Opinion
F049613
12-7-2006
THE PEOPLE, Plaintiff and Respondent, v. GORDON MITCHELL WILKIN, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Harris, Acting P.J., Wiseman, J., and Levy, J.
Appellant, Gordon Wilkin, pled guilty to one count of lewd and lascivious conduct with a child under the age of 14 (Pen Code, § 288, subd. (a)). On April 19, 2001, the court placed appellant on probation for seven years.
Following a hearing, on March 23, 2004, the court found that Wilkin violated his probation.
On March 26, 2004, the court sentenced Wilkin to prison for the middle term of six years.
On June 25, 2004, Wilkin filed an appeal that was rejected as untimely.
On July 7, 2004, Wilkin filed a motion to modify his sentence.
On July 8, 2004, the court denied Wilkins motion for modification of sentence.
On August 11, 2004, Wilkin filed a request for an appeal from the trial courts denial of his motion for modification of sentence. On that same date, the trial court treated Wilkins request as a notice of appeal.
On April 19, 2005, this court affirmed the judgment (case No. F046110).
On December 12, 2005, Wilkin filed a petition for writ of error coram nobis in the trial court.
On December 19, 2005, the court denied Wilkins petition.
Wilkins appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a "supplemental brief" filed on August 10, 2006, Wilkin contends: (1) he was denied his right to appeal the courts finding that he violated his probation; and (2) the court abused its discretion when it revoked his probation.
Wilkins request for judicial notice of the record in the violation of probation proceedings is hereby denied.
Wilkins instant appeal encompasses only the courts denial of his petition for a writ of error coram nobis.
"`A writ of error coram nobis is reviewed under the standard of abuse of discretion. [Citation.] [Citation.] `A writ of coram nobis permits the court which rendered judgment" to reconsider it and give relief from errors of fact." [Citation.] The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.] [Citation.] `"The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]" [Citation.] [Citation.]" (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.)
Wilkins supplemental brief does not address any of the above-noted elements or attempt to explain why he believes the court abused its discretion when it denied his petition for a writ of error coram nobis. Further, the issues he raises do not relate to the order appealed from, i.e., the courts denial of Wilkins petition. Accordingly, we conclude that there is no merit Wilkins contentions.
Further, following independent review of the record we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.