People v. Shaw CA4/2 ( 2015 )

Filed 9/9/15 P. v. Shaw CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E063495
v. (Super.Ct.No. FVA00085)
RONALD JAMES SHAW, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed.
Ronald James Shaw, in pro. per.; Leslie A. Rose, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On January 27, 2015, defendant and appellant Ronald James Shaw filed a “Motion
To Correct A Prior Conviction” in the superior court. On February 20, 2015, the court
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denied the motion. After defendant filed the notice of appeal, this court appointed
appellate counsel to represent defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal. 3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case
and identifying three potentially arguable issues: (1) whether the court erred in finding
defendant’s 1993 conviction for second degree robbery a serious felony; (2) whether the
court erred in denying defendant’s motion if considered a Penal Code section 1170.1261
petition; and (3) whether the court erred in denying defendant’s motion if considered a
section 1170.18 petition.
Defendant was offered the opportunity to file a personal supplemental brief, which
he has done. In his brief, defendant contends the trial court erred in finding his prior
conviction qualified as a serious felony. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On January 18, 1993, a Kmart store loss prevention officer (the victim) was
alerted to a woman seen shoplifting. The victim saw the woman packing clothes into a
duffle bag which belonged to the Kmart store. The woman left the store with the duffle
bag and the victim attempted to stop her. The woman resisted and the two became
embroiled in a struggle. The victim identified defendant as the individual who then
grabbed “her shoulder and the back of her head holding onto her hair.” Defendant then
grabbed her and rammed her “head first into the exterior wall of the K-Mart three times
1 All further statutory references are to the Penal Code unless otherwise indicated.
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. . . .” The victim obtained, and provided to the police, the make, model, color, and
license plate of defendant’s car as he drove away with the woman inside. The victim
believed defendant had been waiting outside for the woman.
On January 25, 1993, the People charged defendant by felony complaint with
second degree robbery by means of force and fear. The complaint specifically reflected
the offense was “a serious felony within the meaning of . . . Section 1192.7[, subdivision]
(c)(19).” The complaint additionally alleged defendant had suffered a prior serious
felony conviction under former section 667, subdivision (a).
Defendant pled guilty as charged on count 1 and admitted the prior conviction
allegation. In return, the People agreed to a two-year prison term with a five-year term
on the enhancement which was stricken pursuant to a Cruz2 waiver when defendant
showed up at sentencing. The police report provided the factual basis for the plea.
On May 6, 2003, a jury convicted defendant of petty theft with a prior. (§ 666).
(People v. Shaw (Feb. 15, 2005, E035425) [nonpub. opn.] [at pp. *1-*2]; In re Ronald
James Shaw on Habeas Corpus, case No. E050530, p. 2.)3 The trial court found true
allegations defendant had suffered two prior strike convictions. The court sentenced
defendant to 25 years to life in state prison. On appeal, defendant contended the court
abused its discretion by refusing to dismiss one of his prior convictions pursuant to
2 People v. Cruz (1988) 44 Cal. 3d 1247, 1254.
3 We take judicial notice of this court’s file in case No. E050530, defendant’s
petition for writ of habeas corpus filed in this court on April 2, 2010. (Evid. Code
§§ 452, subd. (d), 459.)
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People v. Superior Court (Romero) (1996) 13 Cal. 4th 497. We affirmed the judgment.
(People v. Shaw, supra, E035425 [at p. *2].)
On July 20, 2009, the superior court denied defendant’s petition for writ of habeas
corpus. On April 2, 2010, defendant filed a petition for writ of habeas corpus in this
court in which he contended his conviction for second degree robbery could not legally
be used as a prior strike enhancement because the court failed to obtain a factual basis for
the offense establishing that it was a serious felony. On April 15, 2010, we summarily
denied the petition.
