P. v. Quintanilla
Filed 7/6/06 P. v. Quintanilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| THE PEOPLE, Plaintiff and Respondent, v. CARLOS QUINTANILLA, Defendant and Appellant. | B187472 (Los Angeles County Super. Ct. No. BA124004) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Marshal N. Revel, Judge. Dismissed.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Carlos Quintanilla appeals the denial of a writ of error coram nobis in which he challenged the finding, made in 1999, that a prior conviction of discharging a firearm in a grossly negligent manner in violation of Penal Code section 246.3 constituted a strike within the meaning of the Three Strikes law. (Pen. Code, §§ 667, subs. (b)-(i), 1170.12.)[1]
We appointed counsel to represent Quintanilla 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. Quintanilla has filed a supplemental opening brief in which he reiterates the contentions raised in his writ petition. We find an appeal does not lie from the denial of Quintanilla's petition for writ of error coram nobis because it amounts to an untimely motion to vacate the judgment and, in any event, Quintanilla's claim of error is meritless.
FACTUAL AND PROCEDURAL BACKGROUND
In February 1999, the trial court sentenced Quintanilla, upon his conviction of assault with a firearm, to a third strike term of 25 years to life in prison based, in part, on the finding Quintanilla's 1995 conviction of discharging a firearm in a grossly negligent manner in violation of section 246.3 constituted a serious felony conviction because Quintanilla personally used a firearm in the commission of the offense. (§ 1192.7, subd. (c)(8).) The trial court based the finding that Quintanilla personally used a firearm on evidence contained in the transcript of the preliminary hearing. (See People v. Woodell (1998) 17 Cal.4th 448, 452; People v. Reed (1996) 13 Cal.4th 217, 220.)
In October of 2005, Quintanilla filed the instant petition for writ of error coram nobis in the trial court attacking the 1999 finding that the conviction of a violation of section 246.3 constituted a prior serious felony conviction. Quintanilla argued the use of a firearm is not an element of a violation of section 246.3 and Quintanilla did not admit the personal use of a firearm when he pleaded guilty to that offense. Rather, the allegation of personal use of a firearm was dismissed as part of a plea bargain.
The trial court denied the writ petition and this appeal followed.
DISCUSSION
1. Quintanilla's claim is not cognizable on appeal from the denial of a petition for writ of error coram nobis.
A petition for writ of error coram nobis is the equivalent to a motion to vacate the judgment, and â€
