Opinion
D058931
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER HOLYFIELD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRN25845)
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.
Christopher Holyfield, also known as Christopher Holmes, appeals the denial of his petition for writ of coram nobis. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and after independent review of the record, including the possible but arguable issues identified by counsel, we affirm.
For clarity, we will hereafter refer to appellant as Holyfield.
FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 1986, Holyfield was charged in an information with having committed three drug-related offenses on September 23, 1986: count 1 alleged Holyfield unlawfully transported a controlled substance, cocaine, in violation of Health and Safety Code section 11352; count 2 alleged Holyfield unlawfully possessed a controlled substance, cocaine, for sale, and purchased for purposes of sale cocaine in violation of Health and Safety Code section 11351; and count 3 alleged Holyfield unlawfully possessed a controlled substance, cocaine, in violation of Health and Safety Code section 11350, subdivision (a).
At the felony readiness conference, Holyfield, who was represented by counsel, entered a negotiated guilty plea in which he agreed to plead guilty to a violation of Health and Safety Code section 11352 (count 1), and the People agreed to dismiss the balance of the information. The "Plea of Guilty/No Contest-Felony" form that was initialed and signed by Holyfield stated Holyfield had not been induced to enter the plea by any promises or representations of any kind, except: "DA has no opposition to probation and will argue for no more than 180 days local custody. Court will consider an alternative to custody and recommend a referral to work furlough." The plea form also stated Holyfield's maximum exposure as the result of his guilty plea was four years in state prison, a $20,000 fine and 60 months parole.
At sentencing, Holyfield was granted three years summary probation on the condition he serve seven days in local custody and perform 800 hours community service, pay a $1,000 fine and $200 in victim restitution.
In early November 2010, Holyfield, who was then incarcerated in the federal penitentiary, filed a pro se petition for a writ of coram nobis with the San Diego County Superior Court. In the petition, Holyfield sought to have the superior court enter a nunc pro tunc order modifying his state drug conviction to comport with the plea agreement and sentence or, in the alternative, to vacate the plea of guilty and allow him to plead de novo. Holyfield's moving papers explained it was his understanding that when he pled guilty to transportation of a controlled substance (Health & Saf. Code, § 11352), the felony would be reduced to a misdemeanor drug possession offense, and that a clerical error occurred in the abstract of judgment. Holyfield argued the court's sentence of summary probation supports his claim that his felony was to have been reduced to a misdemeanor. He further claims that the error has resulted in prejudice to him because, in June of 2001, the federal court used his state felony drug transportation conviction to enhance a federal conviction.
Citing People v. Shipman (1965) 62 Cal.2d 226, 230, and People v. Brady (1973) 30 Cal.App.3d 81, 86-87, in its December 2010 order the trial court denied Holyfield's request for a writ of coram nobis, finding Holyfield had not satisfied the requirements for issuance of the writ and that the writ request was untimely. The trial court elaborated that the record established Holyfield had pled guilty to a violation of Health and Safety Code section 11352, a non-reducible felony. It further noted Holyfield, who admitted that he had discovered his drug conviction was a felony over nine years ago, had not shown his claims were timely or that in the exercise of reasonable diligence could not have been earlier presented.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue whether the superior court erred when it denied appellant's petition.
We granted Holyfield permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d. 436, and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Holyfield has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
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IRION, J.
WE CONCUR:
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MCCONNELL, P. J.
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AARON, J.