P. v. Sanchez



















Filed 3/20/13 P. v. Sanchez CA4/3

















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ERWIN JOHNNY SANCHEZ, Defendant and Appellant.	G046390 (Super. Ct. No. 09CF1539) O P I N I O N
In re ERWIN JOHNNY SANCHEZ on Habeas Corpus.	(Super. Ct. No. 94CF2707)

Appeal
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, James A. Stotler, Judge. Affirmed as modified.

Original
proceedings; petition for a writ of habeas corpus, after judgment of the Superior
Court of Orange
County. Petition granted.

Kevin
D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

* * *



In 1994, Penal Codehref="#_ftn1" name="_ftnref1" title="">[1]
former section 194 provided in pertinent part:
“To make a killing either murder or
manslaughter, it is requisite that the party die within three years and a
day after the strike received or the cause of death administered.” (Stats. 1969, ch. 593, § 1, p. 1225.) The Legislature subsequently amended section
194 and as of January 1, 1997, the statute provides: “To make the killing either murder or
manslaughter, it is not requisite that the party die within three years and a
day after the stroke received or the cause of death administered. If death occurs beyond the time of three
years and a day, there shall be a rebuttable presumption that the killing was
not criminal. The prosecution shall bear
the burden of overcoming this presumption.
In the computation of time, the whole of the day on which the act was
done shall be reckoned the first.”
(Stats. 1996, ch. 580, § 1, p. 2653.)
We hold this amendment may be applied retroactively to a defendant whose
act occurred prior to the amendment if
the three years and a day term of the earlier version of the statute did not
expire prior to the amendment. (>Strong v. Superior Court (2011) 198
Cal.App.4th 1076; People v. Snipe
(1972) 25 Cal.App.3d 742.)







I

FACTS

A full recitation of the
facts is not necessary given the issues raised on appeal. It suffices to say that in 1996, defendant
Erwin Johnny Sanchez pled guilty to attempting to murder (§§ 187, subd. (a),
664, subd. (a)) Scott Sittler on September
29, 1994, when he shot and paralyzed Sittler. The court sentenced defendant to state prison
for 20 years.

Sittler died in
2009. In 2010, the district attorney
filed an information against defendant, charging him with Sittler’s murder (§
187, subd. (a)) and alleging defendant personally used a firearm in the
commission of the offense (§ 12022.5, subd. (a)) and committed the murder for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court denied defendant’s motions to
dismiss based on what he contended was an ex post facto application of section
194. The jury found defendant guilty of
murder and found the enhancement allegations true. The court sentenced defendant to an aggregate
term of 29 years to life, consisting of 25 years to life for the murder, plus a
consecutive four years on the firearm use enhancement and a two-year concurrent
term on the gang enhancement.

II

DISCUSSION

A. The
Amendment of Section 194

At the time defendant
shot Sittler in 1994, section 194 provided:
“To make a killing either murder or manslaughter, it is requisite that
the party die within three years and a day after the stroke received or the
cause of death administered.” (Former §
194; Stats. 1969, ch. 593, § 1, p. 1225.)
Prior to the expiration of the three year and a day period provided in
section 194, and prior to Sittler’s death, the Legislature amended section
194. It now provides: “To make the killing either murder or
manslaughter, it is not requisite that the party die within three years and a
day after the stroke received or the cause of death administered. If death occurs beyond the time of three
years and a day, there shall be a rebuttable presumption that the killing was
not criminal. The prosecution shall bear
the burden of overcoming this presumption.
In the computation of time, the whole of the day on which the act was
done shall be reckoned the first.” (§
194; Stats. 1996, ch. 580, § 1, 2653.)
Defendant contends the amendment cannot be applied retroactively to his
conduct in 1994 without violating ex post facto.

The ex post facto clause
in article I, section 10 of the United States Constitution prohibits states
from enacting an “ex post facto law.”
Our state ex post facto clause (Cal. Const., art. I, § 9) is coextensive
with the federal provision. (>Tapia v. Superior Court (1991) 53 Cal.3d
282, 295-297.) “A law violates the ex
post facto clause only if it is retroactive — that is, if it applies to events
occurring before its enactment —and if its application disadvantages the
offender. [Citation.] A retroactive law does not violate the ex
post facto clause if it ‘does not alter “substantial personal rights,” but
merely changes “modes of procedure which do not affect matters of
substance.”’ [Citations.]” (People
v. Sandoval (2007) 41 Cal.4th 825, 853.)

