1 Filed 9/18/13 P. v. Super. Ct. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Petitioner,

v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; NIGEL IAN RODRIGUEZ, Real Party in Interest. E057425 (Super.Ct.No. RIF150222)
OPINION

ORIGINAL PROCEEDINGS; petition for wr it of mandate. Patrick F. Magers, Judge. (Retired Judge of th e Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted. Paul E. Zellerbach, District Attorney, and Natalie M. Pitre, Deputy District Attorney, for Petitioner. No appearance for respondent.2 Brian Boles, Interim Public Defende r, Kim Bhatia and William A. Meronek, Deputy Public Defenders, fo r Real Party in Interest. Defendant and real party in interest Nigel Ian Rodriguez (defendant) pleaded guilty on May 22, 2009, to po ssession of a controlled substance for sale (Health & Saf. Code, § 11378) and a misdemeanor charge of child endangerment. (Pen. Code, § 273a.) He was placed on probation and ordered to se rve 180 days in jail and make payments on

certain assessed fees. From the record it appears that he complied with all terms. 1 However, on September 19, 2012, defendant filed a “motion to vacate judgment/petition for writ of error coram nobis ” attacking his conviction. In this motion/petition he alleged that his plea had been “conditiona l upon drug test results indicating (1) that the substance tested is a controlled substance, and (2) that the substance is not mere residue.” (This “conditi on” is not reflected in the docket entries.) The motion/petition was supported only by a brief affidavit by counsel, in which she recited the purported “condition” and stated that “[a]fter the rendition of judgment, I received a copy of a laborator y report indicating that (1) th e substance tested is not a

1 The only information about the case in the record co mes from the police report and/or return to the service of a search wa rrant. The warrant appa rently authorized the search of defendant, his vehicle, and a liste d address. When the police arrived, one officer saw defendant run from the kitchen ar ea towards the rear of the house, and the door was then forced. The two plastic baggies eventually sent for testing were found in a tan pouch inside the bathroom vanity, under the sink. Among the other items found were a digital scale, also inside th e pouch; two baggies of marijuan a; a glass smoking pipe with white crystalline residue; and over $2,000 in cash. Interv iewed by police, defendant reportedly admitted using and selling methamphetamine. The house reportedly belonged to defendant’s sister, who was a llowing him to stay there. He had not been employed for several months and was paying her mi nimal rent of $ 50 per month.3 controlled substance, or [ sic ] (2) the substance is mere resi due.” She also declared that neither she nor defendant was aware of the resu lts of the tests prior to the plea, and that the facts could not have been discovered “at any time substantially earlier than the time of this motion . . . .” No further details were provided. Although the declaration itself is silent on the point, the motion (v erified by counsel) asserted th at counsel received the lab report on July 28, 2011. The test results to which defendant ev idently referred are dated April 29, 2009— almost a month prior to the entry of the plea . This laboratory report reflects that the technician received two clear plastic bindles containing a “white crystalline substance,” one weighing 3.6 grams a nd the other 2.1 grams. The first of the two items was analyzed and found to contain no controlled substances , but did contain dimethylsulfone, said by the People to be a “cutting agent.” 2 The second item was not analyzed

. The People opposed the motion/petition on the legal basis that relief in coram nobis was not authorized (see infra for details) and also pointed out that on the change of plea form, defendant had expressly admitted to a factual basis for the plea and that the form also reflected that the only “condition” for the plea was the specified disposition. Nevertheless, the trial court granted the mo tion/petition, vacated th e conviction, and set further proceedings. This pe tition from the People followed.

