In re Shaheed

In re KARRIEM SHAHEED on Habeas Corpus.

A164929

California Court of Appeals, First District, Second Division

December 29, 2022

NOT TO BE PUBLISHED

(Alameda County Super. Ct. No. HC127824-2)

STEWART, P.J.

Petitioner Karriem Shaheed purports to appeal from a superior court order denying his petition for writ of habeas corpus and, in connection therewith, amending the abstract of judgment. It is well established that "in noncapital cases, if the superior court denies a petition for a writ of habeas corpus the petitioner has no statutory right to appeal. Instead, the petitioner must file a new, original petition, generally in the Court of Appeal." (Robinson v. Lewis (2020) 9 Cal.5th 883, 895; Pen. Code,^[1] § 1506 [providing People but not habeas petitioner, right to appeal].)

Where "the interest of judicial economy weighs in favor of deciding the merits now, and there is no need to further develop the record," we may exercise our discretion "to deem an appeal from the denial of a petition for writ of habeas corpus to be an original habeas petition filed in this court." (In re Dohner (2022) 79 Cal.App.5th 590, 594; People v. Gallardo (2000) 77 Cal.App.4th 971, 986.) We exercise that discretion in this case because petitioner has provided an adequate record and disposition of this petition on its merits will serve judicial economy.

We deny the petition for the reasons stated below.

FACTUAL AND PROCEDURAL BACKGROUND

I. Trial and Sentencing

As set forth in our opinion on Shaheed's direct appeal from the underlying judgment, Shaheed "was charged by information filed on July 24, 1996, with one count of rape (Pen. Code, §261, subd. (a)(2)), two counts of oral copulation (§ 288a), and one count of possession of a firearm by an ex-felon (§ 12021.1). The first three counts alleged that [Shaheed] personally used a firearm in the commission of the offenses (§ 12022.3, subd. (a)), was ineligible for probation (§ 1203.065, subd. (a)), and was subject to sentencing under sections 667.61, subdivision (e)(4) and 667.6, subdivision (d)). The information additionally alleged that [Shaheed] had suffered a prior felony conviction (§ 667, subd. (e)(1)/1170.12, subd. (c)(1)) and served a separate prison term for that conviction (§§ 667, subd. (a).)" (People v. Shaheed (Sept. 16, 1999, A078455 [nonpub. opn.], fn. omitted.) "Jury trial began on April 1, 1997. On April 4, the jury found appellant guilty of all charges and found the firearm use and prior conviction allegations true." (Ibid.)

The trial court sentenced Shaheed to a total term of 35 years to life, consisting of: concurrent 15-years-to-life terms on each of the three sex offenses, each doubled to 30 years to life under the Three Strikes Law, section 667, subdivision (e)(1); one two-year term on the firearm count, also doubled and concurrent; and one consecutive five-year term for the prior conviction. It appears the court intended the firearm enhancements to be included in the 15-years-to-life terms for each of the three sex offenses. The 1997 abstract of judgment confirmed a total term of 35 years to life, with concurrent terms on counts 1 through 4 and the gun enhancements stayed. It also indicated that Shaheed was being sentenced under the Three Strikes Law.

II. Subsequent Amendments to the Abstract of Judgment

In April 2002, in response to a notice from the Department of Corrections, the abstract of judgment was amended to reflect that the gun enhancements on counts 1 through 3, as well as the sentence on the count 4 gun possession charge, were stayed. The amended abstract also struck the prior strike conviction, under section 1385, as to counts 2, 3 and 4 only. The total term remained 35 years to life.

In November 2020, Shaheed filed a "motion for modification of sentence" that the superior court treated as a petition for habeas corpus. The court denied Shaheed's first claim, that his 1993 robbery conviction could not be used as a strike to increase his 1997 sentence because he had not been advised in 1993 that the conviction could be used for a future strike.

However, the court sought briefing by the district attorney on Shaheed's second claim, that his sentence violated former subdivision (g) of section 667.61. Subdivision (g) specified that a 15-years-to-life term for certain offenses, including violations of section 261 and section 288a, "shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." (See Stats. 1994, 1st Ex. Sess. ch. 14 § 1; Sen. Bill No. 26 (1994 portion of 1993-1994 1st Ex. Sess).) Specifically, the court ordered the district attorney to address "whether Petitioner's sentence violates former subdivision (g) of Penal Code section 667.61 and [People v.] Jones [(2001) 25 Cal.4th 98]," which interpreted it, and whether the fact that the sentences imposed for the three sex offenses were made to run concurrently "cures the defect, if any." Shaheed had committed all three sex offenses against the same victim on the same evening.

