P. v. Sith
Filed 12/8/08 P. v. Sith CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. CRAIG SMITH, Defendant and Appellant. | H032602 (Santa Clara County Super. Ct. No. CC074566) |
Defendant Craig Smith appeals from an order denying a Motion to Set Aside and/or Vacate Judgment in the Nature of Coram Nobis. The motion sought to set aside a judgment entered against him in 2001 on the grounds that his plea was based on misinformation. The trial court denied the motion. This timely appeal ensued. On appeal, appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. Defendant has submitted a supplemental brief which we now consider pursuant to People v. Kelly (2006) 40 Cal 4th 106. Finding no arguable issue on appeal we will affirm the judgment.
Factual And Procedural Background
Defendant has a lengthy history of convictions for driving under the influence (DUI).[1] Prior to 1993, defendant suffered at least three misdemeanor convictions for driving under the influence. (Veh. Code, 23152, subds. (a) & (b).) In a complaint filed in Santa Clara County in 1993, defendant was charged with felony driving under the influence of alcohol (Veh. Code, 23152, subdivision (a)), driving under the influence with three or more convictions (Veh. Code, 23152, subd. (b)), and driving while license suspended/revoked for DUI conviction. (Veh. Code, 14601.2.) Defendant pleaded no contest to one felony count of driving under the influence with three or more convictions (Veh. Code, 23152, subd. (b)), and one misdemeanor count of driving while license suspended/revoked for DUI conviction. (Veh. Code, 14601.2.) The court suspended imposition of sentence on the condition that defendant serve six months in county jail. The minutes from sentencing and the sentencing report for this conviction list that defendant was convicted of a felony and placed on felony probation.
Subsequently in 1998, pursuant to a negotiated plea bargain, defendant pleaded no contest to a reduced misdemeanor count of felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).) Defendant was deemed to have served his sentence and was placed on two years formal probation. On November 22, 2000, the district attorney successfully moved to amend the judgment, modifying the charge from a misdemeanor to a felony. The court had no choice but to grant the motion because the Penal Code section 12021, subdivision (a)(1) is a non-alternative felony which could not properly be reduced to a misdemeanor pursuant to Penal Code section 17. Subsequently, on defendants motion, the trial court vacated the judgment and allowed him to withdraw his plea. Thereafter, the district attorney dismissed the charges and the case was dismissed.
On June 13, 2000, defendant was again charged with one felony count of driving under the influence of alcohol with a felony prior within 10 years (Veh. Code, 23152/23550.5, subd. (a) - count one), and one felony count of driving under the influence with a blood alcohol of 0.08 percent and a felony prior within 10 years. (Veh. Code, 23152/23550.5 subd. (a) - count two.) Defendant pleaded no contest to count one in exchange for a dismissal of count two. On February 14, 2001, pursuant to the plea agreement, the court sentenced defendant to the lower term of 16 months.
Seven years after entry of judgment, on January 15, 2008, defendant filed a motion in the trial court seeking to vacate the February 2001 judgment on the grounds that his conviction and sentence were based on misinformation and that he received ineffective assistance of counsel. Finding that the motion was procedurally defective, the trial court denied the motion. This appeal ensued.
Discussion
In his supplemental brief, defendant contends that the trial court erred in denying his motion to withdraw his plea because the 1993 DUI conviction used to support his conviction was actually a misdemeanor conviction. It could not, therefore, support the charge of driving under the influence of alcohol with a felony prior within 10 years. Defendants argument is without merit. Defendant was charged and convicted of a felony. Both the sentencing report and minutes from sentencing list the charge as a felony. Box 6 of the sentence report, which is specifically provided for the trial court to list any alternative felonies it has deemed to be misdemeanors, is not selected and nothing is listed in that section. Nothing else in the record of the 1993 conviction suggests that this conviction was a misdemeanor as defendant contends.
According to defendant the fact that the trial court did not order him to complete formal probation provides further evidence that he was convicted of a misdemeanor comes from. The record does not support this contention. The court minutes state only that defendant waived a probation report, but the sentencing report shows that the trial court ordered defendant to complete three years formal probation. In ordering defendant to serve 12 months in county jail, the court stated that After serving 6 mos; may complete sentence in a Residential Alcohol Program approved by Adult Probation Officer. (Emphasis added.) On the record before us, it appears that defendant was ordered to serve formal probation consistent with a felony conviction. Since the record supports the conclusion that defendant was convicted of a felony in 1993, there was no basis to grant defendants motion.
Pursuant to our obligation as set forth in People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly, supra, 40 Cal 4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
Disposition
The judgment is affirmed.
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rushing, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.
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[1]On this courts own motion, we have taken judicial notice of the contents of the file in Santa Clara County case number CR 16-37-75, containing the record of defendants 1993 convictions for driving under the influence with three or more convictions (Veh. Code, 23152, subd. (b)), and driving while license suspended/revoked for DUI conviction. (Veh. Code, 14601.2.)
