THE PEOPLE v. JOHN RUDY CORTEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

On June 14, 2010 John Rudy Cortez entered a negotiated plea of no contest to kidnapping (Pen.Code, § 207, subd. (a)) ¹ and admitted using a firearm to commit the offense (§ 12022.53, subd. (b)).  Cortez also admitted having suffered a prior serious or violent felony conviction (kidnapping) within the meaning of the “Three Strikes” law (§§ 667, subds.(b)-(i);  1170.12, subds. (a)-(d)).

On September 17, 2010, in accordance with the plea agreement, the trial court sentenced Cortez to an aggregate state prison term of 20 years, consisting of 10 years for kidnapping (double the middle term of five years under the Three Strikes law) plus 10 years for the firearm-use enhancement.   The court ordered Cortez to pay a $30 court security fee, a $30 criminal conviction assessment and a $200 restitution fine.   The court imposed and suspended a parole revocation fine pursuant to section 1202.45.   The court dismissed the remaining counts and special allegations on the People's motion.²  Cortez was awarded a total of 805 days of presentence credit (700 actual days and 105 days of conduct credit) pursuant to section 2933.1.

After Cortez was received by the California Department of Corrections and Rehabilitation, he was placed in a security housing unit as a “validated prison gang member” within the meaning of section 2933.6, and thereby rendered ineligible for conduct credits.³

On June 1, 2011 Cortez filed a request for the trial court to recall his sentence under section 1170, subdivision (d), and to award him the conduct credit to which he believed he was entitled.   The trial court denied the request on June 6, 2011.

Cortez filed a notice of appeal in which he checked the box indicating, “This appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.”

We appointed counsel to represent Cortez on appeal.   After an examination of the record, counsel filed an opening brief in which no issues were raised.   On August 22, 2011 we advised Cortez he had 30 days in which to personally submit any contentions or issues he wished us to consider.   No response has been received to date.

We have examined the entire record and are satisfied Cortez's attorney has fully complied with the responsibilities of counsel and no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly (2006) 40 Cal.4th 106, 112–113;  People v. Wende (1979) 25 Cal.3d 436, 441.)

The June 6, 2011 order is nonappealable.  (People v. Pritchett (1993) 20 Cal.App.4th 190, 194 [“an order denying a defendant's request to resentence pursuant to section 1170, subdivision (d) is not appealable as an order affecting the substantial rights of the party”].)   Even if we were to deem Cortez's request to have been a petition for writ of habeas corpus, the June 6, 2011 order is still not appealable.  (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7;  In re Hochberg (1970) 2 Cal.3d 870, 876, disapproved on other grounds in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.) “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.”  (In re Clark, at p. 767, fn. 7.)

The appeal is dismissed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. In addition to the kidnapping charge to which he pleaded (count 7), Cortez was also charged in an amended information with kidnapping for ransom (§ 209, subd. (a), count 1), forgery (§ 475, subd. (c), count 2), assault with a firearm (§ 245, subd. (a)(2), counts 3 and 4), making a criminal threat (§ 422, count 5) and pandering (§ 266i, subd. (a)(2), count 6).   As to counts 1, 3, 4, 6 and 7, the information alleged Cortez had used a firearm to commit the offenses (§§ 12022.5, 12022.53, subd. (b) & (c)).  The information further alleged as to counts 1 through 5 that Cortez had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law and section 667, subdivision (a)(1), and had served two separate prison terms for felonies (§ 667.5, subd. (b))..  FN2. In addition to the kidnapping charge to which he pleaded (count 7), Cortez was also charged in an amended information with kidnapping for ransom (§ 209, subd. (a), count 1), forgery (§ 475, subd. (c), count 2), assault with a firearm (§ 245, subd. (a)(2), counts 3 and 4), making a criminal threat (§ 422, count 5) and pandering (§ 266i, subd. (a)(2), count 6).   As to counts 1, 3, 4, 6 and 7, the information alleged Cortez had used a firearm to commit the offenses (§§ 12022.5, 12022.53, subd. (b) & (c)).  The information further alleged as to counts 1 through 5 that Cortez had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law and section 667, subdivision (a)(1), and had served two separate prison terms for felonies (§ 667.5, subd. (b)).

FN3. Effective January 25, 2010, an amendment to section 2933.6 denies conduct credits to state prison inmates who are validated gang members placed in a secured housing unit. (§ 2933.6;  In re Sampson (2011) 197 Cal.App.4th 1234, 1237.).  FN3. Effective January 25, 2010, an amendment to section 2933.6 denies conduct credits to state prison inmates who are validated gang members placed in a secured housing unit. (§ 2933.6;  In re Sampson (2011) 197 Cal.App.4th 1234, 1237.)

WOODS, J. JACKSON, J.