The fountainhead of ex
post facto jurisprudence after our country’s formation is Calder v. Bull (1978) 3 U.S.
386. Justice Chase set forth four
categories of laws prohibited by the ex post facto clause. “1st. Every law that makes an action done
before the passing of the law, and which was innocent when done, criminal; and
punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment,
and inflicts a greater punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters
the legal rules of evidence, and receives less, or different, testimony, than
the law required at the time of the commission of the offence, in order to
convict the offender.” (>Id. at p. 390.)

The courts of this state
have, on prior occasions, dealt with ex post facto claims in connection with
section 194. In People v. Snipe, supra,
25 Cal.App.3d 742, Snipe brutally beat her child in February 1969, causing a
leakage in the child’s bowel. At the
time, section 194 provided a death must occur within one year and a day of
“‘the stroke received or the cause of death administered’” for the death to be
considered the result of murder or manslaughter. (Id.
at p. 745.) Snipe’s child died 21 months
after the beating. However, within a
year of the beating and prior to the child dying, the Legislature amended
section 194, replacing the year and a day requirement with a three years and a
day requirement. (Ibid.) Snipe contended the
amendment operated in violation of the ex post facto clause because at the time
of her act, the statute required the death to occur within a year and a day of
the criminal act, the child did not die within that time frame, and Snipe would
not have been liable for a murder prosecution but for the amendment to section
194 made after her criminal act. (Ibid.)

In resolving the ex post
facto issue, the court acknowledged “[a]n ex post facto law is a retroactive
law applying to offenses committed before its enactment which by its necessary
operation and in its relation to the offense, or its consequences, changes the
situation of the defendant to his detriment.
[Citations.]” (>People v. Snipe, supra, 25 Cal.App.3d at p. 747.)
The court then stated, “Constitutional limitations, therefore, are
transgressed by retroactive procedural changes if they operate to deny the accused a vested defense or if they affect him in a harsh or arbitrary
manner. [Citation.]” (Ibid.,
italics added.) The court then went on
to hold the amendment in that case did not violate ex post facto principles
because at the time section 194 was amended — while the year and a day limit
was still in effect — the immunity provided with the expiration of the time
limit previously provided by the section had not yet vested prior to the
amendment. (People v. Snipe, supra,
25 Cal.App.3d at pp. 747-748.) “The
change in the time of death requirement, therefore, [did] not deprive [Snipe]
of a vested defense.” (>Id. at p. 747.)

The court went on to
determine whether the change affected the quality or quantum of evidence of the
prosecution’s case or the burden to establish guilt. (People
v. Snipe, supra, 25 Cal.App.3d at
p. 747.) The court concluded the
amendment did not affect “the quality or quantum of the People’s evidence or
the burden required to establish [Snipe’s] guilt.” (Ibid.) It reached this conclusion because it
determined the amendment only modified “an archaic common law impediment and
was made, obviously, by the Legislature in recognition of the well known fact
that modern medicine not only has made it possible to prolong the life of an
intended murder victim but also has made it feasible to establish the cause of
death even if the victim dies several years after the injury.” (Ibid.) The prosecution was still required to prove
beyond a reasonable doubt Snipe’s criminal conduct proximately caused the
child’s death.

