(Super. Ct. No. CM030700)
The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On April 30, 2009, pursuant to a plea bargain in case No. CM030700, petitioner James Thomas Mabbs was sentenced to state prison for a stipulated term of five years eight months based upon his no contest pleas to receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); further statutory references are to the Penal Code unless otherwise designated) and receiving stolen property (§ 496, subd. (a)), and his admission to having served two prior prison terms (§ 667.5, subd. (b)).*fn1 In accordance with the plea bargain, the court struck an allegation that petitioner had a serious prior felony conviction for first degree burglary in Contra Costa County case No. 8917015.
At the time of petitioner's sentencing, section 4019 provided that conduct credits could be earned at the rate of two days for every four days served. (§ 4019, former subds. (b), (c).) Petitioner received credits of 52 days for actual time served and 26 days for conduct, a total of 78 days of presentence custody credit. Petitioner did not appeal, and his judgment became final on June 30, 2009.
Effective January 25, 2010, the Legislature enacted Senate Bill No. 3X 18,*fn2 which amended section 4019 (the January 25 amendment) to provide essentially two days of conduct credit for every two days actually served in presentence custody to a class of prisoners (eligible prisoners) deemed safe for early release from prison. This class consists of prisoners who were neither required to register as sex offenders nor committed for serious felonies, or those who had no prior convictions for serious or violent felonies.
On July 14, 2010, petitioner filed a petition for writ of habeas corpus in the Butte County Superior Court seeking retroactive application of the January 25 amendment under principles of equal protection. Petitioner also alleged, under penalty of perjury, that he "is not required to register as a sex offender" and that "[t]his case does not involve any prior convictions for serious or violent felony offenses." On July 19, 2010, the court denied the petition based upon the reasoning of People
Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010 (S181808), which concluded that the January 25 amendment was not retroactive because it failed to rebut section 3's presumption against a statute's being retroactive unless so declared.
On August 16, 2010, petitioner filed a habeas corpus petition in this court renewing his equal protection argument and again affirming, under penalty of perjury, that he was not disqualified from receiving the increased rate for earning conduct credits provided by the January 25 amendment because of a prior serious felony conviction. We issued an order to show cause and appointed counsel for petitioner.
In their return, the People urge several reasons why petitioner is not entitled to the benefit of the January 25 amendment, including the assertion he is ineligible for such benefit because on April 1, 2009, he was convicted of assault with a semiautomatic firearm (§ 245, subd. (b)) with an enhancement for personal use of a firearm (§ 12022.5, subds. (a), (d)), a serious felony (§ 1192.7, subd. (c)(31)). The assertion is supported by People's exhibit No. 1 -- a certified copy of the abstract of judgment in Butte County Superior Court case No. CM028752, identifying defendant as "James Thomas Mabbs" with a birth date of "03-22-82."
In the traverse, petitioner denies that he is the James Thomas Mabbs referred to in People's exhibit No. 1, noting his birth date is "05-01-64," as shown by the abstract of judgment in case No. CM030700, the case for which he is seeking additional conduct credit. With regard to the stricken prior conviction for residential burglary in Contra Costa County case No. 8917015 that was alleged in the information, petitioner does not dispute he is the James Thomas Mabbs in that case. Instead, he argues that because the conviction has been stricken it was never pleaded and proven, and for that reason, it cannot be used against him.
On May 27, 2011, the People, recognizing that their exhibit No. 1 was not the abstract of judgment of petitioner in this case, filed a request that we take judicial notice of certified documents in Contra Costa County case No. 8917015 reflecting petitioner's first ...