendant said he did, adding he did consider
making a citizen’s arrest on this kid, but he did not know if the laws had changed.
        So far as the exhibit shows, Lee concluded the interview with, “OK. Alright.”
However, it is not clear whether the actual interview ended here, or whether this is the
end of the defense excerpt from the interview only, since the exhibit appears from its
footer to be a defense-created document and not a copy of the original interview
transcript.
        In his declaration, defendant stated that he got his bagel and cream cheese to go,
and that he had two tequila drinks, the second one with water.

                                                16
Lee regarding statements defendant made to Lee.” (Forest I, supra, A124144, at p. *2.)
The motion was denied. (Ibid.)
       The defense team interviewed Sergeant Lee on January 8, 2008, about his previous
encounters with the victim; the report of the interview was submitted to the court on the
section 851.8 motion.
       In his written opposition to the motion, prosecutor Tim Stoen outlined the
information the prosecution team had available to it prior to the preliminary hearing. It is
clear that Lee was not one of the investigating officers and he did not interview any of the
percipient witnesses.7 But the opposition states that “[o]n or about December 19, 2006,
the Fort Bragg prosecutor became aware that Sgt. Lee was accusing Lt. Higdon of
changing Lee’s Supplement report as to Lee’s interview of Forest. In order to make sure
that Mr. Forest was being treated fairly, said prosecutor requested DA Investigator Robert
Simerson to conduct his own interview of the critical third-party witness in this case,
Jacob Long. Investigator Simerson interviewed Jacob . . . .” No more information is
available to us because the next page of the opposition memorandum is missing.8
       On October 14, 2014, Sergeant Lee was deposed in connection with defendant’s
lawsuit against Lintott. Defendant provides selective, nonconsecutive excerpts from the
deposition. As relevant here, Lee testified he would not describe himself as a personal
friend of defendant’s, but he knew defendant as a business owner, and the two had
discussed defendant’s “nice motorcycle” and having been in the Marine Corps.




       7
         Defendant alleges in his reply brief that Sergeant Lee was the “lead investigating
officer of the 2006 incident” but nothing in the record supports that assertion. In fact,
Sergeant Lee testified at his deposition that Officer Oscar Lopez was “the primary officer
that handled the case.”
       8
         Lieutenant Higdon’s initial report, without investigator Simerson’s notes, was
attached to the prosecution’s original opposition but is not part of the copy reproduced for
the appellate record.

                                            17
       Lee testified he first became aware of the incident between defendant and the
victim on November 8, 2006 when “[i]t was explained to me by Officer Lopez and some
of the other officers on duty that day that were involved or had knowledge of the matter.”
Defendant’s wife called him to express her concern. Lee, in turn, called defendant. At
that time, a BOLO had been issued for defendant’s arrest. After speaking with defendant,
Lee contacted Mendocino County Sheriff’s Office dispatch and requested that the BOLO
be “retracted” and that defendant not be arrested at that time. He did so because “no one
[except him] had spoken to Mr. Forest to actually get his side of the story to find out what
exactly happened” and, in his estimation, “[m]any of the statements, the witness
statements that I had heard third hand at that point were not supportive of an actual
assault with a deadly weapon occurring.”
       Lee stated in “prior testimony” that he recorded his interview with defendant on
the morning of November 9, 2006. Lee testified a transcript shown to him by counsel
accurately reflected the interview. Lieutenant Higdon interrupted the interview and asked
to speak with Lee. Lee went to Higdon’s office, where Higdon asked Lee what was
taking so long. Lee explained to Higdon that “Mr. Forest was giving me . . . a statement
that was much different than the story that had been explained the previous night as far as
the totality of the events. And Lieutenant Higdon had told me to get it done and move on
and let’s get this guy in custody.” Higdon ordered Lee to arrest defendant, stating
something to the effect of, “This is a direct order[;] do you fucking understand a direct
order?”9
       Lee went back to defendant and “explained to him the situation. [¶] . . . [¶] I told
Mr. Forest that I was being directed by my commanding officer that I was to place him
under arrest and charge him with assault with a deadly weapon. And I think I explained
to him twice that it was not my decision and that I was being ordered to do so.”

       9
        Lee testified he later learned that “at some point in the distant past Mr. Higdon
and Mr. Forest both worked for the Fort Bragg Police Department.”

