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,

Plaintiff and Respondent,

v.

HIRAM ELIXER SUMMERS,

Defendant and Appellant.

 B263684

 (Los Angeles County

 Super. Ct. No. BA260968)

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.
2

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.) 
3

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 “chronicpsychosis is not ‘on-set’ psychosis, but rather a pre-existing major mental illness that preexisted 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.
4

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.