P. v. Brown
Filed 10/29/09 P. v. Brown CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. JEROME BROWN, Defendant and Appellant. | B213486 (Los Angeles County Super. Ct. No. A126761) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Martin Herscovitz, Judge. Dismissed.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1998, after an Orange County jury in Superior Court case number 97HF0802 convicted Jerome Brown of first degree burglary, it was found true that Brown had previously been convicted of strike priors under Penal Code section 667, the Three Strikes law. He received a sentence of 25 years to life in prison. One of the prior felony convictions used as a strike was from 1974 in Los Angeles County Superior Court case number A126761, when Brown pleaded guilty to burglary in violation of Penal Code section 459.
In September 2008, Brown filed the petition in propria persona for writ of error coram nobis which is before us on this appeal from the Los Angeles Superior Court under case number A126761. Brown contends that his 1974 conviction did not qualify as a strike because it was for second degree, not first degree, burglary. The superior court denied the petition on the merits in a minute order dated December 8, 2008.
Brown filed at least two other petitions for writ of error coram nobis in Los Angeles Superior Court, each also under the case number of his 1974 Los Angeles Superior Court conviction (A126761). We take judicial notice of two orders dated July 9 and 28, 2009, sent by Brown to this court and advising him that he was in the wrong superior court. The orders advised Brown that because he is in custody on the 1998 Orange County conviction, and is challenging his three-strikes sentence in that case, his petition should be filed in the Orange County Superior Court that sentenced him to state prison and used as a strike his prior conviction in Los Angeles.
Brown filed the orders telling him that the coram nobis petition belonged in Orange County Superior Court in this appeal, after it had been briefed. We had appointed counsel to represent Brown. His appointed counsel had advised the court she could find no issues to argue on his behalf, and requested an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Within 30 days, Brown had filed written arguments in his own behalf, arguing that his burglary conviction in 1974 could not be used as a strike because it was second rather than first degree burglary or, alternatively, because it was dismissed by the trial court.
We agree that Browns petition for writ of coram nobis belonged in the Orange County Superior Court, not in the Los Angeles Superior Court or in this district on appeal. Brown apparently thought so too in 2003, when he filed a petition for writ of coram nobis in Orange County Superior Court arguing, as he does here, that his 1974 Los Angeles County burglary conviction did not qualify as a strike. The Orange County Superior Court denied the writ for undue delay under People v. Castaneda (1995) 37 Cal.App.4th 1612. Brown appealed. Appointed counsel filed a Wende brief. In an unpublished decision, the Fourth District Court of Appeal affirmed the denial of the writ, concluding that Browns 1974 conviction, although apparently reduced to second degree as part of a plea bargain, qualified as a strike because it was a residential burglary. (People v. Brown (July 31, 2003, G032147) [nonpub. opn.]; People v. Moenius (1998) 60 Cal.App.4th 820, 827.)
Brown, undaunted by the denial of his petition in the appropriate trial court in Orange County and by the Fourth Districts affirmance of the denial on appeal, decided to file the same petition in Los Angeles, where as we have described above, it was denied three times in the trial court, and is now before us with a Wende brief from counsel. Brown is undoubtedly in the wrong court of appeal, just as he was in the wrong superior court.[1]
We deny Browns motion for substitution of counsel (which argues that his appointed counsel provided ineffective assistance by filing a Wende brief).
DISPOSITION
The appeal is DISMISSED.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.
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[1] Like appointed counsel, we can see no merit in Browns appeal of the denial of his petition. Writs of error coram nobis are not available to correct legal errors such as those asserted by Brown, but instead where afact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, [and] [t]he remedy does not lie to enable the court to correct errors of law . . . Moreover, the allegedly new fact must have been unknown and must have been in existence at the time of the judgment. (People v. Kim (2009) 45 Cal.4th 1078, 1093.)
