Opinion
D051451 D052742
5-7-2008
THE PEOPLE, Plaintiff and Respondent, v. PETER CORONA, Defendant and Appellant. In re PETER CORONA on Habeas Corpus.
NOT TO BE PUBLISHED
A jury convicted Peter Corona of the sale of a controlled substance (Health & Saf. Code, §§ 11352, subd. (a)) and possessing a controlled substance for sale (§ 11351). The trial court sentenced Corona to 10 years in prison: the lower term of three years for selling a controlled substance doubled by virtue of Coronas prior strike, with an additional four years based on Coronas four prison priors. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b), 668.) The court stayed imposition of sentence on the possession for sale count under Penal Code section 654.
In addition to Coronas prior strike offense under the three strikes law for armed robbery, Corona has a lengthy criminal record consisting of 13 other adult convictions over the past 25 years.
FACTS
On December 8, 2006, San Diego police officers conducted a sting operation in Chicano Park. As part of the operation, an undercover officer approached Paul Hamilton Alford, Julio Flores and Corona, who were standing together, and asked whether they had any heroin. Corona asked the officer how much she wanted, and the officer responded "twenty," i.e., $20 worth. The officer had a prerecorded $20 bill in her hand, which Corona reached out and grabbed. Corona then instructed Flores, "Give it to her." Flores walked away, with Corona following. Corona soon returned and placed a small plastic bag containing a brown tar like substance (later determined to be .09 grams of tar heroin) in the officers hand. Upon receiving the heroin, the officer signaled nearby police who arrested and searched Flores and Corona. Flores had the $20 prerecorded bill in his pants pocket. Corona had a piece of "black, tar-ish substance" later determined to be 0.11 grams of tar heroin in his pants pocket.
Corona was not charged with possessing the heroin found in his pocket. Rather both charges were based on the drugs Corona transferred to the undercover officer. The prosecutor and Coronas counsel emphasized in argument that the heroin alleged to have been sold, as well as possessed for sale, was solely the heroin provided to the undercover officer.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence introduced in the superior court. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has not identified any possible, but not arguable, issues under Anders v. California (1967) 386 U.S. 738 (Anders).
We granted Corona permission to file a brief on his own behalf. He has not responded. During the time that Corona was granted to file a supplemental brief, however, he filed a petition for a writ of habeas corpus in this court. In an abundance of caution, we will treat the writ petition both as a supplemental brief for purposes of the Wende appeal (thus addressing each of the discernible claims; see People v. Kelly (2006) 40 Cal.4th 106, 110) and as a petition for habeas corpus in these consolidated matters.
Coronas petition is difficult to parse. It consists mainly of unconnected assertions of general legal propositions; in addition, a number of the asserted propositions appear to be unrelated to any cognizable claim in the case. The petition itself consists of an initial form cover letter followed by a brief summary of legal principles regarding double jeopardy, followed by a series of exhibits, which appear to consist of separate petitions raising unrelated claims.
Construing the entirety of the petition as a single writ petition, and addressing only the contentions that we are able to discern, we find no merit to any of Coronas claims. First, Corona appears to contend that his sentence violated the constitutional rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466, but as Corona did not receive an upper term sentence and his sentence was enhanced under the three strikes law solely based on his prior convictions, there is no cognizable Apprendi claim. (See Cunningham v. California (2007) 549 U.S. 270, ___ [127 S.Ct. 856, 860] ["the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant"].)
Second, Corona argues that the trial court erred by imposing a "prison prior" enhancement under Penal Code section 667.5, subdivision (b), based on a conviction that was also utilized to double his initial sentence under the three strikes law. (People v. Jones (1993) 5 Cal.4th 1142, 1153 [holding that certain dual use of convictions is prohibited].) However, the record demonstrates that Corona had four prison priors in addition to the prior strike, and that the trial court relied on those prison priors in enhancing the sentence under Penal Code section 667.5, subdivision (b). Thus, there was no impermissible dual use.
Finally, Corona argues that the Department of Corrections incorrectly believes that Penal Code section 2933.1 applies to his sentence, limiting the number of good conduct credits he can accrue. (In re Reeves (2005) 35 Cal.4th 765, 780 ["section 2933.1[, subdivision ](a) has no application to a prisoner who is not actually serving a sentence for a violent offense; such a prisoner may earn credit at a rate unaffected by the section"].) This final claim is not cognizable on appeal as it is not directed at any action of the trial court, but rather is based on an alleged error on the part of the Department of Corrections. While this issue can be raised in a writ petition, Corona has failed to provide any documentation for this claim and fails to allege that he has exhausted his administrative remedies in challenging the Departments (allegedly erroneous) classification, as he is required to do in such a context. (See People v. Duvall (1995) 9 Cal.4th 464, 474 [a petition for habeas corpus "should both (i) state fully and with particularity the facts on which relief is sought" "as well as (ii) include copies of reasonably available documentary evidence supporting the claim"]; In re Dexter (1979) 25 Cal.3d 921, 925 ["As a general rule, a litigant will not be afforded judicial relief unless he has exhausted available administrative remedies"].) Consequently, we reject the claim both in our consideration of the appeal and for purposes of the writ petition, although we do so without prejudice to it being raised in a subsequent petition, with proper documentation, after Corona has exhausted his administrative remedies.
In addition to addressing the claims raised in Coronas petition, we have also reviewed the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738. Our review has disclosed no reasonably arguable appellate issues. Competent counsel has represented Corona on this appeal.
DISPOSITION
The judgment is affirmed. The petition is denied.
We concur:
Haller, Acting P. J.
McDonald, J.