The opinion of the court was delivered by: Hull J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant William Thomas Coats was sentenced to 25 years to life plus 15 years in state prison after a jury convicted him of corporal injury of a cohabitant, criminal threats and false imprisonment, and found he had three prior strike convictions. (People v. Coats (Oct. 14, 2008, C057674) [nonpub. opn.].)*fn1
Defendant appealed and we affirmed the judgment. The remittitur issued on January 22, 2009. (See People v. Coats (Oct. 12, 2010, C063576) [nonpub. opn.].)
On November 5, 2009, defendant filed a motion to modify the sentence. The trial court denied the motion. (People v. Coats, supra, C063576.) Defendant appealed, but thereafter properly conceded his claim was barred by the doctrine of res judicata. We dismissed the appeal on that basis. (Coats, C063576.)
In August 2010, defendant filed a motion entitled, "First Amendment Motion & Petition for Resentencing & Modification of Draconian Illegally Imposed Sentence Enhancements in Direct Flagrant Violation of the U.S. Constitution Under Apprendi v. New Jersey (120 S.Ct. 2348)."*fn2 The one-page motion argued that "any fact [which] increases the penalty for a crime beyond the prescribed statutory maximum (mid-term) must be submitted to a jury and proved beyond a reasonable doubt" and requested that the court "modify and resentence in accordance with Apprendi v. New Jersey."
The trial court issued a minute order stating it had no jurisdiction to entertain the claim because "[d]efendant was sentenced to state prison on December 5, 2007, and remanded into the custody of the Sheriff for delivery to the Department of Corrections and Rehabilitation, at which time this court became ousted of jurisdiction over the cause (see generally People v. Karaman (1992) 4 Cal.4th 335)."
The court noted that while it could correct an unlawful sentence (People v. Welch (1993) 5 Cal.4th 228; In re Harris (1993) 5 Cal.4th 813, 842; People v. Serrato (1973) 9 Cal.3d 753, 763, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1), that exception did not apply to defendant, whose claim "does not lie in unlawfulness." The court noted further that "[a]n Apprendi claim requires examination of the record to determine the reasons given for the sentencing choices, thus entertaining the instant motion is not authorized under Welch."
The court also refused to construe the motion as a petition for writ of habeas corpus, finding that "[a] habeas petition at this time would be untimely and successive, and would be subject to the procedural bar of In re Robbins (1998) 18 Cal.4th 770, 811-812, 812 fn. 32 and In re Clark (1993) 5 Cal.4th 750, 774-775, and no exception to that bar would apply." The court found the claim was procedurally barred "as a claim that could have been but was not raised either at the trial court level or on appeal (In re Seaton (2004) 34 Cal.4th 193), and no exception to that bar would apply."
Finally, considering the claim on its merits, the court found that defendant's sentence of 25 years to life plus three five-year enhancements (Pen. Code, § 667, subd. (a)) pursuant to the three strikes law (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), did not implicate either Apprendi or Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] and the claim therefore failed on the merits. The court ordered the motion dismissed "for lack of jurisdiction."
Defendant filed a timely notice of appeal and we appointed counsel to represent him. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief which contains the following five arguments: (1) defendant did not receive the proper admonishments under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2) defendant's attorney failed to raise, "as a truly mitigating circumstance" at trial or at sentencing, the fact that defendant had ongoing mental health issues; (3) use of defendant's prior convictions to enhance his sentence was invalid under Apprendi "or any other valid point of law"; (4) defendant's constitutional rights were violated because he was not present for, and did not waive his right to be present for, the bifurcated trial of his prior convictions; and (5) defendant's trial counsel was ...