The Snipe court relied on People
v. Ward (1958) 50 Cal.2d 702, 709-710, as support for its holding. (People
v. Snipe, supra, 25 Cal.App.3d at
pp. 747-748.) In Ward, our Supreme Court cited a number of United States Supreme
Court decisions that wrestled with ex post facto claims. Ward’s challenge was based on a change made
to the rules of evidence after he committed his crime. (People
v. Ward, supra, 50 Cal.2d at p.
709, overruled on other grounds in People
v. Morse (1964) 60 Cal.2d 631, 640-641.)
The Ward court found the most
applicable case was Thompson v. Missouri
(1898) 171 U.S. 380. There, the
defendant was convicted of murder based on a handwriting comparison of letters
defendant wrote to his wife and a threatening letter sent to the victim. The high court reversed the defendant’s
conviction finding defendant’s letters to his wife were not admissible. Prior to the defendant’s second trial, the
Legislature amended a statute, permitting the letters to be introduced into
evidence. Thompson was again
convicted. On appeal, he contended the
legislative enactment permitting the letters to his wife to be admitted into
evidence violated ex post facto principles.
(People v. Ward, >supra, 50 Cal.2d at p. 709.) The high court rejected Thompson’s
claim: “‘Applying the principles
announced in former cases . . . we adjudge that the statute of Missouri
relating to the comparison of writings is not ex post facto when applied to prosecutions for crimes committed
prior to its passage. If persons
excluded, upon grounds of public policy, at the time of the commission of an
offense, from testifying as witnesses for or against the accused, may, in virtue
of a statute, become competent to testify [citation], we cannot perceive any
ground upon which to hold a statute to be ex
post facto which does nothing more than admit evidence of a particular kind
in a criminal case upon an issue of fact which was not admissible under the
rules of evidence as enforced by judicial decisions at the time the offense was
committed.’” (Id. at pp. 709-710, quoting Thompson
v. Missouri, supra, 171 U.S. at
pp. 386-387.)

Thirty-nine years after
the Snipe decision, another panel of
this court decided Strong v. Superior
Court, supra, 198 Cal.App.4th
1076. Strong shot the victim on November
6, 1980, paralyzing the victim from the waist down. (Id.
at p. 1080.) At the time of the
shooting, former section 194 required a death to occur within three years and a
day of the criminal act. (>Id. at p. 1079.) The victim did not die until February 2010,
29 years later. The coroner found the
victim’s death to have been a homicide. The
cause of death was “delayed complications” from the shooting. (Id.
at p. 1080.)

The amendment to section
194 at issue in Strong is the same
amendment with which we are faced.
Unlike the present case, where section 194 was amended prior to the
expiration of the three years and a day time term previously provided, the
amendment was made approximately 17 years after the shooting in >Strong.
In other words, the three years and a day period provided in the version
of section 194 in effect at the time of the shooting in Strong had expired prior to the amendment in 1997. Thus, unlike the defendant in >Snipe, Strong had a vested defense to any charge of murder prior to the 1997 amendment
of section 194. (See >People v. Snipe, supra, 25 Cal.App.3d at p. 747.)

The effect then of the
1997 amendment to section 194, authorizing a murder prosecution for a death
that occurred more than three years and a day after Strong’s criminal act, was
to retroactively deny Strong a vested, complete defense to a charge of
murder. Under the version of section 194
in effect at the time Strong shot the victim, Strong was free in November 1983
from the possibility of being prosecuted for murder based on the shooting of
his victim more than three years and a day earlier.

The Stong court analogized the facts in Strong’s case to those presented
in Stogner v. California (2003) 539
U.S. 607. (Strong v. Superior Court, supra,
198 Cal.App.4th at p. 1079.) In >Stogner, our legislature amended a
statute of limitation for certain sex offenses.
The amendment was made with the express intention that the statute would
revive prosecutions already barred by the previous applicable statute of
limitation. (Stogner v. California, supra,
539 U.S. at p. 609.) In Stogner’s case,
criminal liability for his acts expired 22 years before his prosecution under the
amendment. (Id. at p. 610.) The high
court concluded the enactment violated the ex
post facto clause when the amendment was applied to prosecutions that were
barred prior to the amendment. (>Ibid.)
The court quoted Learned Hand who had written that extending an expired
limitation period after assuring “‘a man that he has become safe from its
pursuit . . . seems to most of us unfair and dishonest.’” (Id.
at p. 611, quoting Falter v. United
States (1928) 23 F.2d 420, 426.)

The Stogner court found amendment of California’s statute of limitation
after the previous term had expired — prohibiting prosecution — qualified as an
improper ex post facto application under the second category of abusive ex post
facto laws enacted by England prior to our independence and as set forth by
Justice Chase in Calder v. Bull, >supra, 3 U.S. 386, 389: “‘[A]t other times [Parliament] inflicted
punishments where the party was not, by law, liable to any punishment.’” (Stogner
v. California, supra, 539 U.S. at
p. 612.) “After (but not before) the
original statute of limitations had expired, a party such as Stogner was not
‘liable to any punishment.’ California’s
new statute therefore ‘aggravated’ Stogner’s alleged crime, or made it ‘greater
than it was, when committed,’ in the sense that, and to the extent that, it
‘inflicted punishment’ for past criminal conduct that (when the new law was
enacted) did not trigger any such liability.
[Citation.]” (>Id. at p. 613.)

