Filed 9/8/17 P. v. Sandoval CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Appointed counsel for defendant Robert Sandoval asks this court to review the record to determine if there are any arguable issues in this appeal from the denial of defendant’s petition for writ of error coram nobis. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

I. BACKGROUND

In February 2000, defendant was convicted of attempted murder (Pen. Code, § 664/187)[1] and assault with a firearm (§ 245, subd. (b)) with gang (§ 186.22, subd. (a)) and personal use of a firearm (§ 12022.5, subd. (a)) enhancements. He was sentenced to 21 years in state prison.

On September 12, 2016, defendant filed a petition for writ of error coram nobis asserting California’s felony murder rule was unconstitutional under the United States Supreme Court’s decision in Johnson v. United States (2015) ___ U.S. ___ [192 L.Ed.2d 569]. The trial court denied the petition.

II. DISCUSSION

Counsel filed an opening brief setting forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief in which he asserts his personal use of a firearm enhancement cannot stand because he used a gun to commit the attempted murder.

“The seminal case setting forth the modern requirements for obtaining a writ of error coram nobis is People v. Shipman (1965) 62 Cal.2d 226. There we stated: ‘The writ of [error] coram nobis is granted only when three requirements are met. (1) Petitioner must “show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.” [Citations.] (2) Petitioner must also show that the “newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.” [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner “must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ. . . .” ’ (Id. at p. 230.)” (People v. Kim (2009) 45 Cal.4th 1078, 1092-1093.)

Defendant’s claim does not satisfy any of the requirements for a writ of error coram nobis. We accordingly reject his claim.

Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

MAURO, J.