P. v. Gillard

Filed 5/5/06 P. v. Gillard CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County,

Michael Kellog, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Darryl C. Gillard appeals an order denying a petition for writ of error coram nobis which alleged ineffective assistance of counsel in the failure to appeal a 1987 conviction of possession for sale of a controlled substance. (Health & Saf. Code, § 11351.)

We appointed counsel to represent Gillard on this appeal. After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. Gillard has filed a supplemental opening brief in which he reiterates the claim of ineffective assistance of counsel based on the failure to appeal after Gillard directed counsel to appeal and counsel indicated he would. Gillard additionally asserts defense counsel rendered ineffective assistance in failing to contest the underlying charge on the grounds of false arrest and illegal search. Gillard further claims a federal term he currently is serving improperly was enhanced based on his conviction in this case even though the conviction was dismissed pursuant to Penal Code section 1203.4 in 1996.

Gillard's delay of almost 20 years in seeking relief precludes issuance of a writ of coram nobis based on ineffective assistance of counsel in failing to file a notice of appeal or in failing to seek suppression of the evidence against him. (People v. Shorts (1948) 32 Cal.2d 502, 512-513.) Additionally, because Gillard pleaded guilty, his appeal would have been dismissed as inoperative. (In re Chavez (2003) 30 Cal.4th 643, 649-651; People v. Mendez (1999) 19 Cal.4th 1084, 1096-1097; Pen. Code, § 1237.5.) Regarding the enhancement of his federal term, Penal Code section 1203.4, subdivision (a), expressly provides that dismissal of an accusatory proceeding pursuant to that statute does not prevent use of the prior conviction in subsequent prosecutions.^[1] In sum, the claims raised by Gillard uniformly fail.

We have examined the entire record and are satisfied Gillard's counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The order denying Gillard's petition for writ of error coram nobis is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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^[1] Specifically, Penal Code section 1203.4, subdivision (a), provides, in part: â€