Filed 7/28/16 Lyons v. Kernan 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



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



WILLY CARL LYONS,                                                                            C077367

                   Plaintiff and Respondent,                                    (Super. Ct. No. 14 CV 8778)

         v.

SCOTT KERNAN, as Secretary, etc.,

                   Defendant and Appellant.




         Plaintiff Willy Carl Lyons (Lyons), imprisoned and representing himself in
propria persona, appeals from an order denying his petition for writ of mandate against
the California Department of Corrections and Rehabilitation (CDCR). The petition
challenged the manner in which the CDCR calculated Lyons’s inmate classification
score, and sought an order compelling the CDCR to recalculate Lyons’s score based on
revisions to the scoring system implemented in July 2012. (Cal. Code Regs., tit. 15,



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§ 3075.1.)1 The trial court denied the petition sua sponte. The CDCR, which was never
properly served, did not appear before the trial court and does not appear in this appeal.
Consequently, the Attorney General declined to file a response. Finding no error, we
affirm.
                                      BACKGROUND
          Lyons is an inmate at Mule Creek State Prison. He is currently serving a sentence
of seven years to life plus 216 years for, among other things, attempted murder (Pen.
Code, § 187), forcible rape (Pen. Code, § 261), lewd or lascivious acts on a child under
the age of 14 years (Pen. Code, § 288, subds. (a)-(c)), sodomy by force (Pen. Code,
§ 286, subd. (c)), forcible penetration by a foreign object (Pen. Code, § 289), and
unlawful sexual intercourse with a minor (Pen. Code, § 261.5). Lyons has been
imprisoned since 1989.
          The CDCR uses an inmate classification system to ensure inmates are properly
housed and supervised. (§ 3375 et seq.) An inmate’s classification score determines the
security level of the penal institution or facility in which he or she will be placed.
(§ 3375, subd. (d).) Inmate classification scores are initially calculated when an inmate is
committed to custody (§ 3375, subd. (a)), and adjusted from time to time based upon the
inmate’s conduct in custody (§ 3375.4).
          Effective July 1, 2012, the CDCR implemented revisions to the inmate
classification scoring system. (§ 3375.3, Cal. Reg. Notice Register 2012, No. 26 (filed
June 26, 2012, as an emergency, operative July 1, 2012).) Among other things, the new
scoring system limits the points an inmate can receive for the length of his or her term
(§ 3375.3, subd. (a)(3)(A)), and discontinues the practice of assessing points for such




1     Undesignated regulatory references are to title 15 of the California Code of
Regulations unless otherwise stated.

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background factors as age, marital status, employment history, and military service
(§ 3375.3, subd. (a)).
       On June 19, 2013, Lyons appeared before the Unit Classification Committee
(UCC) for an annual review of his inmate classification score. (§ 3376, subd. (d)(2)(A).)
Lyons acknowledged his inmate classification score was properly calculated pursuant to
the regulations in place at the time of his incarceration, but requested a recalculation of
his score under the new scoring system. The UCC denied Lyons’s request.
       On July 16, 2013, Lyons filed an inmate appeal seeking second level review of the
UCC’s decision. Lyons’s second level appeal was denied.
       Some time later, Lyons filed an inmate appeal seeking third level review of the
refusal to recalculate his inmate classification score.2 Lyons’s third level inmate appeal
was canceled as untimely pursuant to section 3084.6.3 Lyons subsequently filed a
request for reinstatement of his third level inmate appeal, which was also denied, thereby
exhausting Lyons’s administrative remedies.
       On April 15, 2014, Lyons filed a petition for writ of mandate in Amador County
Superior Court. The petition alleged that the CDCR’s failure to recalculate Lyons’s
inmate classification score constitutes a violation of the CDCR regulations. The petition
sought a writ of mandate compelling the CDCR to recalculate Lyons’s score.




2      Lyons has not provided us with a copy of his third level inmate appeal.
3      Specifically, the Office of Appeals examiner found that Lyons was required to file
his appeal within 30 days of July 1, 2012 (the effective date of the new regulations)
pursuant to section 3084.8, subdivision (b), which provides that an inmate “must submit
the appeal within 30 calendar days of: [¶] (1) The occurrence of the event or decision
being appealed, or; [¶] (2) Upon first having knowledge of the action or decision being
appealed, or; [¶] (3) Upon receiving an unsatisfactory departmental response to an appeal
filed.” (§ 3084.8, subd. (b).)

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       The petition was accompanied by a proof of service purporting to show service by
mail on the Secretary of the CDCR and the Office of the Attorney General for the State
of California (Attorney General). The proof of service was signed by Lyons.
       On April 25, 2014, the trial court sua sponte issued an order denying the petition,
stating: “The revisions to the classification scoring [system] are not to be applied
retroactively unless specifically indicated. Here retroactivity is not indicated. [Lyons]
has not shown that [the CDCR] is failing to comply with its duty under 15 CCR 3375. In
fact, [Lyons], by his request, is asking [the CDCR] to abrogate its ministerial duty in
favor of treating [Lyons’s] case differently from the other inmates in applying the
regulations governing the classification process.” Accordingly, the trial court denied the
petition with prejudice. The CDCR did not appear before the trial court.
       Lyons filed a timely notice of appeal. The CDCR has not appeared in this appeal.
                                       DISCUSSION
       On appeal, Lyons claims the CDCR’s failure to recalculate his inmate
classification score using the new scoring system constitutes a violation of his right to
equal protection under the federal and state Constitutions. (U.S. Const., 14th Amend.;
Cal. Const., art. I, § 7.) Lyons also claims his inmate appeals were timely. We need not
reach the merits of these claims as Lyons’s appeal fails for another reason.
       A fundamental rule of appellate review is that the appealed judgment or order is
presumed correct. On appeal, all intendments and presumptions are indulged in favor of
its correctness and error must be affirmatively shown. (Eisenberg, et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 8:15, p. 8-5; Schnabel v.
Superior Court (1993) 5 Cal.4th 704, 718; Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) “The burden of affirmatively demonstrating error is on the appellant.”
(Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)
Lyons fails to carry his burden of demonstrating error.



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       A petition for writ of mandate must be served in the same manner as the summons
in a civil action. (See Code Civ. Proc., § 1107; see also id. §§ 413.10-417.40.) Service
by a party to an action is ineffective. (See id. § 414.10 [“A summons may be served by
any person who is at least 18 years of age and not a party to the action” (italics added)];
see also Sullivan v. Sullivan (1967) 256 Cal.App.2d 301, 304-305.) Here, the proof of
service shows that Lyons purported to serve the CDCR and the Attorney General by mail.
Such service was ineffective. (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 865 [the
prohibition on service by a party is “strictly enforced”]; see also County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1226 [“Knowledge by a defendant of an action
will not satisfy the requirement of adequate service of a summons and complaint.”].)
       Lyons cannot demonstrate error because, in the absence of proper service on the
CDCR, the trial court could not have granted the petition in any case. We therefore
affirm the judgment.
                                      DISPOSITION
       The order denying the petition for writ of mandate is affirmed.


                                                        NICHOLSON             , Acting P. J.



We concur:



      BUTZ                  , J.




      MAURO                 , J.




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