On January 27, 2015, defendant filed a “Motion To Correct A Prior Conviction” in
the superior court. Defendant repeatedly contended he pled guilty to “a non-serious
felony of 2nd degree robbery.” On February 20, 2015, the court denied defendant’s
motion. The court noted defendant “pled guilty to [section] 211 . . . , which is a ‘serious
felony’ pursuant to [section] 1192.7[, subdivision] (c)(1)(19) . . . .” On April 21, 2015,
defendant filed a notice of appeal from the court’s order indicating his appeal’s legal
basis was “[o]ther,” but not specifying, as requested on the form, what that basis was.
II. DISCUSSION
Defendant contends the court below erred in determining his prior conviction for
second degree robbery qualified as a prior serious felony conviction and, hence, as a prior
strike conviction for purposes of enhancing his sentence to an indeterminate term of 25
years to life. We disagree.
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First, defendant’s “Motion To Correct A Prior Conviction” was substantively,
though not in name, a petition for writ of habeas corpus. Defendant’s remedy from the
denial of a petition for writ of habeas corpus is the filing of an original petition for writ of
habeas corpus in this court. (In re Clark (1993) 5 Cal. 4th 750, 767, fn. 7.) Thus, we
could simply summarily dismiss defendant’s appeal. Nevertheless, we shall exercise our
discretion to address the merits of defendant’s appeal. (See People v. Segura (2008) 44
Cal. 4th 921, 928, fn. 4.)
Second, defendant’s claims could have, and should have, been raised in appeals
from either of his convictions in 1993 or 2003. (See In re Dixon (1953) 41 Cal. 2d 756,
759 [“The general rule is that habeas corpus cannot serve as a substitute for an appeal,
and, in the absence of special circumstances constituting an excuse for failure to employ
that remedy, the writ will not lie where the claimed errors could have been, but were not,
raised upon a timely appeal from a judgment of conviction.”].) Indeed, in his appeal
from his 2003 conviction, defendant argued the court should have stricken his 1993
conviction as a prior strike conviction. (People v. Shaw, supra, E035425 [at p. *2].)
Third, as noted above, defendant has already raised this exact issue in a previous
habeas corpus petition filed in this court. This court is not required to consider
successive petitions raising the same, or even different, issues which were raised, or not
raised, in a previous petition. (§ 1475; In re Clark, supra, 5 Cal.4th at p. 771.)
Fourth and finally, defendant’s claim fails on the merits. Defendant pled guilty to
second degree robbery, an offense which is statutorily defined as a serious felony.
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(§ 1192.7, subd. (c)(19) [“As used in this section, ‘serious felony’ means any of the
following:” “robbery”].) There is no such thing as “a non-serious felony of 2nd degree
robbery.” Moreover, the felony complaint containing the charge to which defendant pled
guilty explicitly reflected the offense was “a serious felony within the meaning of . . .
Section 1192.7[, subdivision] (c)(19).”
Furthermore, the police report which established the factual basis for the plea
reflected sufficient evidence that defendant aided and abetted the woman who stole
property from the Kmart store by assaulting the loss prevention officer who attempted to
stop the woman and by driving the woman away from the scene of the crime. Defendant
asserts in his brief that he was “personally unacquainted” with the woman; however, the
police report reflects defendant informed the investigating officer that he knew the
woman. The victim believed defendant was waiting for the woman. Thus, sufficient
evidence supported the court’s finding that defendant had been convicted of second
degree robbery, a serious felony.
Under People v. Kelly (2006) 40 Cal. 4th 106, we have conducted an independent
review of the record and find no arguable issues. (§§ 1170.126 subd. (b) [“Any person
serving an indeterminate term of life imprisonment . . . upon conviction . . . of a felony
. . . that [is] not defined as serious . . . by . . . subdivision (c) of Section 1192.7, may file a
petition for a recall of sentence . . . .”], 1192.7, subd. (c)(19) [“robbery”], 1170.18, subds.
(a)-(i) [a petition for recall of sentence requires the court to evaluate the petitioner’s
entire criminal conviction history, disciplinary record and record of rehabilitation, and
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any other evidence in order to determine whether resentencing would pose an
unreasonable risk of danger to public safety].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
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