People v. Alexander CA2/3 ( 2020 )

Filed 12/16/20 P. v. Alexander CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300927
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BH012563
v.
STEVEN ALEXANDER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Dismissed.
Sally Patrone Brajevich, 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, Assistant
Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Steven Alexander appeals from the denial of a
habeas petition seeking correction of his custody credits. He
argues that the court improperly reduced his credits outside his
presence and without the assistance of counsel and asks us to
remand the matter for the court to resentence him. We conclude
we lack jurisdiction over the appeal and dismiss it.
BACKGROUND
In 2012, defendant was convicted, in case No. PA069032, of
two counts of first degree burglary with a person present (Pen.
Code,1 § 459), one count of second degree burglary (§ 459), three
counts of resisting an executive officer (§ 69), and one count of
battery with injury on a peace officer (§ 243, subd. (c)(2)). He was
sentenced to a second-strike term of 25 years four months in
state prison. The court classified defendant’s convictions as
serious felonies and awarded him 20 percent conduct credit.
In 2016, defendant asked the California Department of
Corrections and Rehabilitation (CDCR) why he was receiving 15
percent conduct credit notwithstanding the court’s determination
that he was entitled to 20 percent. A series of administrative
appeals followed, all of which ratified CDCR’s actions.
Nevertheless, CDCR eventually wrote to the court to ask
for clarification as to whether defendant’s first degree burglary
convictions were serious felonies (§ 1192.7, subd. (c)(18) [“any
burglary of the first degree” is a serious felony]) or violent
felonies (§ 667.5, subd. (c)(21) [“Any burglary of the first degree,
as defined in subdivision (a) of Section 460, wherein it is charged
1 All undesignated statutory references are to the Penal Code.
2
and proved that another person, other than an accomplice, was
present in the residence during the commission of the burglary”
is a violent felony]).2 CDCR noted that although the crimes’
descriptions in the abstract of judgment included the language
“Person Present,” the sentencing minute order referred to the
offenses as serious felonies. On July 26, 2018, the court reviewed
the sentencing transcript, abstract of judgment, and court
minutes, and determined counts 1 and 2 were both violent
felonies. Defendant was not present and was not represented by
counsel.
On July 12, 2019, defendant filed a petition for writ of
habeas corpus seeking to correct his custody credits.3 On
August 16, 2019, the petition was denied by memorandum. The
court determined that under section 667.5, subdivision (c)(21),
defendant’s first degree burglary convictions were violent
felonies. As such, under section 2933.1, subdivision (a), he was
entitled to no more than 15 percent custody credit.
On September 19, 2019, defendant filed a notice of appeal.
DISCUSSION
Defendant contends that the court erred by reducing his
custody credits outside his presence and without the benefit of
counsel. The People argue that because this is an appeal from the
2Defendant’s February 21, 2020, motion to augment the record on
appeal is granted. The record is hereby augmented with exhibits A, B,
and C attached to counsel’s declaration.
3An earlier habeas petition, filed January 10, 2018, was denied
without prejudice because defendant failed to attach required
supporting documentation.
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denial of a habeas petition, we must dismiss it as nonjusticiable.
We agree with the People.
A superior court order denying a criminal defendant’s
petition for writ of habeas corpus is not appealable. (§§ 1237,
1506; 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.”].) Here, the court denied defendant’s
habeas petition. Because that order is not an appealable order,
we must dismiss the appeal. (See In re Mario C. (2004) 124
Cal.App.4th 1303, 1307 [“[A] reviewing court is ‘without
jurisdiction to consider an appeal from a nonappealable order,
and has the duty to dismiss such an appeal upon its own
motion.’ ”].)4
4 To the extent defendant purports to appeal from the July 26, 2018
order, by a different bench officer, in case No. PA069032, that
reclassified his felonies as violent rather than serious, we would still
lack jurisdiction to consider the merits of this matter because the
notice of appeal filed on September 19, 2019, was untimely. (Cal. Rules
of Court, rules 8.308(a) [notice of appeal must be filed within 60 days],
8.25(b)(5) [timeliness of filings by prison inmates].) We also note that
notwithstanding his contrary assertion, according to the prison mail
log defendant provided to this court, he received a letter from the Los
Angeles Superior Court, North Valley District, on August 6, 2018, 13
days after the corrected minute order was filed.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
DHANIDINA, J.
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