2 The Department of Justice agrees: < http://www.justice.gov/archive/ndic/pubs1/1 837/index.htm> (as of May 24, 2013).4 DISCUSSION The standard of review of an order on a petition for writ of error coram nobis is abuse of discretion. ( People v. Ibanez (1999) 76 Cal.App.4th 5 37, 544 [Fourth Dist., Div. Two].) With the development of the modern statutory postjudgment remedies—appeal and the motion for new trial—the role of the ancient writ of coram nobis has been sharply limited. ( People v. Reid (1924) 195 Cal. 249, 257-258.) As it is currently recognized and employed, coram nobis offers a defendant the opportunity for relief if three requirements are met: 1) the petitioner must show that some fact existed which, without negligence on his part, was not presented to the court at tr ial, and which, if pr esented, would have prevented the judgment; 2) he must also show that the new facts or information do not go to the merits of issues tried; and finally 3) he must also show that these facts could not have been discovered at any time substantially earlier than the time of his motion for the writ. ( People v. Shipman (1965) 62 Cal.2d 226, 230-231 ( Shipman ).) The party seeking 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 ), citing People v. Grgurevich (1957) 153 Cal.App.2d 806, 810-811.) Coram nobis has been recognized as appropriate where a plea of guilty is obtained by duress or extrinsic fraud. (E.g., People v. Perez (1908) 9 Cal.App. 265, 266-267 [defendant claimed that while aw aiting trial, the sheriff told him he was at risk of mob5 violence, which could only be avoided by a plea of gu ilty]; see also the even more egregious Sanders v. State (1882) 85 Ind. 318 [in which coun sel urged his client to plead guilty while a lynch mob howled outside].) But again, in such a case the defendant must make a “strong and convincin g showing of the deprivati on of rights by extrinsic causes . . . .” ( People v. O’Neal (1962) 204 Cal.App.2d 707, 708-709.) First, the bare claim that defendant’s plea was “conditional” was simply not supported by the record, and there is certai nly nothing to show that the trial court at the

time was prepared to allow defendant to w ithdraw his plea if the lab results were exculpatory. The trial cour t should not have accepted this uncorroborated assertion, which stood in clear contradiction to the record. It will also be immediately apparent that defendant’s showing he re fell far short of the necessary standa rd on the critical Shipman criteria. The “new fact” which defendant offered does go directly to the merits of the issu es tried—he was charged with possessing a controlled substance, and the lab results i ndicate that the sample tested was not a controlled substance. Furthermore, there was absolutely no evidence presented as to why the information was not discovered sooner. As we have noted, the report is dated almost a month before the plea was entered, and no thing in the motion explained why defendant and/or his attorney had not insisted on receiving it before entering the plea. Worse yet, the motion also acknowledged that th e results were rece ived in July of 2011—over a year before the motion/petition was filed. This clearly fails under the third Shipman criterion—he did discover the new facts “substantia lly earlier” than the time he actually filed for relief.6 The trial court apparently thought that because the new evidence pointed to (but did not establish) innocence, de fendant was entitled to relief. But as we have explained, coram nobis is not to be routinely employed to vacate convictions free from duress or fraud. Defendant’s failure to me et the criteria established for coram nobis relief cannot be excused by the potentially exculpatory nature of the evidence presented. Defendant argues that extraordinary relief is not necessary becau se the People can appeal. The order is appealable. (See Pen. Code, § 1238, subd. (a)(5) [order after judgment substantially affecting the People’s rights]; People v. Gutierrez (2003) 106 Cal.App.4th 169.) However, given the extensiv e delay in this matter, which carries the potential for prejudice to the People if retrial should be necessary—a nd the desirability of preventing an unnecessary retrial—we think immediate revi ew is warranted. Defendant then asserts at some length that the plea was induced by “deceit” in that the prosecutor knew the substance tested ne gative and concealed this information from defendant and his attorney. Th ere is no evidence in the record to support it. It is a fundamental rule of appellate review that st atements of alleged facts in the briefs on appeal that are not contained in th e record must be disregarded. ( Knapp v. Newport Beach (1960) 186 Cal.App. 2d 669, 679.) Defendant urges that the People suppo sedly “admitted” dece it by the comment in the petition to the effect that if defendant ha d been concerned about the sample results, he “could have demanded the laboratory results from the People . . . .” In our view, defendant reads far too much into this “concession,” wh ich does not conclusively establish that the prosecutor in this case had received or had reviewed the report. At the7 point cited by defendant, the People continue “ or could have obtained the results on his own initiated [sic] from th e Department of Justice .” 3 (Italics added.) All that can be definitely stated from the factua l record is that defendant was indifferent to the results at the time he entered his plea. The trial court was presented with no basis whatsoever to conclude that the prosecutor acted inappropriat ely, and we decline to consider upholding the ruling on any such basis. We also point out that absent extrinsic fraud or duress, a judgment predicated on perjury or entered because evidence was concealed cannot be attacked by a petition for writ of error coram nobis . As relevant to this case, defendant could have protected himself by going to trial and demanding discovery of the lab report. (See Mendez , supra , 87 Cal.App.4th 791, 799 [in wh ich the defendant pleaded guilty after the arresting officer testified about a dr ug transaction at the preliminary hearing and later argued that the officer had, years later, turned “rogue” and coul d have been lying; remedy was to have gone to trial and challenge the officer’s credibility, and coram nobis was not available].) Defendant is on slightly better ground in challenging the People’s reliance on his lack of diligence in seeking relie f. He correctly points out that this issue was not raised in the opposition below, in whic h the People argued only that defendant had failed to meet the other two Shipman requirements—that there was no new fact and the purported new fact went to the merits. He su pports his claim of waiver with In re Moser (1993) 6

