P. v. Breedlove

Filed 7/18/06 P. v. Breedlove C5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary Orozco, Judge.

Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Calvin Breedlove admitted an allegation on January 14, 1986, that he committed second degree homicide (Pen. Code, § 187, subd. (a)). Breedlove was admonished that a consequence of his plea would be a prison sentence for the term then prescribed by law, 15 years to life. The court imposed a prison sentence of 15 years to life. On August 17, 2005, Breedlove filed a petition for writ of error coram nobis to vacate what he characterized as an illegal sentence. The basis for Breedlove's motion was that he had already served 20 years of his sentence and this was longer than the term set forth in the plea bargain. On September 16, 2005, the trial court denied Breedlove's petition.

Breedlove's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Breedlove was advised he could file his own brief with this court.

By letter on March 3, 2006, we invited Breedlove to submit additional briefing. He replied with two supplemental briefs on March 14, 2006, and April 4, 2006. The gravamen of these documents is that Breedlove was promised he would serve no more than 10 to 15 years in prison but had already served nearly 20 years in prison, violating the plea agreement. Breedlove further complains that he has been denied parole. Breedlove's briefing to this court raises the same issues he raised in his writ of error coram nobis before the trial court.

A trial court's denial of a petition for a writ of error coram nobis is an appealable order. (Pen. Code, § 1237; People v. Allenthorp (1966) 64 Cal.2d 679, 683; People v. Shorts (1948) 32 Cal.2d 502, 506-507.) In an appeal from a trial court's denial of an application for a writ of error coram nobis, a reviewing court initially determines whether the defendant has made a prima facie showing of merit. If the defendant fails to do so, the court may summarily dismiss the appeal. (People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4.)

Appellant attached an incomplete transcript of his change of plea hearing to his petition to the trial court. The hearing transcript indicates the trial court admonished appellant that his admission of second degree murder would carry a mandatory prison term of 15 years to life. Appellant acknowledged during the hearing that he understood this.^[1] The trial court did not admonish appellant that his admission of the allegation would carry a prison term of 10 to 15 years as he asserts in his letter briefs.

A writ of error coram nobis is reviewed under the standard of abuse of discretion. The writ lies only to correct errors of fact as distinguished from errors of law. The writ properly issues only when the petitioner can establish: (1) some fact existed which, without his or her fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) the new evidence does not go to the merits of the issues of fact determined at trial; and (3) the defendant did not discover nor could have discovered with due diligence the facts upon which he or she relies any sooner than the point at which the petition is filed. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.)

There was no new evidence before the trial court other than the fact that appellant had served nearly 20 years of an indeterminate prison term of 15 years to life. Because appellant could serve up to a life sentence, the fact that he has been in prison for 20 years does not violate the terms of his plea agreement or the trial court's sentence.

Appellant has provided no evidence in his petition to support his complaint that there was error in denying his requests for parole. The Board of Prison Terms (Board) exercises broad discretion in making decisions on when to release an inmate on parole. The Board's discretion in parole matters is great and almost unlimited. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655; People v. McElwee, supra, 128 Cal.App.4th at p. 1352.) There is no factual basis for a writ of error coram nobis based on the actions of the Board. The trial court did not err in denying appellant's petition.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The trial court's order denying appellant's writ of error coram nobis is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Dawson, J.

^[1] When appellant admitted the second degree murder allegation, the prison term set forth in Penal Code section 190, subdivision (a) was, as it still is, 15 years to life.