People v. Summers CA2/2

Filed 1/4/16 P. v. Summers CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B263684

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA260968) v.

HIRAM ELIXER SUMMERS,

Defendant and Appellant.

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.

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