P. v. Falcon CA4/3

Filed 4/30/13 P. v. Falcon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047031

v. (Super. Ct. No. 07CF0309)

YOBA FALCON, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Craig E. Robison, Judge. Affirmed. William Mallory Kent for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Yoba Falcon contends he pleaded guilty to four counts of assault with a deadly weapon because his attorney and the trial court promised him his seven-year state prison sentence would run concurrently with a term he later received in an unrelated federal case. He filed a petition for writ of error coram nobis in the trial court 17 months after the federal court sentenced him to a consecutive term. He sought a specific performance remedy: An order vacating his judgment and sentence in the state case, which would have allowed federal authorities to place him in federal custody, and then gain reinstatement of his state prison sentence to be served concurrently with his federal commitment. The trial court denied the petition on “separate and independent grounds” that Falcon‟s attorney‟s certificate of service of the writ petition did not comply with Code of Civil Procedure section 1013a, and because Falcon did not establish clear entitlement to a coram nobis remedy. For the reasons expressed below, we affirm. I FACTS AND PROCEDURAL BACKGROUND According to the transcript of the preliminary hearing,1 Jesus Lopez informed Santa Ana police that childhood friend Falcon had severely injured him in an altercation over Falcon‟s affair with Lopez‟s wife. On the evening of December 26, 2006, the pair agreed to meet in the parking lot of a Santa Ana liquor store. Falcon warned Lopez “he was going to kick [Lopez‟s] ass and he didn‟t think [Lopez] was man enough to meet him.” Lopez drove to the store with his brother in a white Mercedes, parked, and spoke to Falcon on the phone. A short time later, Falcon, driving a black Escalade, rammed Lopez‟s vehicle. Lopez exited his car and ran toward the Escalade, which backed up and then pulled forward, knocking him back eight to 10 feet. Falcon