3 The report is directed to “Drug Repor t Recipient” at the Moreno Valley Police Department. It apparently did not go di rectly to the district attorney.8 Cal.4th 342, 350 at footnote 7. In that habeas corpus procee ding, the People attempted to raise an issue of delay in both the Court of Appeal and the Supreme Court. When the Supreme Court granted review, it expressly limited the issues to be considered to those of the trial court’s duty to correctly advise de fendant about the length of the applicable parole period prior to accepting a guilty plea, and the remedy for a ny error in that respect. Thus, the Supreme Court, in deeming the time liness issue to have be en waived because it was not raised in the trial court, also relie d acerbically on the People’s disregard of the limiting language in the grant of review. As we have explained above, in seeking coram nobis, the defendant bears a heavy burden. While it is puzzling that the Pe ople below relied only on the first two Shipman requirements, the fact is that the motion/petiti on itself was deficient in its conclusory and unsupported assertion of diligen ce that the trial court simply could not have found it to have satisfied the legal requirement. (See People v. Kim (2009) 45 Cal.4th 1078, 1098- 1099 [must allege with spec ificity “the time and circumstances under which facts were discovered”].) However, defendant’s claim for relief was also defective on the other two grounds, as we have discussed above, with respec t to which the People did raise appropriate arguments. Defendant did not show that he fa iled to present the purported “new fact” to the trial court before entering his plea due to reasons beyond his control. And we also reiterate defendant’s proffere d new fact goes directly to the merits of the case—guilt or innocence. Ev en new evidence that would have bolstered the defense will not lead to relief unless it would have precluded the judgment in a legal sense.9 ( People v. Kim, supra, 45 Cal.4th 1078, 1095, citing People v. Tuthill (1948) 32 Cal.2d 819, 827.) Evidence disputing the prosecutio n’s charges is not the kind of “new fact” that would lead a court to dec line to enter the judgment. (See People v. Kim , supra , 45 Cal.4th at pp. 1091-1094 [discussing the histor y of the writ and noti ng examples such as the death of a party before judgment, infancy of a party or the common law disability of a married woman litigant, insanity , or legal servitude].) Accordingly, defendant failed to establish a right to relief under any of the Shipman factors, and the court’s ruling failed to follow clearly applicable law. (See Mendez , supra , 87 Cal.App.4th at p. 803 [declining to create an “abstract ‘equitable remedy’ ” where defendant’s claim did not meet the legal standard for relief in coram nobis ].) A ruling in clear contradiction of es tablished law also constitutes an abuse of discretion when that is the standard of review. ( People v. Superior Court (Brim) (2011) 193 Cal.App.4th 989, 991; People v. Ibanez , supra , 76 Cal.App.4th at p. 549.) Accordingly, we will grant the People’s petition.
DISPOSITION The petition for writ of mandate is grante d. Let a peremptory writ of mandate issue, directing the Superior Court of Rive rside County to vacate its order denying summary adjudication of count on e of real party in interest’s complaint, and to enter a new order granting summary adj udication as to that count. In all other respects, the petition is denied.10 Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the or iginal filed with the clerk of this court, together with proof of service on all parties. The stay previously ordered by this court is lifted.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING J. We concur:

RAMIREZ P. J.

CODRINGTON J.