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In Re James Thomas Mabbs On Habeas Corpus.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


February 8, 2012

IN RE JAMES THOMAS MABBS ON HABEAS CORPUS.

(Super. Ct. No. CM030700)

The opinion of the court was delivered by: Raye , P. J.

In re Mabbs CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

v.

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 degree burglary conviction. On June 9 we granted the People's request.*fn3

To date, aside from petitioner's contention that the Contra Costa County conviction for first degree burglary cannot be used to deny him the additional credits provided by the January 25 amendment because it was never pleaded and proven, he offers nothing further on the issue. For reasons to follow, we reject petitioner's position and shall deny the petition.

General Overview of Habeas Corpus

Initially, we note that because petitioner was sentenced before January 25, 2010, the effective date of the amendment to section 4019, there was no reason for the People to plead and prove the prior serious felony conviction. Indeed, the People's first opportunity to address the issue is in the present habeas corpus proceeding.

A habeas corpus proceeding begins with the filing of a verified petition, which must allege facts that, if true, would entitle the petitioner to the relief he or she seeks. (People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall); People v. Romero (1994) 8 Cal.4th 728, 737 (Romero).) If the petitioner has made a prima facie case for relief, the court will issue the writ or, more commonly as in this case, an order to show cause (OSC). (Duvall, at p. 475; Romero, at pp. 737-738.)

The response to the OSC is the return, which becomes the principal pleading in the proceeding, analogous to the complaint in a civil proceeding. (Romero, supra, 8 Cal.4th at pp. 738-739.) The return must allege facts contradicting the basis of the petitioner's claim and, where appropriate, provide documentary evidence, affidavits, or other materials that will enable the court to determine which issues are truly in dispute. (Duvall, supra, 9 Cal.4th at p. 476.)

After the filing of the return, the petitioner may file a traverse to the return, which is analogous to the answer in a civil case. (Duvall, supra, 9 Cal.4th at pp. 476-477; Romero, supra, 8 Cal.4th at p. 739.) The traverse admits or denies the facts alleged in the return and may allege additional facts in support of the claim upon which the OSC was issued. (Duvall, at pp. 476-477; Romero, at p. 739; In re Marquez (2007) 153 Cal.App.4th 1, 12.) Any facts alleged in the return that are not denied by the traverse are deemed true. (Duvall, at p. 477.)

"Once the issues have been joined in this way, the court must determine whether an evidentiary hearing is needed. If the written return admits allegations in the petition that, if true, justify the relief sought, the court may grant relief without an evidentiary hearing. [Citations.] Conversely, consideration of the written return and matters of record may persuade the court that the contentions advanced in the petition lack merit, in which event the court may deny the petition without an evidentiary hearing. [Citations.]" (Romero, supra, 8 Cal.4th at p. 739; see also Cal. Rules of Court, rule 8.386(f).)

Prior Serious Felony Conviction is a Material Fact

Whether petitioner has been convicted of a serious felony is a material fact in the petition because if so convicted he is automatically disqualified from receiving the benefit of the January 25 amendment, and there is no need to further consider the petition.

Return as a Pleading

The return alleges petitioner is ineligible for the January 25 amendment because he had a prior conviction for first degree burglary, a serious felony. (§§ 459, 460.)*fn4 This allegation constitutes a pleading of the prior serious felony conviction.

Proof of the Prior

The certified documents provided by the People regarding the stricken prior burglary allegation in Contra Costa County case No. 8917015 consist of the following: an information filed August 24, 1989, charging James Thomas Mabbs with one count of first degree residential burglary; the court minutes for January 26, 1990, showing on that date James Thomas Mabbs pleaded guilty to the first degree burglary charge and was sentenced to state prison for two years; and original and amended abstracts of judgment reflecting James Thomas Mabbs's conviction of the first degree burglary.*fn5

"'[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold requirements of admissibility. [Citation.] Some evidence must rebut this presumption before the authenticity, accuracy, or sufficiency of the prior conviction records can be called into question.' [Citation.]" (People v. Delgado (2008) 43 Cal.4th 1059, 1066.) "As an out-of-court declaration, admitted for the truth of the information contained therein, the abstract is hearsay, but it is nonetheless presumptively admissible for its truth, as a report of the conviction it summarizes, under various exceptions to the hearsay rule." (Id. at p. 1071.)

In the traverse, aside from realleging that he has not been convicted of any serious felonies, petitioner offers no declaration or affidavit stating that he is not the individual described in the Contra Costa County case or that for any reason the certified documents supplied by the People are inaccurate or inadmissible in evidence.

Because petitioner has not called into question the accuracy, authenticity, or admissibility of the certified documents provided by the People, it is now proven that petitioner has a prior serious felony conviction. Thus, petitioner is ineligible to receive the increased conduct credit provided by the January 25 amendment.

DISPOSITION

The petition for writ of habeas corpus is denied. The order to show cause, having served its purpose, is discharged.

We concur: BLEASE , J. MURRAY , J.


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