Opinion
B198329
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL CARRILLO, Defendant and Appellant.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Miguel Angel Carrillo (appellant) pled nolo contendere in January 1998 to two counts of robbery and one count of carjacking, with admissions to the use of a firearm and that a principal was armed with a firearm. (Pen. Code, §§ 211, 215, subd. (a), 12022.5, subd. (a), 12022, subd. (a)(1).) The trial court imposed a 15-year prison term. About a year later, the trial court discovered that it had failed to sentence appellant for the principal-armed finding after the admission, and it entered a new order modifying judgment by adding a consecutive one-year term for the finding of a principal-armed, increasing appellants aggregate term in state prison to 16 years. Appellant made several attempts in the trial court to challenge the order, but his requests to reduce his aggregate term were denied. Eventually, the Supreme Court ordered relief. On February 14, 2007, the trial court granted the petition for a writ of habeas corpus, ordered the one-year term previously imposed for the principal-armed finding stayed pursuant to section 1170.1, subdivision (f), and thereby reduced appellants state prison term to 15 years.
All further statutory references are to the Penal Code unless otherwise indicated.
Although appellant was not aggrieved, he appealed from the order of February 14, 2007. On appeal, he raises a contention unrelated to the order appealed from: the trial court committed Cunningham error (Cunningham v. California (2007) 549 U.S. 270 (Cunningham)) at his original sentencing.
The order of February 14, 2007, is not an appealable order, and the appeal must be dismissed.
We deem the appeal to be a petition for a writ of habeas corpus.
The petition for a writ of habeas corpus is denied because appellants judgment was final in 1998, prior to the decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the rule announced in those cases and applied to Californias determinate sentencing law by the decision in Cunningham.
FACTS
In 1998, pursuant to a plea bargain, appellant Miguel Angel Carrillo entered his pleas to the three offenses above, which were alleged in a five-count information, and he admitted that a principal was armed during the commission of the offense and that he had personally used a firearm. These offenses were alleged to have occurred in 1996. There was no promise as to sentence, except that the maximum term in this particular case was 17 years eight months after count 1 was dismissed.
This court has taken judicial notice of this courts file in the petition for a writ of habeas corpus, In re Miguel Angel Carrillo, B192786, as well as the guilty plea proceedings and amended information in the Los Angeles Superior Court file, People v. Miguel Angel Carrillo, No. BA137106.
On January 30, 1998, he was sentenced to an aggregate 15-year term in state prison, consisting of an upper term for the count 5 robbery, aggravated by an upper term of 10 years for the personal use of a firearm, and concurrent lesser terms for his two other convictions. At sentencing, the trial court imposed the 15-year prison term without mentioning the principal-armed admission and finding. Also, in recording the judgment, the clerk mistakenly indicated in its January 30, 1998, minute order and the abstract of judgment that the trial court had enhanced the five-year term for the count 5 robbery with a 10-year term pursuant to "12022A1." The 10-year enhancement, however, was attributable to his use of a firearm. (§ 12022.5, subd. (a).)
On March 25, 1999, with appellant present, the trial court read and considered a letter sent to it by the Department of Corrections and Rehabilitation that brought to its attention the clerical and sentencing error. The trial court corrected the unauthorized term by imposing an additional, consecutive one-year term for the principal-armed finding, making the total term 16 years. On March 20, 2001, April 13, 2006, and June 26, 2006, appellant filed requests for a reduction in his term by one year to conform to his original sentence.
Following the denial of his June 26, 2006, request for relief, deemed by the trial court to be a petition for a writ of habeas corpus, appellant filed a petition for a writ of habeas corpus in this court and a petition for review in the Supreme Court, In re Miguel Angel Carrillo, respectively, B192786 and S147320. Appellants request was limited to asserting that he was entitled to a reduction of his aggregate 16-year prison term to 15 years.
On November 29, 2006, the Supreme Court ordered this court to issue an order returnable in the superior court requiring the Director of the California Department of Corrections and Rehabilitation to appear and to show cause why appellant was not entitled pursuant to section 1170.1, subdivision (f), to have the additional one-year term for the principal-armed enhancement ordered stayed. On December 7, 2006, this court issued that order.
On February 14, 2007, the superior court granted the petition for a writ of habeas corpus and ordered a stay of the one-year principal-armed enhancement that had been added to his term on March 25, 1999, making the total state prison term once again 15 years.
