P. v. Smith















Filed 6/21/12 P. v. Smith CA2/6

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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 SIX




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THE PEOPLE, Plaintiff and Respondent, v. BRIAN ANDREW SMITH, Defendant and Appellant.

2d Crim. No. B239844 (Super. Ct. No. A087800) (Los Angeles County)

Brian Andrew Smith
appeals an order denying his petition for writ
of error coram nobis to vacate a 1984 robbery conviction by plea which
resulted in a three-year state prison sentence.
(Pen. Code, § 211.)

In
2011, appellant filed a petition for writ of error coram nobis while serving a
25-year-to-life Three Strikes sentence in Case No. A087800. The writ petition alleged that the 1984
conviction was illegally used as a strike in Case No. A087800 because appellant
was not advised of his right to court
trial or of the consequences of his plea (mandatory parole) when the change
of plea was entered in 1984, and because the trial judge who took the plea
(Honorable Judge Lawrence J. Rittenband) did not have an oath of office on file
with the Secretary of State in 1984 (Gov. Code § 1363, subd. (a)(3)).

The
trial court denied the petition. (See People
v. Shipman (1965) 62 Cal.2d 226, 230.)

We appointed counsel to
represent appellant in this appeal.
After examination of the record, counsel filed an href="http://www.fearnotlaw.com/">opening brief in which no issues were
raised.

On
May 15, 2012, we advised
appellant that he had 30 days within which to personally submit any contentions
or issues he wished us to consider. On June 14, 2012, appellant filed a supplemental
brief stating that the judge's failure to file an oath of office rendered the
1984 conviction void and that he was denied effective assistance of counsel in
the Three Strikes case, i.e., Case No. A087800.

It
is well settled that coram nobis does not lie correct errors of law or to
redress irregularities at trial that could have been timely corrected by motion
for new trial, appeal, or habeas corpus.
(6 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2000) Criminal
Judgment §§ 185-187, pp. 215-218; People
v. Hayman (1956) 145 Cal.App.2d 620, 623; see also People v. Perry
(1889) 79 Cal. 105, 112-112 [discussing former Political Code,
§§ 909, 996; public official's inadvertent failure to file oath of
office does not forfeit office].) Nor
are claims of claims of ineffective assistance of counsel within the scope of
coram nobis. (People v. Kim (2009)
45 Cal.4th 1078, 1104; People v. Gallardo (2000) 77 Cal.App.4th 971,
982-983.) Having reviewed the entire
record, we are satisfied that appellant's attorney has fully complied with his
responsibilities and that no arguable
issues exist. (People v. >Wende (1979) 25 Cal.3d 436, 4443; People
v. Kelly (2006) 40 Cal.4th 106, 126.)

The judgment (order denying petititon
for writ of coram nobis) is affirmed.

NOT TO BE PUBLISHED.





YEGAN,
J.

We
concur:





GILBERT, P.J.





PERREN, J.
clear=all >

Chester Horn, Judge



Superior Court County of Los Angeles



______________________________





California Appellate
Project, under appointment by the Court of Appeal, Jonathan B. Steiner,
Executive Director and Richard B. Lennon, Staff Attorney, for Appellant.



No appearance for
Respondent.