Opinion
B165508. B164984. B146268.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD J. GOZY, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Edward Joseph Gozy appeals from the December 11, 2002, order denying his petition for writ of error coram nobis. On February 12, 1987, pursuant to a plea bargain, defendant entered pleas of guilty to second degree murder (count 1) and second degree robbery (count 2) and admitted personal use of a knife with respect to both counts. (Pen. Code, §§ 187, 211, 12022, subd. (b).) On March 12, 1987, pursuant to the bargain, defendant was sentenced to 15 years to life in prison on count 1 (§ 190, subd. (a)). The court imposed a concurrent three-year sentence on count 2 and imposed and stayed execution of a one-year sentence on the use admission. Thus, defendant was sentenced to imprisonment "in the state prison for a period of 15 years to life." Defendant did not appeal. In October 2002, defendant filed his self-prepared coram nobis petition in the superior court, where it was denied. He filed a notice of appeal and has submitted the petition to us.
We appointed counsel to represent defendant on this appeal. After examination of the record, counsel filed an opening brief in which no issues were raised, asking us to independently review the entire record on appeal. On July 9, 2003, we advised defendant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date. Nonetheless, we briefly address the contents of his petition.
As we understand his petition, defendant essentially raises two arguments to support his claim that because he has served 15 years in prison, he is entitled to immediate release from prison. First, he contends that by Penal Code section 190, subdivision (a), the Legislature "fixed . . . the term of 15 year minimum as the punishment before being released" (caps. and emphasis omitted) and that, the Department of Corrections, inaccurately classified him as a "life prisoner" under California Code of Regulations, title 15, section 2000, subd. (b)(3), thus wrongly conferring jurisdiction on the Board of Prison Terms to increase his sentence. (Caps. and emphasis omitted.)
The Supreme Courts decision in In re Rosenkrantz (2002) 29 Cal.4th 616 disposes of defendants claim. In Rosenkrantz, the petitioner claimed enactment of article V, section 8(b) of the California Constitution in 1988, granting the Governor authority to review and affirm, modify or reverse the parole authoritys decision, impermissibly increased the punishment for his offense, which was committed in 1985. The court denied his claim, in part, because "[a]t the time petitioner committed the underlying offense, second degree murder was punishable by a sentence of imprisonment from 15 years to life (with the possibility of parole), and after the adoption of article V, section 8(b), the term of petitioners sentence remains imprisonment from 15 years to life (with the possibility of parole)." (At p. 640.) Similarly, defendants classification as a "life prisoner" does not alter the fact that his prison term remains imprisonment from 15 years to life (with the possibility of parole).
In addition, Rosenkrantz was treated by the Supreme Court as a "life prisoner." That necessarily means that defendant (who committed the same crime and received the same sentence) is also a "life prisoner." Acceptance of defendants claim that he is not a "life prisoner" and is thus entitled to automatic release as soon as he serves 15 years would mean the Supreme Court was dealing with a moot issue in Rosenkrantz, but failed to recognize such. We reject any such notion.
Defendants second claim appears to be that he is entitled to immediate release and entitled to withdraw his plea because, when his plea was entered, he was unaware of the Governors "current `No Parole Policy." (Some caps. and emphasis omitted.) Defendant offers no evidence in support of this allegation, and his reliance on our opinion in In re Rosenkrantz, originally published at 80 Cal.App.4th 409, has been obviated by the Supreme Courts subsequent ruling that the evidence relied on by the trial court, including a Los Angeles Times article dated April 9, 1999, did not support the trial courts finding that denial of Rosenkrantzs parole was based on a gubernatorial policy of automatically denying parole to all murderers. (In re Rosenkrantz, supra, 29 Cal.4th at p. 685.)
We have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.
We concur: SPENCER, P.J., and VOGEL (Miriam A.), J. --------------- Notes: California Code of Regulations, title 15, section 2000, subdivision (b) provides definitions "[f]or the purpose of the regulations contained in this division." Subdivision (b)(3)(B) defines "Life Prisoner" as including "[a] prisoner serving a sentence of life with the possibility of parole. The parole date is determined by the [Board of Prison Terms]. Life sentences may be imposed for . . . [¶] Second degree murder (Penal Code section 187) committed on or after November 8, 1978."