Filed 11/18/15 P. v. Brownlee CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069282
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. F80257140-4)
                   v.

TERRENCE BROWNLEE,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-




         *   Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
       On July 7, 1980, defendant Terrence Brownlee was convicted by plea of
second degree murder (Pen. Code, § 187; count 1) and robbery (§ 211; count 2).1 He also
admitted a firearm use enhancement as to both counts (§ 12022.5). On appeal, he
requests that we correct a clerical error in his abstract of judgment. The People concede
that the record requires correction. We dismiss the appeal, but direct the trial court to
correct the abstract of judgment.
                               PROCEDURAL SUMMARY
       Following defendant’s plea, he was sentenced On August 4, 1980. The judgment
of commitment filed on August 21, 1980, states he was sentenced to prison for 15 years
to life on count 1, the firearm use enhancement was to run consecutively to the sentence
on count 1, and sentence on count 2 was stayed.
       The report to judicial council of defendant’s indeterminate sentence, also filed on
August 21, 1980, states defendant was sentenced to prison for the term prescribed by law
on count 1, which, according to section 190, subdivision (a), was 15 years to life.
       More than 32 years later, on March 15, 2013, the minute order of the August 4,
1980, sentencing hearing was corrected. The corrected order states defendant was
sentenced to 15 years to life on count 1, plus a two-year firearm use enhancement. The
sentence on count 2 and its enhancement were stayed pursuant to section 654. Also on
March 15, 2013, an amended abstract of judgment was filed. It reflects the plea to both
counts 1 and 2, the two-year firearm use enhancement on count 1, and the stayed
sentence and enhancement on count 2. As for the indeterminate sentence on count 1,
both of the following boxes are checked: “LIFE WITHOUT THE POSSIBILITY OF
PAROLE on count[] 1” and “15 years to Life on count[] 1.”




       1   All statutory references are to the Penal Code unless otherwise noted.


                                              2.
       In March of 2014, defendant filed a petition for writ of error coram nobis in the
trial court, stating that his judgment should be reversed because he was being
incarcerated without any record of his plea bargain. He also filed an ex parte application
for correction of a clerical error, which referred only to his being held without any record
of his plea bargain.
       On April 10, 2014, the trial court denied defendant’s petition for writ of error
coram nobis on the ground that it failed to state a prima facie case for relief because
defendant failed to establish how this fact was not known to him at the time judgment
was pronounced. The court cited People v. Shipman (1965) 62 Cal.2d 226, which states:

               “The writ of 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….’ [Citations.]” (Id. at p. 230.)
       On the same day, the trial court denied defendant’s ex parte application for
correction of perceived clerical errors because defendant’s motion cited Code of Civil
Procedure section 473, subdivision (d), which the court stated had no application to
defendant’s criminal case.
       On April 21, 2014, defendant filed a notice of appeal from the order denying the
petition for writ of error coram nobis entered on April 10, 2014.




                                              3.
                                       DISCUSSION
       A denial of a petition for writ of error coram nobis is not appealable unless the
petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885,
fn. 4 [“In an appeal from a trial court’s denial of an application for the writ of error
coram nobis, a reviewing court initially determines whether defendant has made a prima
facie showing of merit; if not, the court may summarily dismiss the appeal.”]; People v.
Dubon (2001) 90 Cal.App.4th 944, 950 [“A trial court’s denial of a coram nobis petition
is an appealable order, unless the coram nobis petition failed to state a prima facie case
for relief.”]; People v. Kraus (1975) 47 Cal.App.3d 568, 575, fn. 4 [“If the petitioner
takes an appeal in a case where the trial court properly denied the petition summarily for
lack of supporting statements of fact, the appellate court may summarily dismiss the
appeal.”].)
       We conclude defendant did not state a prima facie case for coram nobis relief.
Accordingly, we dismiss the appeal. However, we direct the trial court to correct the
clerical error in the (first amended) abstract of judgment filed on March 15, 2013, that the
parties agree should be corrected.
                                       DISPOSITION
       The appeal is dismissed. The trial court is directed to issue an amended abstract of
judgment that reflects defendant’s sentence on count 1 as 15 years to life (not life without
the possibility of parole). The court is directed to forward certified copies of the
corrected abstract to the appropriate entities.




                                              4.
