Filed 4/29/22 P. v. Smith CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B311789
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. A533762)
WILLIAM SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Penal Code section 1473.6 authorizes courts to vacate a
criminal judgment based on newly discovered evidence of fraud or
misconduct by a government official.1 We consider whether the
trial court correctly denied defendant and appellant William
Smith’s (defendant’s) section 1473.6 motion, which argued
defense counsel and the trial court failed to properly advise him
of his rights before he pled guilty.
I. BACKGROUND
Over 30 years ago, in May 1986, defendant pled guilty to
two counts of robbery and two counts of attempted kidnapping for
robbery (§§ 209, subd. (b), 664). The trial court sentenced him to
fourteen years in prison.
More recently, in March of 2021, defendant filed a section
1473.6 motion. This is how the notice of motion summarizes the
issues raised: “1. Defendant must be advised of his constitutional
rights against compulsory self-incrimination, to a jury trial, and
to confront accusers before he can enter a plea. [Boykin v.
Alabama] (1969) 395 U.S. 238. [¶] 2. When a transcript of the
defendant’s plea is lost or destroyed, he may present other
evidence that his BOYKIN/TAHL right[s] were infringed. [People
v. Sumstine] (1991) 36 Cal.3d 909. [¶] 3. The defendant should
be advised of the direct consequences of his plea. [In re Ronald
E.] (1977) 19 [C]al.3d 315, 325; [People v. Watson] (1956) 46
Cal.2d 818. [¶] 4. The defendant should be advised of the nature
of the charges against him. [Bunnell v. Superior Court] (1975) 13
Cal.3d 592, 6022. [¶] 5. The plea should be vacated if the
1
Undesignated statutory references that follow are to the
Penal Code.
2
defendant was not adequately represented by counsel.
[Strickland v. Washington] (1984) 466 U.S. 668, 687-688. [¶] 6.
The court must find a factual basis for the plea. [People v. Watts]
(1977) 67 Cal.App.3d 173, at 178.”2
The trial court denied defendant’s motion for the following
reasons: “(1) Defendant’s sentence is pursuant to an agreed upon
disposition between the defense and the People. [¶] (2) Motion is
untimely. Plea was taken over 34 years ago. [¶] (3) The court
does not find any facts to support issue raised. The court only
finds opinions and conclusions.”
II. DISCUSSION
As we briefly explain, reversal is not warranted because
defendant’s section 1473.6 motion did not allege, much less
present evidence to establish, there was any fraud or misconduct
by a government official that could serve as a predicate for relief
under the statute. We accordingly need not consider whether the
long delay in bringing the motion forecloses relief.
A. Legal Background
Section 1473.6, which took effect on January 1, 2003,
authorizes a person who is no longer imprisoned or restrained to
file a motion to vacate a judgment for any of the following
2
Defendant filed a request asking this court to judicially
notice (1) a criminal information filed in another case that listed
defendant’s prior conviction in this matter as a “strike” conviction
under the “Three Strikes” law, and (2) a February 1996 reporter’s
transcript that reflects the court in that case found defendant
sustained a strike conviction in this case. This court granted the
request for judicial notice.
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reasons: (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”
(§ 1473.6, subd. (a)(1)); (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”
(§ 1473.6, subd. (a)(2)); 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, subd. (a)(3)).3
Section 1473.6, subdivision (d)(1) requires any motion for
relief to be filed within one year of the later of January 2, 2004,
or “[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.” “The procedure for bringing
and adjudicating a section 1473.6 motion is ‘the same as for
prosecuting a writ of habeas corpus.’ [Citation.]” (People v.
Wagner (2016) 2 Cal.App.5th 774, 778.) A court must issue an
order to show cause on a motion for relief under section 1473.6 if
“the petitioner has made a prima facie showing that he or she is
3
Section 1473.6 “was originally introduced to address a
problem illustrated by the so-called Rampart scandal . . . in
which it was discovered that certain Los Angeles Police
Department officers had engaged in misconduct, including
planting evidence, filing false police reports, committing perjury,
and creating nonexistent confessions.” (People v. Germany (2005)
133 Cal.App.4th 784, 791, fn. omitted (Germany).)
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entitled to relief. In doing so, the court takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved.” (Cal. Rules of Court, rule
4.551(c)(1).)