                                             18
Defendant asked who was making the decision and Lee “told him it was Lieutenant Floyd
Higdon.” At the point in time that Lieutenant Higdon ordered him to arrest defendant for
a felony violation of section 245, assault with a firearm, Lee “did not” believe there was
probable cause for that arrest, and he “would not have” arrested him for that offense if he
had not been ordered to do so by Lieutenant Higdon. Asked if at that point in time, in his
opinion, there was probable cause to believe that Mr. Forest had committed any crime,
Lee responded: “I had reasonable suspicion to believe that Mr. Forest may have been
guilty of brandishing a firearm, but based on the statement that he provided me that
morning I was not convinced that even the 417 charge was applicable at that point.”
       After many more words were exchanged between Lee and Higdon about
defendant, and defendant was not allowed to post bail from Fort Bragg, Lee got ready to
go home. But before he went, he told defendant: “Whatever you do at this point, your
rights have been violated, is up to you. [¶] . . . [¶] . . . Please, if this goes forward to a
lawsuit or something of that nature, I said please leave me out of it. I said this is none of
my doing. [¶] And [defendant] just kind of smiled and nodded his head. And I said you
guys want to go ahead and violate his freedom and his rights, I said go right ahead. I said
I’m not going to be a part of it. He has a right to bail and if he’s denied that right you can
expect a visit from the A.C.L.U.”
       Lee wrote a supplemental report. He later learned the report had been altered, and
on December 12, 2006, he e-mailed Chief Mark Puthoff to tell him so. The portions of
his report which had been altered included “the description of Sergeant [Mary Ann]
Miller and Lieutenant Don Miller . . . being present and taking Mr. Forest’s concealed
weapons from him.” The two Millers are married to each other; Sergeant Miller worked
for the Fort Bragg Police Department, and Lieutenant Miller worked for the Mendocino
County Sheriff’s Office. Lee was there but did not actually observe all the information
included in the report, such as, “Robert showing two loaded handguns, which Lieutenant
Miller unloaded and returned to Robert.” Contrary to the report, Lee never received a

                                               19
copy of defendant’s concealed weapon permit from Lieutenant Miller or firearm from
Sergeant Miller. Finally, the report deleted the part where he explained “Mr. Forest’s
statement as far as how the confrontation . . . had built between [¶] . . . [¶] the two of
them up to the event that was reported.” Lee admitted that “the D.A. is the final arbiter
on whether the case should proceed or not.” “We have cases rejected all the time.” He
also testified it was “correct” that he “may have a case where the D.A. proceeds and you
don’t think they should.”
       Sergeant Lee’s deposition testimony fails to support coram vobis relief for at least
two reasons, if not more. First, as discussed above, Sergeant Lee’s opinion that there was
no probable cause to arrest defendant for assault with a firearm was just that, an opinion.
As discussed in connection with Lintott’s retraction, coram nobis will not lie to correct
opinions or errors of law.
       Second, the content of Sergeant Lee’s deposition was not new to defendant. Lee
told defendant that he did not believe he committed a crime; that it was not his decision
to arrest him; that he was only arresting him because his commanding officer ordered him
to do so; and that his rights were being violated. Defendant understood early on that Lee
was sympathetic to his cause and a potential witness on his behalf; he evidently tried to
use Lee as the conduit through which he could present his self-defense theory at the
preliminary hearing without actually having to testify at the preliminary hearing.
       Defendant surely could have learned of Lee’s opinions and suspicions when his
representatives actually interviewed Lee for the factual innocence hearing. And, if
defendant did not know before, the prosecution’s opposition to defendant’s section 851.8
petition put him on notice that Lee had complained about changes to his supplemental
report to his superiors and that an investigation had been initiated. At that point,
defendant could have had Lee interviewed again on that topic. Failing to discover all that
Lee had to say at this juncture, and presenting it to the judge who presided at his factual
innocence hearing, is analogous to the failure to ask the eyewitness at trial in Esquibel

                                              20
which way the defendant was looking when he hit the victim with his car. Due diligence
has not been shown.
        Assuming Lee’s report was altered or doctored, it was not used against him in any
proceeding, and even the use of false testimony to secure a conviction is insufficient to
warrant coram nobis relief. (Appeals and Writs in Criminal Cases (Cont.Ed.Bar 3d ed.
2017) § 11.8 [Writs of Error Coram Nobis and Coram Vobis], pp. 11-9 to 11-10, and
cases cited therein.) Nor will coram nobis or vobis lie to challenge the legality of an
arrest, or the failure to prove a crime was committed, or to correct defects in the
preliminary hearing. (Ibid. See generally, Prickett, The Writ of Error Coram Nobis in
California (1990) 30 Santa Clara L.Rev. 1, 25 & fn. 121; 28 & fns. 139, 140; 30 & fn.
156.)
        Finally, in this court’s view, nothing Lee said in his deposition would have
prevented rendition of judgment, even if it had been presented at the time of trial, i.e., at
the factual innocence hearing.
        3. Stipulation to Factual Innocence by Assistant District Attorney Sequeira.
        Defendant argues that the “most important piece of new evidence” is
Mr. Sequeira’s stipulation that defendant is factually innocent of assault. The actual
signed stipulation, if there is one, is not included in the record. Instead, what is included
is the transcript of the Mr. Sequeira’s unsworn statement to the court below on
February 24, 2016, explaining his reasons for the entering into a stipulation.
Mr. Sequeira has been a member of the Mendocino County District Attorney’s Office
since 2011. He was selected to review Mr. Forest’s coram nobis petition because the
district attorney had recused himself, Mr. Sequeira has 31 years of experience, and his
tenure in the office postdates the events at issue and the election contest involving Lintott
and the new district attorney. He had spent “many, many hours” reviewing the case. In
his view, when the prior district attorney issues a statement that defendant did not commit
an assault with a gun on an unarmed man, it “behooves the new district attorney to take a

