Filed 11/18/15 P. v. Brownlee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRENCE BROWNLEE,

Defendant and Appellant.

F069282

(Super. Ct. No. F80257140-4)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. 

Conklin, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff 

and Respondent.

-ooOoo-

 

* Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
2.

On July 7, 1980, defendant Terrence Brownlee was convicted by plea of 

second degree murder (Pen. Code, § 187; count 1) and robbery (§ 211; count 2).1 He also 

admitted a firearm use enhancement as to both counts (§ 12022.5). On appeal, he 

requests that we correct a clerical error in his abstract of judgment. The People concede 

that the record requires correction. We dismiss the appeal, but direct the trial court to 

correct the abstract of judgment.

PROCEDURAL SUMMARY

Following defendant’s plea, he was sentenced On August 4, 1980. The judgment

of commitment filed on August 21, 1980, states he was sentenced to prison for 15 years 

to life on count 1, the firearm use enhancement was to run consecutively to the sentence 

on count 1, and sentence on count 2 was stayed.

The report to judicial council of defendant’s indeterminate sentence, also filed on 

August 21, 1980, states defendant was sentenced to prison for the term prescribed by law 

on count 1, which, according to section 190, subdivision (a), was 15 years to life.

More than 32 years later, on March 15, 2013, the minute order of the August 4, 

1980, sentencing hearing was corrected. The corrected order states defendant was 

sentenced to 15 years to life on count 1, plus a two-year firearm use enhancement. The 

sentence on count 2 and its enhancement were stayed pursuant to section 654. Also on 

March 15, 2013, an amended abstract of judgment was filed. It reflects the plea to both 

counts 1 and 2, the two-year firearm use enhancement on count 1, and the stayed 

sentence and enhancement on count 2. As for the indeterminate sentence on count 1, 

both of the following boxes are checked: “LIFE WITHOUT THE POSSIBILITY OF 

PAROLE on count[] 1” and “15 years to Life on count[] 1.”

 

1 All statutory references are to the Penal Code unless otherwise noted.
3.

In March of 2014, defendant filed a petition for writ of error coram nobis in the 

trial court, stating that his judgment should be reversed because he was being 

incarcerated without any record of his plea bargain. He also filed an ex parte application 

for correction of a clerical error, which referred only to his being held without any record 

of his plea bargain.

On April 10, 2014, the trial court denied defendant’s petition for writ of error 

coram nobis on the ground that it failed to state a prima facie case for relief because 

defendant failed to establish how this fact was not known to him at the time judgment 

was pronounced. The court cited People v. Shipman (1965) 62 Cal.2d 226, which states:

“The writ of coram nobis is granted only when three requirements 

are met. (1) Petitioner must ‘show that some fact existed which, without 

any fault or negligence on his part, was not presented to the court at the trial 

on the merits, and which if presented would have prevented the rendition of 

the judgment.” [Citations.] (2) Petitioner must also show that the ‘newly 

discovered evidence ... [does not go] to the merits of issues tried; issues of 

fact, once adjudicated, even though incorrectly, cannot be reopened except 

on motion for new trial.’ [Citations.] This second requirement applies 

even though the evidence in question is not discovered until after the time 

for moving for a new trial has elapsed or the motion has been denied. 

[Citations.] (3) Petitioner ‘must show that the facts upon which he relies 

were not known to him and could not in the exercise of due diligence have 

been discovered by him at any time substantially earlier than the time of his 

motion for the writ....’ [Citations.]” (Id. at p. 230.)

On the same day, the trial court denied defendant’s ex parte application for 

correction of perceived clerical errors because defendant’s motion cited Code of Civil 

Procedure section 473, subdivision (d), which the court stated had no application to 

defendant’s criminal case.

On April 21, 2014, defendant filed a notice of appeal from the order denying the 

petition for writ of error coram nobis entered on April 10, 2014.
4.

DISCUSSION

A denial of a petition for writ of error coram nobis is not appealable unless the 

petition states a prima facie case for relief. (People v. Totari (2002) 28 Cal.4th 876, 885, 

fn. 4 [“In an appeal from a trial court’s denial of an application for the writ of error 

coram nobis, a reviewing court initially determines whether defendant has made a prima 

facie showing of merit; if not, the court may summarily dismiss the appeal.”]; People v. 

Dubon (2001) 90 Cal.App.4th 944, 950 [“A trial court’s denial of a coram nobis petition 

is an appealable order, unless the coram nobis petition failed to state a prima facie case 

for relief.”]; People v. Kraus (1975) 47 Cal.App.3d 568, 575, fn. 4 [“If the petitioner 

takes an appeal in a case where the trial court properly denied the petition summarily for 

lack of supporting statements of fact, the appellate court may summarily dismiss the 

appeal.”].)

We conclude defendant did not state a prima facie case for coram nobis relief. 

Accordingly, we dismiss the appeal. However, we direct the trial court to correct the 

clerical error in the (first amended) abstract of judgment filed on March 15, 2013, that the 

parties agree should be corrected.

DISPOSITION

The appeal is dismissed. The trial court is directed to issue an amended abstract of 

judgment that reflects defendant’s sentence on count 1 as 15 years to life (not life without 

the possibility of parole). The court is directed to forward certified copies of the 

corrected abstract to the appropriate entities.