The People filed a letter brief stating, among other things, their agreement that "in [Shaheed's] case, only one of the counts 1, 2, or 3 should have been sentenced to 15 to Life, which should have been the base term," and asserting that "Counts 2 and 3 could then have been imposed consecutively as a third of the mid term or concurrently, at the court's discretion." The People also argued that "[b]ecause the court ran the sentences concurrently, there is no harm to the petitioner even though he incorrectly sentenced petitioner for counts 2 and 3." Finally, the People argued the error was "clerical" and that the court had the inherent power to correct it" 'on its own motion or upon the application of the parties.'" In a letter reply brief, Shaheed agreed with the People's proposal about how to correct the sentence.

In March 2021, the court, finding the parties had agreed that the court should issue an amended abstract of judgment reflecting corrections, ordered the corrections to be made and then dismissed the petition as moot. Specifically, the court ordered the clerk to "prepare an amended abstract of judgment and minutes of the sentencing correcting the sentence imposed on Counts Two and Three to six years each, doubled to 12 years due to the prior strike conviction to run concurrent to the sentence on Count One." (Fns. omitted.) The court deemed its order to be a "correction of the abstract of judgment rather than a resentencing."

The abstract filed by the clerk on March 22, 2021, erroneously reflected a total term of only 20 years to life, consisting of a 15-years-to-life sentence on the rape count (count 1) and a consecutive five-year term under section 667, subdivision (a). It also reflected concurrent 12-year determinate sentences on the two oral copulation counts, as well as the stayed four-year gun enhancements on all three sex crime convictions and the stayed 2-year term on the gun possession count.

III. Shaheed's Superior Court Habeas Petition

On December 13, 2021, Shaheed filed a petition for habeas corpus in Alameda Superior Court alleging that in response to his 2020 motion to modify his sentence, that court had "agreed and resentence[d] [him] to 20 to life." Relying on the erroneous March 2021 amended abstract of judgment, he argued that the Department had refused to change his minimum and maximum release dates to reflect the shortening of his total sentence. He contended those dates had passed in 2013 and 2016, respectively, and that, in combination with a 2021 5-year parole denial, his continued incarceration constituted excessive punishment in violation of the state and federal constitutions.

In the resulting January 13, 2022 order, from which Shaheed now purports to appeal, the superior court denied Shaheed's petition but noted a serious clerical error in the March 2021 amended abstract of judgment and minutes. Accordingly, it ordered the preparation of a new amended abstract and amended minutes. The court explained as follows:

"Petitioner was not resentenced to 20 years to life pursuant to this court's March 15, 2021 order. The court explicitly deemed the amended abstract of judgment to be a correction rather than a resentencing.

Petitioner's original total term of 35 years to life was not in any way intended to be changed or reduced. Rather, Petitioner's total term was meant to remain at 35 years to life. The only correction ordered to be made, in compliance with former Penal Code section 667.61, subdivision (g), was that the concurrent 15 years to life sentences on Counts Two and Three, which had been doubled to 30 years to life due to a prior strike conviction, were to be corrected to six years each, doubled to 12 years due to the prior strike conviction, and ordered to run concurrent to Count One. The original sentence on Count One was not ordered to be changed. As noted, Petitioner was originally sentenced to 15 years to life on Count One, which was doubled to 30 years to life due to the prior strike conviction. However, the amended abstract of judgment and minutes of sentencing erroneously fails to reflect that the 15 year to life sentence on Count One is doubled to 30 years to life due to the prior strike conviction, and instead only indicates a sentence of 15 years to life as to that count plus a consecutive five year term for the prior conviction for a total term of 20 years to life. This was in error.

"Again the court stresses that the sentence on Count One was in no way ordered or intended to be amended. Indeed, such a drastic reduction in Petitioner's sentence would constitute a resentencing, which this court explicitly did not conduct. Moreover, as noted, the doubling of Petitioner's 15 year to life...