Filed 5/19/16 P. v. Stec CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B262357

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. GA088950)
         v.

PAUL A. STEC,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Jared D.
Moses, Judge. Affirmed.
         Margolin & Lawrence, Allison B. Margolin, J. Raza Lawrence, Patrick T. Brooks,
for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Steven D. Matthews, Supervising Deputy
Attorney General, for Plaintiff and Respondent.
                                     _____________________________
       Defendant and appellant Paul Antonio Stec appeals from a December 8, 2014
order denying his petition for writ of error coram nobis. Defendant contends the court
erred in denying his petition, which sought to withdraw a plea of no contest on the
grounds that his plea was premised on a mistake of fact regarding his eligibility for
deferred entry of judgment. We affirm the trial court’s order because the mistake
defendant relies on was a mistake of law, not a mistake of fact.


                   FACTUAL AND PROCEDURAL BACKGROUND


       On February 28, 2014, after being advised of his rights and the consequences of a
plea, defendant pleaded no contest1 to the following counts: (1) felony possession of a
controlled substance (Health & Saf. Code, § 11350, subd. (a)); (2) carrying a concealed
firearm in a vehicle, a misdemeanor (Pen. Code, § 25400, subd. (a)(1)); 2 (3) carrying a
loaded firearm in a vehicle in a city, a misdemeanor (§ 25850, subd. (a)); and (4) driving
when privilege suspended or revoked, a misdemeanor (Veh. Code, §14601.1, subd. (a)).
The court convicted defendant of all four counts, suspended imposition of sentence, and
placed appellant on three years of formal probation, including ninety days of community
service. About six months later, the court revoked defendant’s probation and issued a no-
bail bench warrant. Defendant appeared with private counsel at a hearing on September
22, 2014, and the court set the matter for a probation violation hearing. Defendant had
two open felony cases in Burbank.
       Defendant filed a motion to set aside the judgment and withdraw his plea on a




       1At two prior hearings, the court denied a motion to dismiss pursuant to Penal
Code section 995 and a motion to suppress evidence under Penal Code section 1538.5.
       2   All statutory references are to the Penal Code unless otherwise indicated.

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petition for writ of error coram nobis.3 The court denied defendant’s petition after a
hearing on December 8, 2014. Defendant filed a timely appeal.


                                       DISCUSSION


       We review a denial of a petition for writ of error coram nobis under the abuse of
discretion standard. (People v. Kim (2009) 45 Cal.4th 1078, 1095 (Kim).) A petitioner
seeking coram nobis relief bears a heavy burden in overcoming the presumption of the
regularity of the judgment. (Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 799
(Mendez).) “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.)
       In seeking a writ of error coram nobis from the trial court, a defendant must
demonstrate three things: (1) through no fault or negligence of his own, some fact was
not presented at the trial which, if presented, would have prevented the rendition of
judgment; (2) the fact does not go to the merits of the issues tried; and (3) the fact was
not known and could not, in the exercise of due diligence, have been discovered
substantially earlier than the time of the petition. (Kim, supra, 45 Cal.4th at p. 1093;
People v. Shipman (1965) 62 Cal.2d 226, 230.) “[T]he writ of error coram nobis is
unavailable when a litigant has some other remedy at law. ‘A writ of [error] coram nobis
is not available where the defendant had a remedy by (a) appeal or (b) motion for a new
trial and failed to avail himself of such remedies.’ (People v. Blalock (1960) 53 Cal.2d



       3 Defendant also filed a petition under Proposition 47, the Safe Neighborhoods
and Schools Act (§ 1170.18), to reduce his felony drug possession conviction to a
misdemeanor. On November 13, 2014, the court reduced defendant’s felony conviction
to a misdemeanor, defendant admitted to the probation violation, and the court sentenced
defendant to 365 days in jail, with 121 days of custody credits.

