P. v. Johnson CA6

Filed 7/30/13 P. v. Johnson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038877 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 151534)

v.

KURT JOHNSON,

Defendant and Appellant.

In 1992, defendant Kurt Johnson was convicted of a variety of securities-related offenses. His conviction was affirmed by this court in case number H010941.1 On April 23, 2012, appellant filed a petition for writ of error coram nobis. On May 4, 2012, the trial court denied his petition. After a motion for relief from default was granted by this court, appellant filed a notice of appeal based on the denial of the petition. On appeal, we appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) which states the case and the facts but raises no specific issues. Wende review is only available in a first appeal of right. (People v. Serrano (2012) 211 Cal.App.4th 496, 501 (Serrano).)

1 By order dated February 4, 2013, this court took judicial notice of the opinion filed in People v. Johnson et al. (H010941, filed Dec 27, 1995.)

Because defendant’s appeal is from an order after judgment, and not a first appeal of right, he is not entitled to Wende review. (Ibid.) Therefore, we will proceed with this appeal pursuant to the standard we enunciated in Serrano. Pursuant to Serrano, on March 14, 2013, we notified defendant of his right to submit written argument in his own behalf within 30 days. After extensions of time were granted, we received a letter from defendant on June 13, 2013. In his letter defendant contends he is no longer in custody on this conviction, but is instead in Federal custody without access to California law. Defendant appears to raise instructional issues, issues related to the scienter requirements of the statutes under which he was convicted, and claims relating to sufficiency of the evidence. Defendant claims the errors made in his trial were not harmless. These issues were raised and considered in defendant’s first appeal of right, and the judgment was affirmed. Nothing in defendant’s letter raises any arguable issues on appeal from an order denying a petition for writ of error coram nobis. Therefore, we decline to retain the appeal. The appellant having failed to raise any arguable issue on appeal, we dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)