Filed 12/20/19 P. v. Patterson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYAN DAMON PATTERSON,

Defendant and Appellant.

F077189

(Super. Ct. No. 28394)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge.

Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

 

Appointed counsel for defendant Bryan Damon Patterson asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded, contending his motion to vacate his judgment based on newly discovered evidence (Pen. Code, § 1473.6) was erroneously denied. We conclude defendant failed to allege facts sufficient to show the evidence was newly discovered, and thus the motion was properly denied. We find no other arguable errors that would result in a disposition more favorable to defendant. We affirm.

BACKGROUND

Defendant was made a ward of the juvenile court in 1997 when he was almost 13 years old.

On July 19, 2001, the juvenile court sustained two counts of robbery (§ 211) and committed defendant to the California Youth Authority (CYA) for seven years four months.

On July 5, 2003, defendant, then 18 years old, was on a CYA fire-fighting work crew in Mariposa. While the crew’s bus was stopped at a light during the ride back to CYA, defendant and another male escaped from the bus through the fire escape window. Officers pursued them through several residential streets. Defendant entered a residence through a sliding glass door. The homeowner and her son pushed defendant out of the sliding glass door. A screwdriver and bag of clothes belonging to defendant were found in a nearby alley. Defendant was apprehended.

On July 9, 2003, defendant was charged with escape or attempted escape by force or violence from CYA (Welf. & Inst. Code, § 1768.7, subd. (b); count 1), first degree burglary (§ 459; count 2), assault with force likely to produce great bodily injury or with a deadly weapon (former § 245, subd. (a)(1); count 3), and misdemeanor resisting an officer (§ 148; count 4). As to counts 1 through 3, it was further alleged defendant had suffered a prior felony adjudication/conviction for robbery (§ 211) on July 19, 2001, within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

At the plea hearing on August 25, 2003, defense counsel recited the proposed plea agreement and the trial court advised defendant of his rights and the consequences of his plea. During the course of this discussion, the prosecutor added:

“[The burglary conviction] is a strike, also priorable. But this—the Defendant’s entry of his plea today constitutes an entry to his second strike offense, that means should he be convicted of any felony in the future, he will be facing [the] possibility of a twenty-five year to life sentence.”

The court asked defendant if he understood this and he answered in the affirmative. The prosecutor continued:

“Also because this is a first-degree burglary conviction, [that] means should he be charged with a petty theft, that his conviction today could enhance that and make that a felony offense.”

The court added, “Which would result in twenty-five to life; do you understand?” Defendant again answered in the affirmative.

Defendant then entered his plea of guilty to escape or attempted escape by force or violence from CYA (count 1) and first degree burglary (count 2). Defendant admitted having suffered the prior felony conviction for robbery. In exchange for his plea, he would be sentenced to five years four months in prison as follows: four years (two years, doubled pursuant to the Three Strikes law) on count 2, plus 16 months (one-third the midterm, doubled pursuant to the Three Strikes law) on count 1.

At a hearing on September 24, 2003, according to defendant, defense counsel inadvertently revealed to defendant a document containing the victim’s statement, in which she stated no burglary had occurred and she wanted nothing to do with the prosecution. Defendant immediately raised a Marsden motion to discharge appointed counsel and also moved to withdraw his plea. The court granted the Marsden motion and continued the motion to withdraw the plea.

On October 9, 2003, again according to defendant, in support of his motion to withdraw the plea, he argued defense counsel had unlawfully concealed the victim’s statement, and he would never have agreed to plead had he seen it. Newly appointed defense counsel advised the trial court he had examined the file and the plea transcript and did not find any legal cause for defendant to withdraw his plea. The court denied the motion and sentenced defendant as agreed. Defendant did not appeal.

More than 14 years later, on January 29, 2018, defendant filed a motion to vacate his 2003 judgment under section 1473.6 based on the following: (1) defense counsel unlawfully concealed the exonerating victim’s statement from defendant, and (2) defense counsel misadvised him he would be subjected to a possible Three Strikes sentence of 25 years to life if he did not accept the plea. He claimed defense counsel and the prosecutor together falsely incriminated him for a burglary he did not commit, and he would not have pled guilty if he had known about the exonerating statement and had been properly advised of his maximum penal exposure had he chose not to plead. Defendant asserted he is actually innocent of the burglary charge.

On March 6, 2018, the trial court filed a written order denying the section 1473.6 motion based on a lack of jurisdiction. The order also noted the motion was without merit because defendant’s section 1018 motion had been considered before sentencing and was properly denied.

On March 19, 2018, defendant filed a notice of appeal from the denial of the motion.

DISCUSSION

Section 1473.6, effective January 1, 2003 (Stats. 2002, ch. 1105, § 3), allows a person no longer imprisoned or restrained (and thus without standing to petition for a writ of habeas corpus) to file a motion to vacate a judgment based on (1) “[n]ewly discovered evidence of fraud by a government official that completely undermines the prosecution’s case, is conclusive, and points unerringly to his or her innocence,” (2) “[n]ewly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment,” or (3) “[n]ewly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment.” (§ 1473.6, subds. (a)(1)–(3).)

“ ‘The legislative history of … section 1473.6 reflects the belief that at the time of the introduction of the legislation, “… other than a pardon, no remedy exist[ed] for those no longer in the system to challenge their judgment when they learn[ed] that their conviction was obtained in part because of fraud or false evidence by a government official.” [Citation.] … Because the misconduct was discovered many years after it occurred, those who were no longer in custody at the time of the discovery of the misconduct would not be able to set aside their convictions.’ ” (People v. Villa (2009) 45 Cal.4th 1063, 1076, fn. 5.)

Section 1473.6 defines “ ‘newly discovered evidence’ [as] evidence that could not have been discovered with reasonable diligence prior to judgment” (§ 1473.6, subd. (b)), and mandates that a motion to vacate the judgment “be filed within one year” from “[t]he date the moving party discovered, or could have discovered with the exercise of due diligence, additional evidence of the misconduct or fraud by a government official beyond the moving party’s personal knowledge,” or the effective date of the statute, whichever is later (§ 1473.6, subd. (d)).

The procedure for raising and adjudicating a section 1473.6 motion, “including the burden of producing evidence and the burden of proof, shall be the same as for prosecuting a writ of habeas corpus.” (§ 1473.6, subd. (c).) Thus, the defendant “bears the burden ‘initially to plead sufficient grounds for relief, and then later to prove them.’ [Citations.] [He] must prove the facts establishing a basis for relief by a preponderance of the evidence.” (In re Bell (2017) 2 Cal.5th 1300, 1305.) Conclusory allegations made without any explanation do not establish a basis for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.)

In this case, defendant did not carry his burden to plead sufficient grounds for relief under section 1473.6 because he failed to allege facts showing that either the victim’s statement or defense counsel’s alleged misadvice on defendant’s maximum exposure constituted newly discovered evidence.

First, defendant admitted in his section 1473.6 motion that he discovered the victim’s statement in 2003 and raised it when he moved to withdraw the plea in 2003. Thus, this evidence did not constitute newly discovered evidence in 2018. Defendant’s remedy was to appeal the trial court’s denial of his motion to withdraw the plea within his time for appeal, which had passed many years before 2018.

Second, defendant’s section 1473.6 motion failed to allege when and how defendant discovered that defense counsel’s advice regarding his maximum exposure was incorrect. As a result, defendant did not adequately allege the necessary facts in his motion to show the alleged misadvice was newly discovered.

Accordingly, the trial court properly denied defendant’s section 1473.6 motion to vacate the judgment.

Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The trial court’s denial of the section 1473.6 motion to vacate the judgment is affirmed.