In re Salomon CA5 ( 2014 )

Filed 11/17/14 In re Salomon CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re F070164
MATTHEW JAMES SALOMON, (Kings Super. Ct. No. 03CM7373)
On Habeas Corpus. OPINION
THE COURT
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Matthew James Salomon, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Michael A. Canzoneri, David Andrew Eldridge and Barton Bowers, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Before Cornell, Acting P.J., Gomes, J., and Peña, J.
BACKGROUND
In Kings County Superior Court case No. 03CM7373, petitioner was convicted by
jury of count III, conspiring to possess a controlled substance in prison (Pen. Code,
§§ 182, subd. (a)(1), 4573.6)1 and count IV, conspiracy to furnish a controlled substance
to a prison inmate (§§ 182, subd. (a)(1), 4573.9). (People v. Salomon (Oct. 18, 2005,
F044183, p. 2 (F044183).) The jury also found true the allegations that petitioner had
suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On October 28, 2003, petitioner was sentenced to 25 years to life in prison, to run
consecutively to the prison term he was already serving in Fresno County Superior Court
case No. 657684-7, and was ordered to pay a restitution fine.
In his timely filed appeal, this court reversed his conviction in count IV for
conspiring to furnish a controlled substance to a prison inmate based on the Attorney
General’s concession, struck the abstract of judgment for the Fresno County cases and, in
all other respects affirmed. (F044183, pp. 20, 34.) This court directed the trial court to
prepare an amended abstract of judgment with respect to the Kings County case and to
forward a certified copy of it to the California Department of Corrections and
Rehabilitation. (Id. at p. 34.)
The amended abstract of judgment that followed shows petitioner was sentenced
on the section 4573.6 conviction to a term of 25 years to life under the Three Strikes law.
Petitioner subsequently petitioned the trial court for resentencing under
Proposition 36, the Three Strikes Reform Act of 2012. The court granted petitioner’s
motion and issued an amended abstract of judgment on May 12, 2014. It shows the court
imposed a 12-year term for the controlling offense, the section 4573.9 violation—the
same charge this court reversed on appeal—and an eight-year term on the section 4573.6
conviction this court affirmed on appeal. Both of the sentences were comprised of the
1 All statutory references are to the Penal Code.
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upper term doubled under the Three Strikes law. The latter term was stayed pursuant to
section 654.
DISCUSSION
The trial court erred when it imposed any sentence on the reversed count. The
Attorney General concedes the point in its informal response filed in this writ proceeding
on October 30, 2014, and asks this court to grant the petition for writ of habeas corpus
and to issue an order directing the superior court to resentence petitioner in accordance
with law in Fresno County Superior Court case No. 657684-7 and Kings County Superior
case No. 03CM7373.
That request is granted.
DISPOSITION
Let a writ of habeas corpus issue directing the Kings County Superior Court to
resentence petitioner in conformity with this opinion and in accordance with law in
Fresno County Superior Court case No. 657684-7 and Kings County Superior case No.
03CM7373.
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