In re Corelleone








Filed 9/26/11 In re Corelleone 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re ACHILLES CORELLEONE on Habeas Corpus.

B233579 (Los Angeles County Super. Ct. No. KA088493)

ORIGINAL PROCEEDING. Petition for writ of habeas corpus.
Mike Camacho, Judge. Granted in part and denied in part.

Achilles Corelleone, in pro. per., Jonathan B. Steiner, Richard B. Lennon and California Appellate Project for Petitioner.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Xiomara Costello, Supervising Deputy Attorney General, and Charles S. Lee, Deputy Attorney General, for respondent Director of the Department of Corrections and Rehabilitation.


Petitioner Achilles Corelleone entered a nolo contendere plea to three counts of participating in an act of oral copulation by a person over 21 years of age with a person under the age of 16 (Pen. Code, § 288a, subd. (b)(2)) and one count of participation in an act of sodomy by a person over the age of 21 with a person under the age of 16. (Pen. Code,
§ 286, subd. (b)(2).) Two other counts (two for sodomy, one for oral copulation by force or fear) were dismissed pursuant to the plea agreement. Petitioner was sentenced to an agreed-upon term of five years in state prison. The sentence included a requirement that upon his release, petitioner register as a sex offender. (Pen. Code, § 290.) We affirmed the judgment of conviction on January 31, 2011. (People v. Corelleone, (Jan. 31, 2011, B223186) [nonpub. opn.].)^[1]
Petitioner alleges that in April 2010, after arriving in state prison, he reviewed his Institutional Classification Committee (ICC) Committee Report (CDCR form 128-G), and noted what he believed were several errors, including a notation in the “Case Factors” section of the report that petitioner had been convicted of lewd and lascivious conduct against a child under age 14. This information appears to have been taken from petitioner’s probation report, which contains an entry to the effect that petitioner was arrested for those offenses on October 19, 2009. However, petitioner was neither charged with nor convicted of those crimes. Petitioner brought the matter to the attention of his counselor, who told him that based upon these convictions, he could, among other things, be found to be a sexually violent predator and could theoretically be confined in state prison for life. However, his counselor did not correct the report. The entry was still in petitioner’s most recent ICC Committee Report dated January 26, 2011.
On May 22, 2011, petitioner sought habeas corpus relief in the Los Angeles Superior Court. Petitioner sought to withdraw his guilty plea, and claimed his trial counsel was ineffective for allowing him to enter the plea without advising him of the dire consequences. The superior court denied petitioner’s habeas corpus petition on May 27, 2011. The record contains two denial orders. In the first order, the court denied the petition on procedural grounds, including petitioner’s failure to raise the issue of errors in his ICC Committee Report either in prior writ petitions or on appeal. The second order (a computer-generated minute order) states: “There is no substantial right the defendant is attempting to enforce. The conviction of the defendant has been affirmed on appeal and judgment is final.”
As the superior court correctly observed, petitioner has in the past filed repetitive nonmeritorious writ petitions. Ordinarily, this would act as a procedural bar to petitioner’s present petition. (See McCleskey v. Zant (1991) 499 U.S. 467, 498; In re Clark (1993)
5 Cal.4th 750, 771, 775.) However, we find there is no procedural bar to petitioner’s raising the issue of the error in his ICC Committee Report because he did not discover the error until April 2010, attempted to resolve the matter administratively, and learned in January 2011 that the problem had not been corrected.
The Attorney General concedes that the reference in petitioner’s January 26, 2011, ICC Committee report to a conviction for lewd and lascivious conduct with a child under 14 is erroneous and should be removed from the report.
DISPOSITION
The petition for a writ of habeas corpus is granted in part and denied in part. The Director of the Department of Corrections and Rehabilitation is directed to remove from petitioner’s ICC Committee Report (CDCR form 128-G), as well as from his Central File and any other documents prepared by the Department, any reference to petitioner having been convicted of the crime of lewd and lascivious conduct with a child under age 14. The petition is denied as to any other purported errors in the ICC report, alleged ineffective assistance of counsel, and petitioner’s request to withdraw his plea.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.
ASHMANN-GERST
We concur:


__________________________, P. J. _______________________, J.
BOREN CHAVEZ

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