Filed 7/16/12 P. v. Torres CA5
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESUS TORRES,
Defendant and
Appellant.
F063117
(Super.
Ct. No. F97603138-9)
APPEAL
from a judgment of the Superior Court of
County. Don Penner, Judge.
Elizabeth
Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
AND PROCEEDINGS
On July 18, 2011, appellant, Jesus Torres,
filed a petition for writ of error coram
nobis with the trial court.
Appellant’s writ was based on his contention that when he was convicted
of a drug offense in 1998, he was not notified that his conviction could later
be used to increase his sentence for a future federal offense. Appellant was subsequently arrested for a
federal offense, pled guilty in that action, and his state court conviction was
allegedly used to triple his sentence in the federal case. Appellant asserted to the trial court that
his trial counsel in the state court action failed to inform him at any time
that a consequence of his guilty plea could result in the enhancement of
penalties in future criminal actions.
On July 21, 2011, the trial
court held that appellant’s writ of error coram nobis failed to raise a
cognizable claim because it was based on an assertion of ineffective assistance
of trial counsel. The court denied the
writ. Appellant filed a timely
COURT REVIEW
Appellant’s appointed
appellate counsel has filed an opening brief that summarizes the pertinent
facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25
Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on December 16, 2011, we invited
appellant to submit additional briefing.
Appellant replied with a
that his original trial counsel in state court was ineffective for failing to
properly advise him of an important consequence of his plea. Appellant further explained that after he was
convicted of the state drug offense in 1998, he was deported. When he tried to enter the United States
illegally, appellant was arrested and his state court conviction enhanced his
federal sentencing exposure 16 levels, for a federal sentence of five
years.
The ineffective assistance of counsel is not properly raised in a
petition for writ of error coram nobis.
(People v.
fn. 13; People v.
fn. 4; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.) The denial of a defendant’s request for coram
nobis relief is appealable. Where the
petition raises only improper claims such as ineffective assistance of trial
counsel or misstatements by trial counsel, an appeal from the superior court’s
ruling may be dismissed as frivolous. (
determines whether defendant has made a prima facie showing of merit in the
coram nobis petition, and, if not, may summarily dismiss the appeal].)
We find no error in the trial court’s denial of appellant’s petition
for a writ of error coram nobis.
independent review of the record, we conclude there are no reasonably arguable
legal or factual issues.
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Gomes, J., and Kane, J.
name="_ftn2" title="">[1] The
record is limited to the appellant’s writ petition, trial court’s ruling,
notice of appeal, and appellate briefs.
The record of appellant’s underlying conviction in state superior court
is not before us. We cannot discern from
the present record whether the trial court made the proper advisement prior to
accepting appellant’s admission of the state drug offense pursuant to Penal
Code section 1016.5, subdivision (a). We
note, however, the appellant does not assert that the trial court failed to
give him the proper statutory admonition, only that he was not adequately
advised by his trial counsel.
