P. v. Neasman

Filed 6/21/06 P. v. Neasman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. (Retired Judge of the Superior Court, sitting under assignment by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Appellant Eddie Neasman appeals from an order of the San Bernardino County Superior Court denying his petition for a writ of error coram nobis which he filed in propria persona.

Appellant was convicted by jury in 1991 of murder in the first degree (Pen. Code, § 187, subd. (a))^[1] and received a sentence of 25 years to life.

Appellant has appealed from the denial of his petition, and we appointed counsel to represent him. Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case and procedural facts, suggesting potential issues on appeal and asking this court to undertake an independent review of the entire record.

We provided appellant with an opportunity to file a personal supplemental brief. He has done so and denominated it as a motion for judicial notice. We have read and considered it. It is part of the record; therefore, we need not take judicial notice of it.

While it appears that the court was somewhat confused as to the issue appellant presented to the trial court in his petition, it is clear to us that in reviewing the issue in the appeal de novo, appellant is contending, as he did below, that when the Legislature enacted the determinate sentencing law (§ 1170 et seq.) in 1976, it repealed the indeterminate sentencing law (§ 1168). Therefore, he contends that it was error for the sentencing court to sentence him to a life term with possibility of parole and that his sentence was unlawful. He contends that he is entitled to a fixed term of years with a certain parole date rather than having parole hearings with no date certain for parole.

Appellant's contention that the Legislature repealed indeterminate sentencing altogether is simply wrong. Section 1170, subdivision (a)(3) provides in part that â€