People v. Zia CA2/2 ( 2020 )

Filed 10/26/20 P. v. Zia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302270
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054837)
v.
JOSEPH ZIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Reversed and
remanded with directions.
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Joseph Zia appeals a resentencing order pursuant to an
order to show cause (OSC) returnable in superior court.
PROCEDURAL BACKGROUND
On April 29, 2014, appellant entered a negotiated no
contest plea to one count of attempted murder (count 1, Pen.
Code,1 §§ 664/187, subd. (a)) and one count of assault with a
firearm (count 6, § 245, subd. (a)(2)) in exchange for the dismissal
of four counts of attempted murder and the premeditation and
deliberation allegation as to count 1. Appellant admitted a prior
strike conviction (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), a
firearm use allegation (§ 12022.53, subd. (b)) in connection with
count 1, and a great bodily injury (GBI) allegation (§ 12022.7,
subd. (a)) in connection with count 6.
In accordance with the plea agreement, Judge Lisa Chung
sentenced appellant to a term of 33 years in state prison. The
sentence consisted of the high term of nine years, doubled to 18
years, plus a consecutive 10-year term for the firearm use
enhancement on count 1; and one year (one-third the midterm),
doubled to two years, plus a consecutive three-year term for the
GBI enhancement on count 6. Appellant did not appeal the
judgment.
Sometime in the fall of 2016, appellant submitted a letter
to the trial court in which he alleged the two enhancements had
been “erroneously attached to the wrong acts and crimes.” He did
not, however, file a petition for writ of habeas corpus challenging
his sentence. Nevertheless, on November 7, 2016, the trial court
filed a written order in which Judge Chung found the sentence on
count 6 to be unauthorized because the term for the GBI
1 Undesignated statutory references are to the Penal Code.
2
enhancement should have been one-third the midterm⎯one year,
rather than three years as imposed at sentencing.2 To correct the
sentencing error, Judge Chung unilaterally removed the
enhancement from count 6 and applied it to count 1, leaving the
total sentence unchanged. The court explained that by retaining
the original aggregate sentence, both parties would receive the
“benefit of the bargain of a total sentence of 33 years and that an
overall legal authorized sentence is imposed.” On November 17,
2016, an amended abstract of judgment was filed, reflecting a 31-
year sentence on count 1 (nine years doubled to 18 years, plus 10
years for the gun use enhancement and three years for the GBI
enhancement), and a two-year sentence on count 6 (one year (one-
third the midterm) doubled to two years), for an aggregate term
of 33 years in state prison.
Thereafter, appellant submitted another letter to Judge
Chung, requesting that one of the imposed enhancements be
removed, and on August 14, 2017, the court responded with an
order declining to strike either of the enhancements.
Appellant filed a habeas petition in the superior court in
which he alleged that the trial court had imposed an illegal and
unauthorized sentence when it removed the section 12022.7,
subdivision (a) GBI enhancement from count 6 and attached it to
count 1. On March 26, 2018, Judge Chung denied the petition,
finding that appellant had failed to state a prima facie case of
2 When a one-third subordinate sentence is imposed on the
substantive offense to which an enhancement is attached, the
term on the enhancement must also be a one-third term. (People
v. Moody (2002) 96 Cal. App. 4th 987, 992–993 [an enhancement
attached to a consecutive subordinate term must be reduced to
one-third of the term imposed for that specific enhancement].)
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relief. The court noted it had “amended the judgment to reflect
the great bodily injury enhancement as to the victim on Count 1”
in order to ensure that “both sides received the benefit of the
bargained for sentence of 33 years.”
Appellant then filed a petition for writ of habeas corpus in
this court, asserting the same claim he had raised in his superior
court petition. Appellant also claimed he had been led to believe
that the victim in count 6 had been shot, but he later learned this
was not true. Appellant asserted that this false information had
prompted him to accept the plea deal. Respondent filed a
preliminary response, and appellant filed a traverse.
On October 4, 2018, this court issued an OSC in which we
found appellant had made a prima facie showing of entitlement
to relief solely on the claim that the superior court’s order
amending the judgment, the amended abstract of judgment, and
orders denying relief from the amended judgment were improper.
Specifically, we noted that the trial court had “unilaterally
amended the judgment, which was the result of a plea
agreement, without consent of the parties.” The OSC was
returnable in the superior court as to why the amendment to the
judgment made by Judge Chung and the amended abstract of
judgment should not be vacated. In all other respects, the
petition was denied, and the court “express[ed] no opinion
regarding whether petitioner may seek to withdraw his plea, as
this issue has not been raised in the petition and appears not to
have been raised in the superior court, or to pursue other relief.”
