Filed 1/4/16 P. v. Summers CA2/2
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B263684

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA260968)
         v.

HIRAM ELIXER SUMMERS,

         Defendant and Appellant.



THE COURT:*
         Defendant Hiram Elixer Summers appeals from the order denying his petition for
a writ of error coram nobis seeking to vacate the judgment entered following a jury trial
in which he was convicted of first degree murder while personally and intentionally
discharging a firearm, causing death (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d))1
and for which he was sentenced to prison for 25 years to life for the murder, plus an
additional 25 years to life for the firearm enhancement.2



*        BOREN, P.J.                           ASHMANN-GERST, J.                               CHAVEZ, J.
1        All further section references are to the Penal Code.
2      The trial court also denied his petition for a writ of habeas corpus. He does not
challenge that ruling.
       Defendant’s appointed appellate counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende), raising no issues. On November 18, 2015, we notified
defendant of his counsel’s brief and gave him leave to file his own brief or letter stating
any ground or argument he wished to have considered. On December 14, 2015,
defendant submitted a brief in which he contends he was incompetent to stand trial in
view of his mental illness and the trial court erred in denying his petition as untimely
based on its unsupportable finding that defendant, who represented himself at trial, must
have known if he suffered from mental illness, which illness also should have been
recognized by the other trial participants, but defendant failed to raise such claim at the
time of trial. Further, defendant asserts he has valid grounds to file a writ of error coram
nobis. He contends the fact he was mentally incompetent to stand trial was unknown at
the time of trial; the petition sets forth sufficient evidence of such mental incompetence to
warrant the writ and a hearing; and defendant has acted diligently in filing his petition.
       Initially, we conclude the petition for writ of error coram nobis before the trial
court was procedurally improper, because we affirmed the judgment on appeal in
B176847.3 We deem this purported appeal to be instead a petition for a writ of error
coram vobis, which is essentially identical to such a writ of error coram nobis, except it is
addressed to the reviewing court. (People v. Brady (1973) 30 Cal.App.3d, 81, 83; see
also § 1265, subd. (a).) We shall deny the petition.
       A writ of error coram nobis, or in this case, coram vobis, is available “‘[w]here the
defendant was insane at the time of trial and this fact was unknown to court and counsel
[citations].’” (People v. Kim (2009) 45 Cal.4th 1078, 1094.) To prevail on his petition,
however, it is incumbent on defendant to establish newly discovered facts supporting his



3      On April 3, 2007, in B197057, we denied defendant’s petition for a writ of habeas
corpus. The state Supreme Court denied his petition for review and his habeas corpus
petition. (People v. Summers (2006) 2006 Cal.Lexis 2305; People v. Summers (2008)
2008 Cal.Lexis 10268.) His petition for federal habeas corpus relief also was denied.
(Summers v. Malfi (2010) 2010 U.S.Dist. Lexis 77758.)


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claim of mental incompetence at the time of trial which could not have been secured with
the exercise of due diligence prior to the filing of his petition. (Id. at pp. 1092-1093.)
       Defendant has failed to meet his burden. On July 7, 2004, he was convicted, and
on July 15, 2004, he was sentenced. On August 4, 2004, defendant had an interview with
the California Department of Corrections. The report reflected “[t]here are indications
that [defendant] is experiencing a major depression” and “[b]ased on this initial brief
screening, there is an indication that [he] is suffering from a mental illness. Referral to a
mental health professional is indicated.” The report cautioned these “diagnostic
impressions . . . should be considered as hypotheses which should be confirmed or ruled
out following examination by qualified personnel.”
       In his petition, defendant alleges “[d]ue to the psychosis of [his] chronic paranoid
schizophrenia, [he] was mentally incompetent to represent himself in the trial court
matters,” and he “had a meritorious and good defense to the charge of 1st degree murder,
but [he] was unable to discern or present it in the trial.” He further alleges “chronic-
psychosis is not ‘on-set’ psychosis, but rather a pre-existing major mental illness that pre-
existed the date of August 4, 2004, to wit, it existed on the dates of May 3, 2004, July 1,
2004, July 7, 2004, July 15, 2004, and during all of the trial court proceedings in [this
case].” In his affidavit, defendant states “[d]ue to the on-going psychosis, it has been
extremely difficult-to-impossible for me to separate reality and fantasy, and engaging in
any legal hypothesis or reasoning has been impossible, circa August 2004 through the
current date, notwithstanding . . . treatment, including medication.”4
       Our independent review of the record fails to reveal any evidentiary support for
defendant’s claim he was mentally incompetent to stand trial in this case. As discussed
above, the August 4, 2004, report merely indicated defendant might have a mental illness
and recommended referral to a mental health professional for further evaluation. On

4       Defendant explained he first became aware of the matters set forth in his petition
after February 2015, at which time he approached Robert Charles Jordan, Jr., a fellow
inmate and patient, who explained the issues laid out in the petition, which he prepared
for defendant.


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August 18, 2004, a mental health clinician diagnosed defendant with “schizoaffective
disorder,” which was not defined, and recommended psychiatric evaluation. A notation
of “sleeplessness” also was made. A report regarding interventions on October 28, 2004,
indicated defendant reported “racing thoughts” and contained a notation of “major
depressive symptoms.” An evaluation report dated May 13, 2008, concluded defendant
met the inclusion criteria for the “Mental Health Services Delivery System” and indicated
psychotropic medication was prescribed.
         In the progress note dated July 2, 2010, almost six years after the initial August 4,
2004, report, a staff psychiatrist indicated defendant had a medical history of “significant
psychosis & depression, now doing tolerably well.” The doctor’s diagnosis was “Chronic
Paraonoid Schizophrenia.” This is the first indication in the record of such a diagnosis.
The record does not reflect at what point in time defendant developed such condition, and
there is no medical evidence regarding if, and if so, how, this condition would impact
defendant’s ability to comprehend the charges against him and/or defend against them.
Defendant therefore simply speculates he suffered from chronic paranoid schizophrenia
prior to and during trial and that this condition rendered him mentally incompetent to
stand trial. Speculation, however, is not evidence, nor are speculative inferences.
(People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Kraft (2000) 23 Cal.4th 978,
1035.)
         We have examined the entire record, including defendant’s brief, and we are
satisfied that defendant’s attorney has fully complied with his responsibilities and that no
arguable issues exist. (Wende, supra, 25 Cal.3d 436, 441.)
         The petition for a writ of error coram vobis is denied.




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