A trial court’s order denying a section 1473.6 motion is
appealable, and our review of the order (at least when made on
prima facie ineligibility grounds) is de novo. (Germany, supra,
133 Cal.App.4th at 787, fn. 2, 789.)
B. Defendant Made No Prima Facie Showing
The bulk of defendant’s section 1473.6 motion is comprised
of legal assertions. There are only scant factual assertions, and
those are unverified and conclusory: defendant pled guilty in
1986, he was purportedly not advised of his rights before entering
his plea, he did not waive his rights before entering his plea, and
the transcript of defendant’s plea was misplaced or destroyed.
We nonetheless accept defendant’s factual allegations as true
(Germany, supra, 133 Cal.App.4th at 790), but his motion still
does not make a prima facie showing he is entitled to relief under
section 1473.6.4
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Defendant argues a remand is necessary because the trial
court record does not contain page five of his section 1473.6
motion. Even assuming the absence of the page (which we have
augmented our record to include) indicates the trial court did not
consider that page, remand is still unnecessary. The only fact
asserted in the missing page is that the transcript of defendant’s
former plea was misplaced or destroyed, a fact that does not
impact the elements of section 1473.6. Further, and in any event,
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Defendant does not allege a government official testified
falsely at his trial or any evidence in his case was fabricated.
Accordingly, defendant did not state a prima facie case for relief
under section 1473.6, subdivisions (b) or (c). The only provision
under which defendant’s allegations could possibly qualify for
relief is thus subdivision (a)(1), which permits a judgment to be
vacated based on “[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.”
Defendant’s motion does not make out a prima facie case of
fraud. The purported fraudulent acts allegedly committed by the
relevant government officials—e.g., trial counsel and the trial
court—were the asserted failure to advise defendant of pertinent
information (namely his constitutional rights, the consequences
of a plea, and the nature of the charges against him). Even if we
read those asserted failures as omissions, defendant still lacks
any allegation intimating the respective government officials
intended to induce reliance on the omissions, or that defendant
did indeed rely on those omissions. Defendant also argues the
few factual allegations in his motion are enough to make out a
prima facie case of fraud because the trial court and defense
counsel “both violated their obligations to ensure [defendant] was
properly advised of the charges and consequences of the plea,
that he knowingly waived his constitutional rights, and that
there was a factual basis for the guilty plea.” That may be an
argument (albeit a quite belated one) that there was ineffective
assistance of counsel or an inadequate plea colloquy, but it is not
our review is de novo and we have considered page five of the
motion in arriving at our disposition of this appeal.
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an argument that there was fraud—and certainly not fraud that
completely undermines the prosecution’s case and points
unerringly to defendant’s innocence.
The remaining ancillary arguments defendant offers in this
appeal are irrelevant or meritless. Defendant seizes on trial
court’s statement that it did “not find any facts to support [the]
issue raised” and believes this was an improper factual finding at
the prima facie review stage. This does not matter; our review is
de novo and we have taken defendant’s factual assertions as true.
Defendant also cites People v. Kim (2009) 45 Cal.4th 1078, 1094
(Kim) and Mendez v. Superior Court (2001) 87 Cal.App.4th 791,
798, fn. 2 (Mendez) to claim his guilty plea in this matter was
fraudulently induced. Both Kim and Mendez, which involve
petitions for writs of error coram nobis not motions under section
1473.6, mention that such a writ has issued only under limited
circumstances, including “[w]here a plea of guilty was procured
by extrinsic fraud.” (Kim, supra, at 1094; Mendez, supra, at 798,
fn. 2.) There is no allegation (or evidence) of extrinsic fraud
raised in defendant’s motion.
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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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