DISCUSSION
It is well settled that with respect to a criminal defendant, an appeal does not lie from an order granting or denying his petition for a writ of habeas corpus. (§§ 1560, 1237; In re Stewart (1974) 10 Cal.3d 902, 906; In re Chessman (1955) 44 Cal.2d 1, 5-6; In re Zany (1913) 164 Cal. 724, 726-731; People v. Gallardo (2000) 77 Cal.App.4th 971, 986; People v. Garrett (1998) 67 Cal.App.4th 1419, 1421-1422.) Furthermore, appellant never raised a Cunningham issue during his attempts to correct the March 25, 1999, one-year increase in the aggregate term of imprisonment. Thus, the Cunningham issue was outside the scope of the issues attendant to the entry of February 14, 2007, order.
In support of his claim of a statutory right to file the appeal, appellant cites the decisions in People v. Wax (1972) 24 Cal.App.3d 302, 304, In re Caffey (1968) 68 Cal.2d 762, 765, footnote 3, and People v. Benn (1972) 7 Cal.3d 530, 535. However, we decline to follow these decisions for the reasons set out in the decisions in People v. Gallardo, supra, 77 Cal.App.4th at pp. 980-983, and People v. Garrett, supra, 67 Cal.App.4th at pp. 1421-1423.
Also, contrary to appellants claim, there was no "resentencing" here. The order the superior court entered on February 14, 2007, modified the judgment by eliminating or striking a one-year term belatedly engrafted onto the original aggregate term well after the period of appeal had elapsed following the imposition of the original sentence. After the Supreme Court determined that the belated imposition of the one-year term was unauthorized, there was no restructuring of the entire term of imprisonment, nor any change in the upper terms of imprisonment that constituted the primary elements of the original sentence.
Because the order of February 14, 2007, is not an appealable order, this appeal must be dismissed. Nevertheless, we deem the appeal a petition for a writ of habeas corpus and address petitioners Apprendi-Cunningham claim.
Citing the decisions in Apprendi and Cunningham, petitioner asserts that he is entitled to have his upper, five-year term for the robbery in count 5 and the upper, 10-year term imposed for the firearm use enhancement reduced to middle terms of imprisonment.
The issue of Cunninghams retroactivity is presently pending before the California Supreme Court in In re Gomez, review granted October 24, 2007, S155425, and In re Saade, review granted August 20, 2008, S164595.
However, as far as this court is aware, appellant did not file an appeal after the January 30, 1998, judgment, and the judgment became final in 1998. (Beard v. Banks (2004) 542 U.S. 406, 411 [state convictions are final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied].)
There is no authority for applying the decisions in Apprendi, Blakely, and Cunningham retroactively to judgments that are final prior to the date on which Apprendi was filed, i.e., on June 26, 2000. (Schriro v. Summerlin (2004) 542 U.S. 348, 352 [Ring v. Arizona (2002) 536 U.S. 584 does not apply retroactively to cases already final on direct review]; Butler v. Curry (9th Cir. 2008) 528 F.3d 624, 639 [Cunningham does not apply to cases that are final prior to the decision in Blakely, which was filed on June 24, 2004]; Schardt v. Payne (9th Cir. 2005) 414 F.3d 1025, 1036-1038 [Blakely will not be applied retroactively to judgments final at the time of that decision]; United States v. Sanchez-Cervantes (9th Cir. 2002) 282 F.3d 664, 671 [Apprendi is not retroactive to judgments final prior to June 26, 2000]; In re Consiglio (2005) 128 Cal.App.4th 511, 514 [Blakely]; People v. Amons (2005) 125 Cal.App.4th 855, 864-870 [Blakely]; cf. Danforth v. Minnesota (2008) 552 U.S. ___ [169 L.Ed.2d 859, 128 S. Ct. 1029, 1033] [holding that as to federal constitutional decisions, the states are free to adopt a standard providing greater retroactivity than is available under Teague v. Lane (1989) 489 U.S. 288].) Consequently, there is no merit to his claim, and we summarily deny the petition.
DISPOSITION
The appeal is dismissed. The appeal is deemed to be a petition for a writ of habeas corpus. For the reasons stated above, we deny the petition as it fails to establish a prima facie case entitling petitioner to relief.
We concur:
BOREN, P. J.
DOI TODD, J.