Opinion
2d Crim. No. B233150
09-21-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL TREBAS, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F364755)
(San Luis Obispo County)
Daniel Trebas appeals an order denying his motion to vacate an October 14, 2005 judgment that determined he is a mentally disordered offender (MDO) within the meaning of Penal Code section 2960 et seq.
All further statutory references are to the Penal Code unless otherwise stated.
We appointed counsel to represent Trebas in this appeal. After examination of the record, counsel filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) On August 18, 2011, we advised Trebas that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have received a response from him contending that: 1) principles of res judicata and collateral estoppel preclude the trial court's initial MDO determination, and 2) the trial court applied an erroneous standard of proof. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case and a brief discussion of Trebas's contentions.
FACTS AND PROCEDURAL HISTORY
On October 14, 2005, the San Luis Obispo County Superior Court determined, beyond a reasonable doubt, that Trebas was an MDO within the meaning of section 2960 et seq. Trebas appealed and challenged the sufficiency of evidence to support findings that he received 90 days of treatment for a severe mental disorder or that he suffered from a qualifying mental disorder. We rejected Trebas's arguments and affirmed the trial court's judgment. (People v. Trebas (Sept. 28, 2006, B187027) [nonpub. opn.].)
Subsequently, the trial court recommitted Trebas as an MDO pursuant to sections 2962 and 2966. In 2007, we affirmed one such commitment. (People v. Trebas (June 20, 2007, B193145) [nonpub. opn.].)
Trebas recently attempted to file a petition for writ of habeas corpus with this court. On June 20, 2011, we returned the petition without filing and recommended that Trebas first seek habeas relief in the trial court.
On April 4, 2011, Trebas filed a motion to vacate the October 14, 2005 judgment, challenging the sufficiency of evidence and claiming that principles of res judicata and collateral estoppel preclude the trial court's initial MDO determination. On April 7, 2011, the trial court denied the motion to vacate on grounds of untimeliness.
DISCUSSION
Code of Civil Procedure section 663 permits a party to move to set aside a judgment where there is an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts. . . ." Code of Civil Procedure section 663a requires the party to file the motion to vacate: "1. Before the entry ofjudgment; or [¶] 2. Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest."
Trebas filed his motion to vacate more than five years following entry of judgment. The trial court properly denied the motion as untimely.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.