P. v. Elder

Filed 7/23/07 P. v. Elder CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Arthur Jean, Jr., Judge. Affirmed.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

.

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In 1998, appellant Roderick C. Elder was charged with a violation of Health and Safety Code section 11350, subdivision (a), possession of cocaine. The information also alleged that he had suffered three prior felony convictions within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and one prior felony conviction within the meaning of Penal Code section 667.5, subdivision (b). A jury convicted appellant of the Health and Safety Code violation, and the court found true two of the strike priors, including a conviction for violation of Penal Code section 459, in Case No. A617997. Appellant was sentenced to 25 years to life. He appealed, and in June 2000, we affirmed.

In August of 2006, appellant filed a writ of coram nobis, contending that

his conviction in A617997 did not qualify as a strike conviction, because it was a reduced to a misdemeanor on completion of probation. In support, he attached a June 27, 1985 minute order in that case which stated "Defendant to report to Probation Department upon release from County Jail. Probation to continue 30 days after jail sentence served. Thereafter, probation may terminate, offense reduced to misdemeanor and case dismissed per 1203.4 Penal Code."

The writ was denied by the trial court. This appeal followed. We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 441.) Counsel advised appellant that he intended to file such a brief and advised appellant that he could submit a supplemental brief in his own behalf. We similarly advised appellant.

We received a supplemental brief from appellant. In it, he contends that the conviction in A617997 did not qualify as a strike because it was reduced to a misdemeanor, that he was denied a right to jury trial on the prior convictions, and that the court abused its discretion when it refused to strike one of the prior strike convictions.

In our June 2000 opinion, we considered and rejected appellant's contentions regarding the jury trial and the court's refusal to strike one of his priors. Our opinion disposed of those questions, which cannot be raised again in a coram nobis proceeding. (People v. Del'Marmol (1952) 112 Cal.App.2d 409 [coram nobis does not lie for claims which could have been presented on appeal]; People v. Pryor (1948) 87 Cal.App.2d 352 [coram nobis not intended to authorize court to review its opinions but to enable it to recall "adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court."].)

In the appeal, appellant also challenged the finding on his prior conviction in A617997, although he did not contend that it had been reduced to a misdemeanor. We can see no evidence that it was, and thus find no error in the denial of the writ of coram nobis.

Disposition

The judgment is affirmed.

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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