The Strong court reached the same conclusion. Prior to the amendment of former section 194,
a death had to occur within three years and a day of the criminal act to
qualify as murder. Under that version,
Strong’s potential criminal liability for the murder of the alleged victim
expired in November 1983 and he was no longer subject to prosecution
approximately 15 years before former
section 194 was amended, deleting the three years and a day requirement and
replacing the bar with a rebuttable presumption. (Strong
v. Superior Court, supra, 198
Cal.App.4th at p. 1080.) The >Strong court recognized that while
section 194 is not designated a statute of limitation, labels are not
controlling, and the effect of section 194 “unmistakenly established a time bar
for homicide charges.” (>Id. at p. 1082.) The court concluded the 1997 amendment could
not be applied retroactively to Strong:
“Having established a time bar, the Legislature was entitled to change
it with the proviso that ex post facto principles would preclude prosecutions
for which the limitations period had expired.”
(Ibid.)

Defendant does not find
himself in the same boat as Stogner and Strong.
He was never free from the possibility of being tried for murder based
on the time limit previously set forth in former section 194. Although the version of section 194 in effect
at the time he shot Sittler required a death within three years and a day
before the death could be considered to have resulted from murder or
manslaughter (Stats. 1969, ch. 593, § 1, p. 1225), the Legislature amended
section 194 prior to the expiration of three years and a day from September 29,
1994, the day defendant shot Sittler.
(Stats. 1996, 580, § 1, p. 2653.)
Therefore, the amendment of section 194 does not qualify as an ex post
facto law under Stogner, >Snipe, or Strong.

This does not end our
inquiry. Defendant also contends the
amendment violated the fourth prohibition set forth in Calder v. Bull, supra, 3
U.S. 386: “Every law that alters the
legal rules of evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in order to convict
the offender.” (Id. at p. 390.)

The amendment to section
194 does not qualify as an ex post facto application under Calder’s fourth prohibition.
The amendment did not alter to rules of evidence to permit less or
different testimony that required at the time the criminal act was
committed. In order to obtain a conviction
for murder at the time defendant shot Sittler, the prosecution needed to prove
the defendant’s act was the proximate cause of the victim’s death. (People
v. Roberts (1992) 2 Cal.4th 271, 294.)
The amendment does not change that rule.
The prosecutor is still required to prove beyond a reasonable doubt the
criminal act proximately caused the death.
In fact, the amendment creates a rebuttable presumption the killing was
not criminal when the death occurs more than three years and a day after the
criminal act. “If death occurs beyond
the time of three years and a day, there shall be a rebuttable presumption that
the killing was not criminal. The prosecution shall bear the burden of
overcoming this presumption.” (§ 194.)

The real effect of the
amendment is that it eliminated the requirement of a death within three years
and a day of the criminal act. But as we
have already seen, when former section 194 was amended to remove the one year
and a day requirement, replacing it with a three years and a day requirement,
the amendment did not violate the ex post facto clause when the previously
provided for term had not expired prior to the amendment. In other words, the amendment did not deny
defendant a vested defense. (>People v. Snipe, supra, 25 Cal.App.3d at p. 747.)

As the >Snipe court observed, “[T]he distinction
between a procedural change which transgresses the Constitution if given a
retroactive application and one which does not is a matter of degree, and each
case must be decided on its own facts.”
(People v. Snipe, >supra, 25 Cal.App.3d at p. 747.) Given the fact the Legislature can extend the
period of time for a death to occur and still have the death support a murder
or manslaughter conviction without violating the ex post facto clause — so long
as the prior time period had not expired prior to the amendment (>ibid.) — it would seem the Legislature
may also completely remove the time restriction, leaving it to the prosecution
to prove the death was proximately caused by the criminal act. If such an act would not operate in an ex post
facto fashion, we do not think what the Legislature did here violated the
Constitution. The Legislature removed
the three year and a day restriction, but gave defendant substantial protection
by replacing the restriction with a rebuttable presumption that the death was
not the result of the defendant’s criminal act when the death occurred more
than three years and a day later. We
find the degree of the change made by section 194 does not violate ex post
facto concerns when the amendment is applied in those situations where the term
previously provided in former section 194 did not expire prior to the
amendment, i.e., the defendant’s right to immunity under the previous statute
had not yet vested. Because the three
year and a day term provided in former section 194 at the time defendant shot Sittler
did not expire prior to the 1997 amendment to that section, the retroactive
application of the amendment to defendant does not violate the ex post facto
clause of either Constitution.href="#_ftn2"
name="_ftnref2" title="">[2]



