THE PEOPLE v. ALBERTO GUTIERREZ (2011)

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ALBERTO GUTIERREZ, Defendant and Appellant.

B230888

Decided: August 16, 2011

Defendant and appellant Alberto Gutierrez appeals from the denial of his petition for writ of coram nobis to vacate his plea. Appellant was convicted for possession for sale of a controlled substance (Health & Saf.Code, § 11351) following a no contest plea. Initially, the execution of his two-year sentence was suspended and he was placed on formal probation for three years. Following a probation violation hearing, the trial court revoked his probation and imposed the two-year prison sentence. Thereafter, the trial court ruled that appellant had knowingly and voluntarily waived his rights in connection with his plea. We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. On May 26, 2011, we advised appellant that he had 30 days within which to personally submit by brief or letter any contentions or arguments that he wished us to consider. On June 27, 2011, appellant filed a supplemental brief together with his affidavit and two exhibits. An information filed in July 2000 charged appellant in count 1 with possession of the ingredients to make a destructive device (Pen.Code, § 12312), in count 2 with possession for sale of a controlled substance (Health & Saf.Code, § 11351) and in count 3 with possession of marijuana for sale (Health & Saf.Code, § 11359). Appellant originally pled not guilty. On September 1, 2000, after being advised of his rights and knowingly, understandingly and explicitly waiving those rights, appellant withdrew his plea and pled no contest to count 2. The trial court accepted his plea and dismissed counts 1 and 3. It sentenced appellant to the low term of two years, suspended execution of the sentence and placed appellant on formal probation for three years. On December 17, 2004, an outstanding bench warrant for appellant was recalled. Appellant, who appeared in court from federal prison, waived his right to an attorney for the probation violation hearing, and the trial court found him in violation of his probation. The trial court revoked his probation and imposed the previously suspended two-year sentence to run concurrently with any sentence he was currently serving.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In October 2010, appellant filed a petition for writ of coram nobis seeking to vacate his no contest plea on the ground that he did not intelligently and voluntarily waive his rights because he was inadequately advised of his rights, he was not under oath and he was on medication for a prior injury. In his petition, he represented that the reporter's transcript from his plea hearing had been destroyed.

The trial court held a hearing on appellant's petition in November 2010 and, on the basis of the minute order from appellant's plea hearing, denied the petition. The trial court ruled: “The minute order indicates petitioner was represented by an attorney, and that the court found that the waivers given during the taking of the plea were knowingly, understandingly, and explicitly made.” Appellant appealed from the denial of his petition.

We have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.) We have also reviewed appellant's supplemental brief, together with his affidavit and exhibits. We find no merit to appellant's suggestion that he intended to plead no contest to count 3 rather than count 2. Though there was some discussion at appellant's probation violation hearing that a minute order contained an error by referring to count 3, as the trial court acknowledged, both the minute order from appellant's plea and the abstract of judgment properly reflect appellant's plea to count 2. Moreover, we cannot consider the other issues that appellant has raised concerning his mental and physical state at the time of his plea as they involve matters outside the scope of the record. (E.g., People v. Szeto (1981) 29 Cal.3d 20, 35.)

The order denying appellant's petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

FOOTNOTES

FOOTNOTE.

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