(In re Zia (Oct. 4, 2018, B289324).)
At the resentencing hearing before Judge Daviann Mitchell
on October 10, 2019, pursuant to the OSC, appellant’s counsel
orally moved to withdraw the plea on the basis of ineffective
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assistance of counsel, and requested appointment of conflict
counsel. The superior court denied the motion without prejudice
and imposed the identical sentence Judge Chung had imposed in
the November 7, 2016 order. This appeal followed.
DISCUSSION
I. The Superior Court’s Postjudgment Sentencing
Order Made After this Court’s OSC Is
Appealable
Characterizing the superior court’s postjudgment
sentencing order made after the OSC as a denial of the habeas
corpus petition, respondent contends that the instant appeal
must be dismissed because the denial of appellant’s habeas
petition is not appealable or otherwise reviewable by this court.
Respondent is correct that in a noncapital criminal case the
defendant has no right of appeal from an order granting or
denying his or her petition for writ of habeas corpus. (Jackson v.
Superior Court (2010) 189 Cal. App. 4th 1051, 1064 [“No appeal
lies from an order denying a petition for writ of habeas corpus”];
People v. Gallardo (2000) 77 Cal. App. 4th 971, 983 (Gallardo)
[“Although the People may appeal the granting of a writ of
habeas corpus, the detainee has no right to appeal its denial and
must instead file a new habeas corpus petition in the reviewing
court”], 986 [same]; accord, In re Clark (1993) 5 Cal. 4th 750, 767,
fn. 7 [“Because no appeal lies from the denial of a petition for writ
of habeas corpus, a prisoner whose petition has been denied by
the superior court can obtain review of his claims only by the
filing of a new petition in the Court of Appeal”]; In re Application
of Zany (1913) 164 Cal. 724, 726.) Because Zia purports to appeal
from a nonappealable order, respondent asserts that this court is
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without jurisdiction to consider the appeal and must order
dismissal.
However, as our Supreme Court in People v. Romero (1994)
8 Cal. 4th 728 explained, “issuance of a writ of habeas corpus or
an order to show cause is an intermediate but nonetheless vital
step in the process of determining whether the court should grant
the affirmative relief that the petitioner has requested. The
function of the writ or order is to ‘institute a proceeding in which
issues of fact are to be framed and decided.’ [Citation.] The
issuance of either the writ of habeas corpus or the order to show
cause creates a ‘cause,’ thereby triggering the state constitutional
requirement that the cause be resolved ‘in writing with reasons
stated.’ ” (Id. at p. 740.)
In issuing the OSC returnable in the superior court in this
case, this court determined the sentence was unauthorized and
effectively granted the writ. No evidentiary hearing or findings
of fact were required: All that remained for the superior court
was to resentence appellant by vacating Judge Chung’s order
amending the judgment and to restore the original judgment,
thereby resolving the cause. Based on the record in this case, it
thus appears that the superior court did not deny appellant’s
habeas petition, but entered a postjudgment order following a
resentencing hearing. That proceeding and the resulting order
are subject to appellate review.3
3 Even if we were to accept respondent’s characterization of
the superior court’s order as a nonappealable denial of appellant’s
habeas petition, dismissal would not be appropriate. Rather, in
the interests of judicial economy, the unusual procedural posture
of this case would be better addressed by treating the appeal as a
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II. The Matter Is Remanded to the Superior Court
for Further Proceedings Consistent with this
Court’s OSC
A. On remand the superior court shall vacate Judge
Chung’s order amending the judgment and reinstate the
original judgment based upon the parties’ negotiated plea
“[A] negotiated plea agreement is in the nature of a
contract. Thus, when the trial court accepts it, the agreement is
binding on the parties and the court. (§ 1192.5; Segura, supra, 44
Cal.4th at pp. 930–931.) Thereafter, material terms of the
agreement cannot be modified without the parties’ consent.
(Segura, supra, at p. 935.)” (People v. Martin (2010) 51 Cal. 4th
75, 80.)