                                              21
solid look at that and give that great weight.” But what weighed more heavily on him
was “the disturbing evidence” that came forth during Sergeant Lee’s deposition that his
report was altered by someone higher up in the Fort Bragg Police Department, “probably
and most likely” Lieutenant Higdon, who deliberately omitted defendant’s “exculpatory
statements central to the determination of whether there was an assault with a deadly
weapon,” and defendant’s “claim of self-defense and how his confrontation with [the
victim] first start[ed].” “And when the district attorney’s office was notified they were
slow in acting on those reports.” “[G]iven the totality of the circumstances in this case,”
Mr. Sequeira thought “the only fair and right thing to do in a case like this is to stipulate
at this point that Mr. Forest is factually innocent given the tortured history in this case.”
       We fail to see how the opinion of an attorney on the fairness of a process which
culminated in the dismissal of a felony charge prior to trial is a new fact which would
have prevented the rendition of judgment in 2008. It is first and foremost a legal opinion.
Further, it is an opinion which places “great weight” on Lintott’s retraction and on Lee’s
deposition which, as we have already discussed, will not support coram vobis relief. We
also note that section 851.8, subdivision (d) allows the court to grant the petition upon the
concurrence of the district attorney at the time of dismissal, but not otherwise.
       Defendant’s petition for writ of error coram nobis is no more than his latest
attempt to persuade a tribunal to accept, as a matter of law, that he acted in self-defense
when, after consuming two tequilas, he produced a gun from his pocket and pointed it at
an unarmed man who obnoxiously asked him for a cigarette. The victim and an
independent witness testified under oath and subject to cross-examination at the
preliminary hearing. Defendant could have testified to self-defense at this time, but did
not do so. Instead, he tried to present the defense through Sergeant Lee, thereby
insulating himself from cross-examination. The judge who heard the evidence found
probable cause to believe the evidence showed the crime of felony assault with a firearm



                                              22
had been committed. The judge who heard the section 995 motion believed the evidence
showed a felony assault with a firearm had been committed.
       Defendant’s self-defense claim was litigated on the subsequent motion for a
finding of factual innocence. Stephen Soria’s sworn statement to police on December 14,
2006, was presented to the judge who ruled on the petition. Soria was the boy on the
bicycle, an additional eyewitness. He said the “black kid” approached defendant, tugged
on his jacket, and said, “Sir, do you have a cigarette?” Soria did not report hearing the
victim threaten defendant. The victim was following defendant closely when defendant
pulled a gun out of his pocket “and pointed it at the kid.” The court also considered
defendant’s declaration, which presented his self-defense claim in lieu of his testimony,
and the transcript of the sworn testimony given at the preliminary hearing. That judge
found that defendant’s showing failed to establish that “ ‘ “no reasonable cause to arrest
him in the first place.” ’ ” (Medlin, supra, 178 Cal.App.4th at p. 1102; italics added.)
This court affirmed that judge’s decision on appeal. Defendant has also tried to convince
two federal courts that he was falsely arrested, to no avail.
       Defendant now presents this court with the opinions of two attorneys and a police
officer in another failed attempt to persuade us that the evidence he acted in self-defense
points unerringly to his innocence. It does not. One district attorney dismissed the
charge. Had she not done so, a jury might have acquitted defendant. But defendant has
not presented to this court or any other court “new facts” that dispel the probability his
asserted belief he was in imminent danger of suffering bodily harm was unreasonable
under the circumstances, and that he used more force than was reasonably necessary to
defend against the perceived danger. (CALCRIM No. 3470.) On the contrary, a
reasonable person could conscientiously conclude there was probable cause to believe
defendant committed an assault with firearm.
                                      DISPOSITION
       The petition for writ of error coram vobis is denied on the merits.

                                             23
                            _________________________
                            Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.




A148330 People v. Forest
Filed 11/7/17
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FIRST APPELLATE DISTRICT

                                         DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                     A148330
v.
ROBERT JOSEPH FOREST,                                (Mendocino County
                                                     Super. Ct. No. SCUK-CRCR1027413)
         Defendant and Appellant.

THE COURT:†††
         The opinion in the above-entitled matter, filed on October 25, 2017, was not
certified for publication in the Official Reports. After the court’s review of a request
under California Rules of Court, rule 8.1120, and good cause established under California
Rules of Court, rule 8.1105, it is hereby ordered that the opinion should be published in
the Official Reports.




Dated:                                               _______________________________
                                                     DONDERO, J.




         †††
               Before Margulies, Acting P. J., Dondero, J., and Banke, J.
Trial Court: Mendocino County Superior Court

Trial Judge: Hon. John Behnke

Counsel:

       Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, and Matthew Dirkes,
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.




A148330 People v. Forest


                                         2