B. Enhancements

Defendant argues the
trial court violated section 1170.1, subdivision (f) and People v. Rodriguez (2009) 47 Cal.4th 501, when it imposed a
four-year enhancement for defendant’s personal use of a firearm (§ 12022.5,
subd. (a)) in the commission of the murder and a concurrent two-year term on
the gang enhancement (§ 186.22, subd. (b)(1)).
He contends both enhancements are based on his use of a firearm and
therefore he may only be sentenced on one of the two enhancements. The argument lacks merit.

Section 1170.1,
subdivision (f)href="#_ftn3" name="_ftnref3"
title="">[3]
prohibits a defendant from being sentenced on two or more enhancements “for
being armed with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense” and provides the defendant may only be
sentenced on the greatest of the enhancements.
The main flaw in defendant’s argument is that while he did receive a
sentence enhancement for personally using a firearm in commission of the murder
(§ 12022.5, subd. (a)), the concurrent term imposed on the gang enhancement was
not based on defendant having been armed with or having used a deadly weapon or
firearm. At the time of defendant’s
offense, section 186.22, subdivision (b)(1) provided a one, two, or three year
enhancement for “any person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” (Stats. 1993,
ch. 601, § 1, p. 3160.) The gang statute
under which defendant was sentenced did not require the defendant to have been
armed with a deadly weapon or to have used a firearm. Thus, section 1170.1, subdivision (f) does
not preclude imposition of both enhancements.

Defendant’s reliance on >People v. Rodriguez, >supra, 47 Cal.4th 501 is misplaced. In Rodriguez,
the defendant was convicted of three counts of assault with a firearm (§ 245,
subd. (a)(2)). The court imposed
consecutive terms under section 12022.5, subdivision (a) for defendant’s
personal use of a firearm and under the gang enhancement. The Supreme Court agreed section 1170.1,
subdivision (f) prohibited imposition of both terms. (Id.
at p. 504.) However, Rodriguez was
sentenced under a different subdivision of section 186.22 than defendant. Rodriguez was sentenced under a subdivision
that called for a 10-year enhancement when the underlying offense is a violent
felony as defined in section 667.5, subdivision (c). (§ 186.22, subd. (b)(1)(C).) Rodriguez’s conviction for assault with a
firearm qualified for the 10-year gang enhancement because assault with a
firearm is a violent felony. It
qualifies as a violent felony because Rodriguez used a firearm in committing
the offense. Thus, in that case
imposition of enhancements for personal use of a firearm and the 10-year gang enhancement, which only applied because
Rodriguez was armed with or used a weapon, violated section 1170.1, subdivision
(f). (People v. Rodriguez, supra,
47 Cal.4th at p. 505.)

That is not the
situation here. The two-year term
imposed under section 186.22, subdivision (b)(1) had nothing to with whether
defendant was armed with a deadly weapon or used a firearm. Therefore, section 1170.1, subdivision (f)
was neither implicated or violated by imposition of enhancements under section
12022.5, subdivision (b) and section 186.22, subdivision (b)(1). Accordingly, we find the trial court did not
err in imposing both enhancements.



C. Fees
Imposed

At sentencing, the court
imposed three $40 court security fees, stating, “Under . . . section 1465.8,
the court imposes a court security fee in the amount of $40 per convicted
count. There were three counts, even
though I stayed sentence on one, so therefore three times 40 is 120.” The Attorney General concedes the error.

