(Super. Ct. Nos. 09F07698, CR77767 & CR90219)
The opinion of the court was delivered by: Blease, Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On October 2, 1986, a detective bought $25 of rock cocaine from appellant Troy Donahue Barron. In April 1987, appellant pled guilty to selling rock cocaine (Health & Saf. Code, § 11352) and was sentenced to four years in prison in case No. 77767. On March 23, 1989, an informant purchased rock cocaine from appellant. Appellant pled guilty to selling rock cocaine (Health & Saf. Code, § 11352) and was sentenced to four years in prison in case No. 90219. In 1999, the convictions were used to enhance appellant's sentence in federal district court following convictions for conspiracy to distribute cocaine base (21 U.S.C. §§ 846, 841), five counts of distribution of cocaine base (21 U.S.C. § 841), and four counts of distribution of cocaine base near a school (21 U.S.C. § 860).
On September 18, 2009, appellant filed a petition for writ of error coram nobis in the trial court challenging his 1986 and 1989 convictions. In his writ petition, appellant alleged that he was factually innocent of the crimes, his pleas in the prior cases violated Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274], ineffective assistance of trial counsel, his criminal record should be sealed under the "Youthful Offender Act," and the prior convictions should be reduced to misdemeanors.
On November 9, 2009, the trial court construed appellant's coram nobis petition as a petition for writ of habeas corpus and, after analysis of each of his claims, denied the petition for failure to show he is entitled to any relief.
Appellant filed a motion for reconsideration on December 7, 2009. Appellant's motion noted he had filed a petition for writ of error coram nobis, and habeas corpus was improper because California did not have custody over him. The trial court construed this as a "petition for writ of habeas corpus/coram nobis," which it denied on January 4, 2010.
Appellant filed a notice of appeal on February 10, 2010.
Appellant's appeal is timely. A party has 60 days from receiving notice of entry of judgment from the trial court to file notice of appeal. (Cal. Rules of Court, rule 8.308(a).) While appellant's notice of appeal would be untimely with respect to the November 9 order, his notice of appeal is timely from the trial court's second order, the January 4 denial of his coram nobis petition.
Ordinarily, a motion for reconsideration will not extend the time for filing a notice of appeal. However, appellant's motion for reconsideration was not dilatory. The motion reminded the trial court it had misconstrued appellant's initial petition and there were substantive differences between habeas corpus and coram nobis. We conclude that appellant can appeal from the trial court's order following the motion for reconsideration.
The denial of a petition for a writ of error coram nobis is appealable. (Pen. Code, § 1237, subd. (b); People v. Shorts (1948) 32 Cal.2d 502, 506-507.) We affirm unless the trial court abused its discretion in denying relief. (People v. Painter (1963) 214 Cal.App.2d 93, 99; People v. Devora (1951) 105 Cal.App.2d 457, 463.)
We appointed counsel to represent appellant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Appellant was advised by counsel of the right to ...