Here, appellant pleaded guilty in exchange for a specified
sentence. In entering the negotiated plea agreement and
agreeing to the 33-year sentence, appellant admitted a firearm
use allegation (§ 12022.53, subd. (b)) in connection with count 1,
and a GBI allegation (§ 12022.7, subd. (a)) as to count 6. By
unilaterally removing the GBI allegation from count 6 and
attaching it to count 1 without the consent of the parties, Judge
Chung modified the material terms of the plea agreement and
thereby improperly amended the judgment. (See Segura, supra,
44 Cal.4th at pp. 931–932 [“in the context of a negotiated plea the
petition for writ of habeas corpus or mandate whereby we would
nevertheless reach the merits of the issues presented by the
appeal. (People v. Segura (2008) 44 Cal. 4th 921, 928, fn. 4
(Segura) [treating appeal as petition for writ of habeas corpus in
the interests of judicial economy]; Gallardo, supra, 77
Cal.App.4th at p. 986; see People v. Banks (1959) 53 Cal. 2d 370,
379, fn. 5.)
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trial court may approve or reject the parties’ agreement, but the
court may not attempt to secure such a plea by stepping into the
role of the prosecutor, nor may the court effectively withdraw its
approval by later modifying the terms of the agreement it had
approved”]; People v. Godfrey (1978) 81 Cal. App. 3d 896, 903
[“While the court . . . need not approve a bargain reached
between the prosecution and the defendant, it cannot change that
bargain or agreement without the consent of both parties”].)
Likewise, Judge Mitchell’s imposition of sentence pursuant to the
amended judgment that had prompted the OSC also constituted
an alteration of the material terms of the plea agreement without
the consent of the defense.
Therefore, on remand in accordance with the OSC, the
superior court shall vacate the postjudgment orders amending
the original judgment, vacate the November 17, 2016 amended
abstract of judgment, and reinstate the original judgment based
upon the parties’ negotiated plea.
B. Appellant has not properly raised the issue of
withdrawal of his plea, and he may not raise it on remand
in these proceedings
Over the course of these proceedings, appellant has
indicated a desire to withdraw his plea on the ground that he
received ineffective assistance of counsel during the plea
negotiations. But as this court noted in the OSC, appellant has
never properly raised the issue before any court. He may not do
so on remand in this proceeding either.
It is settled that “[a] habeas corpus proceeding is ‘limited to
the claims which the court initially determined stated a prima
facie case for relief.’ [Citations.] ‘ “This process of defining the
issues is important because issues not raised in the pleadings
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need not be addressed. [Citation.]” [Citation.] Under this
process, the issues to be addressed may not extend beyond the
claims alleged in the habeas corpus petition.’ ” (In re Arroyo
(2019) 37 Cal. App. 5th 727, 732; In re Lawley (2008) 42 Cal. 4th
1231, 1248 [the claims in an order to show cause are limited to
those alleged in the petition]; see In re Clark, supra, 5 Cal.4th at
p. 781, fn. 16.)
As set forth above, the sole matter before the superior court
on remand in this case is the unauthorized sentence that resulted
from Judge Chung’s unilateral amendment to the judgment.
Should appellant wish to withdraw his plea based on ineffective
assistance of counsel or pursue any other relief, he is free to
pursue any claims in an appropriate writ petition, but he may not
do so on remand in this proceeding. (See People v. Snow (2003)
30 Cal. 4th 43, 111 [“normally a claim of ineffective assistance of
counsel is appropriately raised in a petition for writ of habeas
corpus”].)
III. The Superior Court Did Not Err in Refusing to
Consider Withdrawal of the Plea or
Appointment of Conflict Counsel in
Proceedings Pursuant to this Court’s OSC
Appellant contends that the superior court erred in failing
to appoint conflict counsel at resentencing, and on remand, new
counsel should be appointed. We find no error in the superior
court’s refusal to consider appellant’s motion to withdraw his plea
or appoint conflict counsel.
Respondent correctly observes that the request for conflict
counsel was based solely on a conflict arising from appellant’s
motion to withdraw his plea for ineffective assistance of counsel.
But neither the request to withdraw the plea nor any ineffective
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assistance claim was raised in appellant’s habeas petition, and in
specifically limiting the OSC to the sentencing issue, this court
“express[ed] no opinion regarding whether petitioner may seek to
withdraw his plea” or pursue other relief. (In re Zia, supra,
B289324.) Thus, the superior court was correct in ruling that it
had no jurisdiction to entertain a motion to withdraw the plea,
and, because the ineffective assistance of counsel claim was only
relevant to a matter not before the court, the court was under no
duty to appoint conflict counsel.
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DISPOSITION
The October 10, 2019 resentencing order is reversed, and
the matter is remanded to the superior court for further
proceedings in accordance with this court’s October 4, 2018 order
to show cause. On remand the superior court shall vacate the
postjudgment orders amending the original judgment, vacate the
November 17, 2016 amended abstract of judgment, and reinstate
the original judgment based upon the parties’ negotiated plea.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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