Section 1465.8 provides
for a $40 assessment for “every conviction for a criminal offense.” (§ 1465.8, subd. (a)(1).) Contrary to the trial court’s statement,
defendant was not convicted of three criminal offenses. He was convicted of only one, murder. The conviction applies to convictions, but
not to enhancements. (>People v. Roa (2009) 171 Cal.App.4th
1175, 1176-1177 [jury convicted defendant of two felonies and found he personally used a firearm], 1181 [because defendant
was convicted of two felonies the court should have imposed two section 1465.8
fees].) We therefore will order the
abstract of judgment corrected to reflect the imposition of one $40 assessment
under section 1465.8.

Similarly, the court
imposed three $30 Government Code section 70373, subdivision (a)(1) fees. Like section 1465.8, Government Code section
70373 requires imposition of a fee “on every conviction for a criminal
offense.” (§ 1465.8, subd. (a)(1); Gov.
Code, § 70373, subd. (a)(1).) The
Attorney General concedes this error as well and we order the abstract of judgment
corrected to reflect the imposition of one $30 fee under Government Code
section 70373, subdivision (c)(1).



D. The
Attempted Murder Conviction

Defendant was convicted
in 1996, Orange County Superior Court case No. 94CF2707, of the attempted murder
of Sittler and in 2011 he was convicted in the present case of Sittler’s first
degree murder, based on the same act.
Attempted murder is a lesser included offense of first degree murder. (§ 663.)
Defendant asserts the trial court erred in failing to strike or dismiss
the conviction for attempted murder, or in failing to stay his prison sentence
for the attempted murder once he stood convicted of the completed crime of
murder. The Attorney General argues the
judgment should be modified to reflect the sentence for the attempted murder is
stayed pending successful completion of the sentence imposed on the murder
conviction. This does not, however,
remedy the existence of the impermissible dual convictions.

“When a defendant is
found guilty of both a greater and a necessarily lesser included offense
arising out of the same act or course of conduct, and the evidence supports the
verdict on the greater offense, that conviction is controlling, and the
conviction of the lesser offense must be
reversed. [Citations.]” (People
v. Sanders (2012) 55 Cal.4th 731, 736, italics added.) Defendant has been convicted of the attempted
murder of Sittler and of Sittler’s murder.
The same act underlies both convictions.
Defendant has thus been convicted of the greater and lesser included
offense. He is entitled, therefore, to
have his attempted murder conviction vacated.

At oral argument, the
parties addressed whether this court has jurisdiction to remedy this
situation. The Attorney General conceded
a defendant cannot be convicted of attempted murder and the murder of the same
victim based on the same act. She argued
there is no habeas corpus jurisdiction in this matter because defendant
received full credit for the time he spent in custody on the attempted murder
conviction against his sentence on the murder conviction, and he is no longer
in custody on the attempted murder conviction.
However, she acknowledged the remaining time left on the sentence for
the attempted murder was never vacated.

In order for an individual
to prosecute a petition for a writ of habeas corpus, the individual must be in
custody or otherwise restrained of his liberty.
(In re Stier (2007) 152
Cal.App.4th 63, 82; § 1473, subd. (a).)
Defendant is imprisoned on the murder conviction and, as the sentence on
the attempted murder charge has not been vacated, we conclude he is
constructively in custody on case No. 94CF2707.
(People v. Villa (2009) 45
Cal.4th 1063, 1069 [“‘the decisional law of recent years has expanded the
writ’s application to persons who are determined to be in constructive
custody’”].) Accordingly, we treat
defendant’s opening brief as a petition for a writ of habeas corpus to the
extent it seeks vacation of his conviction for attempted murder in case No.
94CF2707 (People v. Stanworth (1974)
11 Cal.3d 588, 596, fn. 7) and order the superior court to vacate defendant’s
conviction for attempted murder in that case.

III

DISPOSITION

The clerk of the
superior court is directed to correct the abstract of judgment to reflect the
imposition of one $40 assessment under section 1465.8, subdivision (a)(1), one
$30 fee pursuant to Government Code section 70373, subdivision (a)(1), and to
send a certified copy of the abstract of judgment to the Department of
Corrections and Rehabilitation. In all
other respects the judgment is affirmed.

We grant defendant’s
petition for a writ of habeas corpus.
The superior court is ordered to vacate defendant’s conviction for
attempted murder in Orange County Superior Court case No. 94CF2707, as he now
stands convicted of Sittler’s murder in the present case.





MOORE,
ACTING P. J.



WE CONCUR:







FYBEL, J.







THOMPSON, J.