People v. Cabrera, H033966 (Cal. App. 12/1/2009)
| Decision Date | 01 December 2009 |
| Docket Number | H033966 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAIME LEGORRETA CABRERA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Santa Clara County, Super. Ct. No. 150430.
Not to be Published in Official Reports
Jaime Cabrera (defendant) appeals from the denial of his "Corum Nobis"petition. We appointed counsel to represent him on appeal. Counsel filed a brief that set forth the facts and procedural history of the case. Counsel presented no argument for reversal but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. On September 2, 2009, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
We have reviewed the entire record and find no error in the trial court's order. Therefore, we affirm the order.
On September 27, 1991, defendant was convicted of possession for sale of cocaine (Health & Saf. Code, § 11351), possession for sale of marijuana (Health & Saf. Code, § 11359), and being under the influence of a controlled substance (Health & Saf. Code, § 11550).
The facts of defendant's underlying convictions are scant. The only reference this court can find to the underlying offenses in the record before us can be found in a petition to modify probation. It appears that on
On May 21, 2007, defendant, in propria persona, filed a document entitled "Petitioner's Motion for Order of Vacatur `Nunc Pro Tunc.'" Defendant stated that he was in federal custody in Iowa serving a life sentence. In the petition, in essence, defendant alleged that his guilty plea in his 1991 case in Santa Clara County was involuntary and requested that the judgment of conviction be vacated nunc pro tunc. In a sworn declaration, defendant declared that the arresting officer had physically abused him and had warned him not to "`fight . . . the charges . . . or else'" Defendant suggested that he was not represented by defense counsel.
On June 19, 2007, the trial court issued a brief written order denying appellant's motion. The court cited to this court's decision in People v. Kim (2007) 150 Cal.App.4th 1158, in which we held among other things that a defendant cannot bring a nonstatutory motion to vacate a conviction based on ineffective assistance of counsel. (Id. at pp. 268-270)1
Subsequently, on January 21, 2009, defendant filed a "Corum Nobis" petition. This time, appellant requested that the trial court "rehear" his claim of actual innocence and "[r]esentence at worst to actual crime, personal use to Cal. Pen. Code 11350 . . . ." In a rambling motion, defendant assigned the following errors in support of his petition: 1) denial of assistance of counsel; 2) an involuntary and unknowing plea; 3) "buyer seller"—which we interpret to be a claim that there was insufficient evidence of possession with intent to sell; 4) the conviction was supported by "unreliable hearsay"; 5) unreliable expert testimony; 6) an illegal search and/or seizure in violation of the Fourth Amendment to the United States Constitution; and 7) invalid conviction under the United States Supreme Court's decision in Apprendi v. New Jersey (2000) 530 U.S. 466.
On February 20, 2009, the trial court denied the petition. In so doing, the court noted that the abstract of judgment from defendant's 1991 case reflected that defendant was represented by counsel. Furthermore, defendant's remaining claims were precluded at such late date by People v. Chien (2008) 159 Cal.App.4th 1283.
Having reviewed the entire record, we find there are no arguable issues on appeal.
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