P. v. Brownlee

Filed 5/1/08 P. v. Brownlee CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

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

Jeffrey Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

On July 7, 1980, appellant, Terrance Brownlee, pled guilty to one count each of second degree murder (Pen. Code, 187) and robbery (Pen. Code, 211) and admitted an arming enhancement in each count (Pen. Code, 12022.5). On August 4, 1980, Brownlee was sentenced to an indeterminate term of 17 years to life.

On October 17, 1980, Brownlee filed an appeal, which was rejected by the Superior Court as untimely.

In November 1983, Brownlee filed a petition for writ of habeas corpus in the trial court alleging he was denied the effective assistance of counsel, he did not voluntarily or intelligently waive his constitutional rights, and his plea was coerced.

On December 15, 1983, the court denied the petition.

On December 16, 2003, Brownlee filed a second petition for writ of habeas corpus in the trial court again alleging he was denied the effective assistance of counsel and that his Miranda^[1]rights were violated.

On December 23, 2003, the court denied the petition.

On January 26, 2004, Brownlee filed a petition for writ of habeas corpus in this court raising similar issues.

On February 5, 2004, this court denied Brownlees petition.

On February 25, 2004, Brownlee filed a petition for writ of habeas corpus with the Supreme Court, which the court apparently denied.

On May 7, 2007, the trial court filed Brownlees petition for a writ of error coram nobis alleging he had been denied the records pertaining to his 1980 plea and sentencing, the records had been destroyed unlawfully and in bad faith, his plea was not taken in open court, and he had already served more than the 15 years his plea bargain provided for.

On May 30, 2007, the trial court denied the petition finding that Brownlee had not shown due diligence in seeking relief and that some of the issues he raised already had been rejected in his November 8, 1983, petition for writ of habeas corpus.

Brownlees appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a document filed in this court on November 28, 2007, Brownlee raises a myriad of contentions including that the trial court committed extrinsic fraud by preventing him from presenting claims or defenses by not providing him with records pertaining to his plea bargain and plea hearing, that the court failed to preserve these records as required by law, and that his appellate counsel provided ineffective representation by filing a brief that did not raise any issues. He does not, however, address any issues relating to the courts denial of his petition for a writ of error coram nobis.

The instant appeal was taken from an order denying Brownlees petition for writ of error coram nobis. Therefore, the issues Brownlee raises are not properly before us because none of them relate to the trial courts denial of this petition. (Yarish v. Nelson (1972) 27 Cal.App.3d 893, 897 [only issues encompassed in the petition filed in the trial court and the courts denial of the petition are properly before the appellate court].)

Further, [a] writ of coram nobis permits the court which rendered judgment to reconsider it and give relief from errors of fact. [Citation.] The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed that without his fault or negligence, was not presented to the court at the trial and that would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.] [Citation.] The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.] [Citation.] (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) A writ of error coram nobis is reviewed under the standard of abuse of discretion. [Citation.] [Citation.] (Ibid.)

Brownlee fails to address the elements required for coram nobis relief or the basis for the trial courts denial of his petition. Accordingly, we conclude that the court did not abuse its discretion when it denied his petition for a writ of error coram nobis. (People v. Foss (2007) 155 Cal.App.4th 113,126 [appellant has the burden of affirmatively demonstrating error].)

Moreover, following independent review of the record we find that no reasonably arguable factual or legal issues exist.

The judgment is affirmed.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^*Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

^[1]Miranda v. Arizona (1966) 384 U.S. 436.