Filed 8/31/17 P. v. Gipson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. HAROLD LYNN GIPSON, Defendant and Appellant.

A149033 (Solano County Super. Ct. No. VCR189342)

INTRODUCTION

In this appeal, counsel for defendant has filed a declaration stating she has reviewed the record in this case and decided to file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. She has written defendant and advised him of this conclusion. Counsel advised defendant he may file a supplemental brief with this court raising any issues Gipson believes should be presented. More than 30 days have passed and no supplemental brief has been received.

However, as an appellate court, we elect not to consider this as a Wende appeal. Instead, we find the particular issues presented here allow us to conclude the matter is improperly before us and we therefore dismiss the pending appeal.

DISCUSSION

In the original proceeding of this matter, Harold Gipson was tried and convicted after a jury trial of the crime of first degree murder with the personal use of a firearm in the commission of the murder (Pen. Code, §§ 187, 12022.53). We affirmed the conviction after briefing and oral argument in the matter on April 8, 2013 (People v. Gipson (Apr. 8, 2013, A130887) [nonpub. opn.]). A petition for review before the California Supreme Court was denied on June 12, 2013 (People v. Gipson, S210543). The remittitur was issued on June 14, 2013, and the case was completed on the same day.

On June 28, 2016, Harold Gipson filed a petition for writ of error coram nobis in the Superior Court of Solano, the county where he was originally tried. In the petition, Gipson alleged his due process rights were violated because the statements of witnesses provided the police were inconsistent with their testimony at trial. He contended the use of prior statements violated his right of confrontation under the Sixth Amendment. The entire petition by Gipson consists of two handwritten pages.

On June 28, 2016, the trial court issued the following order denying the writ: “The Court has read and considered the Defendant HAROLD LYNN GIPSON’S motion for Judicial Notice, Petition for Writ of Error Coram Nobis and request for evidentiary hearing. [¶] IT IS HEREBY ORDERED that Defendant’s requests are DENIED.” On July 12, 2016, Gipson filed his notice of appeal.

Appellant presents this appeal as a petition for writ of coram nobis. However, it really is an effort to have this court reexamine in a subsequent or collateral attack issues he had previously challenged in a proper direct appeal. That direct appeal was resolved and nothing is presented here meriting a second review. An appellant cannot employ a Wende brief to review issues adjudicated in a direct appeal. (People v. Serrano (2012) 211 Cal.App.4th 496, 503.) The court in Serrano correctly decided a subsequent appeal should be dismissed because the appellant fails to raise any new claim of error, even though he identifies this matter as a “collateral attack[] on the judgment.” (Ibid.) We agree with the position adopted by the Sixth District in Serrano, and apply it to this situation.

Additionally, even if we were to review the petition here, we would find the writ of coram nobis does not apply to a claim addressing alleged errors of law. (People v. Lumbley (1937) 8 Cal.2d 752, 760; People v. Banks (1959) 53 Cal.2d 370, 378.)

DISPOSITION

The appeal in the above-captioned case is dismissed.