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798, 801; see People v. Howard (1965) 62 Cal.2d 237, 238 [claims could have been
raised on direct appeal]; People v. Adamson [(1949)] 34 Cal.2d [320,] 327 [claims should
have been raised in a petition for a writ of habeas corpus].)” (Kim, supra, 45 Cal.4th at
1093–1094.) Examples of when a coram nobis writ has issued include “[w]here the
defendant was insane at the time of trial and this fact was unknown to court and counsel
[citations]. Where the defendant was an infant and appeared by attorney without the
appointment of a guardian or guardian ad litem [citations]. . . . Where the defendant was
dead at the time judgment was rendered [citations]. . . .’ (People v. Reid [(1924)] 195
Cal. [249,] 258–259.)” (Kim, supra, 45 Cal.4th at p. 1094.)
       Defendant contends his plea and conviction were based on a “mistake of fact and
ignorance of the law through no fault of his own” because no one—not the trial judge,
not the prosecutor, not his own defense counsel—informed him he was eligible for
deferred entry of judgment under section 1000, subdivision (a), even though he met the
statutory criteria for eligibility.
       Defendant argues the trial court should have granted his petition for writ of error
coram nobis because he had demonstrated he met the criteria for a motion to vacate a
guilty plea under section 1018. Under that section, defendant could withdraw a guilty
plea for “good cause” up to six months after his conviction. To demonstrate good cause,
a defendant must show by clear and convincing evidence that he “was operating under
mistake, ignorance, or any other factor overcoming the exercise of his or her free
judgment, including inadvertence, fraud, or duress.” (People v. Breslin (2012) 205
Cal.App.4th 1409, 1416.) Although a trial court may consider a non-statutory motion to
vacate as a petition for writ of error coram nobis (People v. Castaneda (1995) 37
Cal.App.4th 1612, 1618), the criteria for granting relief under section 1018 do not replace
the requirements for coram nobis relief, and defendant has not met those requirements.
       The court’s decision to deny defendant’s petition was warranted for two reasons.
First, defendant did not demonstrate “that facts existed at the time of his plea that satisfy
the strict requirements for this extraordinary type of collateral relief from a final
judgment.” (Kim, supra, 45 Cal.4th at p. 1101–1102.) He did not, and cannot, show

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“‘“that 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.”’ [Citation.]” (Kim, supra, 45 Cal.4th at
p. 1101-1102, italics added.) Any mistake regarding defendant’s eligibility for deferred
entry of judgment was a mistake of law, not a mistake of fact. In People v. Ibanez (1999)
76 Cal.App.4th 537, a defendant was not entitled to coram nobis relief where he entered a
guilty plea without being advised of the possibility of civil commitment under Welfare
and Institutions Code, section 6600 et seq. (the Sexually Violent Predators Act). But
coram nobis relief could not be granted because “‘[t]he writ lies to correct only errors of
fact as distinguished from errors of law. [Citation.]’ [Citation.]” (People v. Ibanez,
supra, 76 Cal.App.4th. at p. 545.) The court reasoned that defendant’s ignorance of the
potential consequences of his plea was an error of law, not a mistake of fact. (Id. at
p. 547.) In the case before us, defendant relies upon an error of law to seek coram nobis
relief. The facts were known to all, but the court, the prosecutor, and the defendant were
mistaken about the legal effect of those known facts. Statutory or writ relief is “‘not
available where a defendant voluntarily and with knowledge of the facts pleaded guilty or
admitted alleged prior convictions because of ignorance or mistake as to the legal effect
of those facts.’ [Citation.]” (Kim, supra, 45 Cal.4th at p. 1093.)
       Second, defendant is barred from seeking relief due to his failure to pursue
available legal remedies. Defendant did not appeal his conviction or seek to withdraw his
plea within the time frame set forth in section 1018. The statute governing deferred entry
of judgment establishes appeal as the “sole remedy” for a defendant who is found to be
ineligible. (§ 1000, subd. (b); Butler v. Superior Court (1998) 63 Cal.App.4th 64, 69.)
Coram nobis is not a substitute for a failure to seek alternate forms of relief. (Kim, supra,
45 Cal.4th at pp. 1093–1094.) The petition for writ of error coram nobis was properly
denied.




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                                    DISPOSITION


      The order denying defendant’s petition for writ of error coram nobis is affirmed.




             KRIEGLER, Acting P. J.


We concur:



             BAKER, J.



             RAPHAEL, J.




         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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