People v. McElwee
Decision Date | 06 April 2005 |
Docket Number | No. B177372.,B177372. |
Citation | 27 Cal.Rptr.3d 448,128 Cal.App.4th 1348 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Dwayne McELWEE, Defendant and Appellant. |
John F. Schuck, under appointment by the Court of Appeal, Palo Alto, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
Dwayne McElwee appeals from an order of the superior court denying a writ of error coram nobis. For reasons explained in the opinion, we affirm the order.
On April 20, 2004, McElwee filed a petition for writ of error coram nobis to vacate the judgment entered against him on March 5, 1984. McElwee asserted in the petition that on March 5, 1984, pursuant to a plea bargain, he pled guilty to second degree murder for the murder of Gary Morris committed September 30, 1981, a lesser offense to the charged crime of first degree murder. As part of the bargain, a firearm use allegation was stricken. McElwee was sentenced to an indeterminate term of 15 years to life in prison. On February 4, 2004, the Board of Prison Terms held a subsequent parole hearing and Deputy District Attorney Dave Dahle argued against a parole date. . . . McElwee asserted by these actions the deputy district attorney subverted and circumvented the basis of the plea bargain. McElwee claimed he gave the state the substantial benefit of a murder conviction without protracted proceedings when he waived any defenses, i.e. those predicated on such facts as diminished capacity because he had been under the influence of PCP and such a defense was available for crimes committed in September 1981.
The California Board of Prison Terms concluded appellant was not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released. It stated the primary reason for the denial was the manner in which the crime was carried out, that it showed an obvious disregard another human being's life. The Board in its decision recited the facts of the murder.
In denying the petition for a writ of error coram nobis, the superior court observed
(People v. Ibanez (1999) 76 Cal.App.4th 537, 544, 90 Cal. Rptr.2d 536.) ...
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