Filed 9/9/15 P. v. Shaw CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063495

v.                                                                       (Super.Ct.No. FVA00085)

RONALD JAMES SHAW,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Affirmed.

         Ronald James Shaw, in pro. per.; Leslie A. Rose, under appointment by the Court

of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         On January 27, 2015, defendant and appellant Ronald James Shaw filed a “Motion

To Correct A Prior Conviction” in the superior court. On February 20, 2015, the court




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denied the motion. After defendant filed the notice of appeal, this court appointed

appellate counsel to represent defendant.

       Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case

and identifying three potentially arguable issues: (1) whether the court erred in finding

defendant’s 1993 conviction for second degree robbery a serious felony; (2) whether the

court erred in denying defendant’s motion if considered a Penal Code section 1170.1261

petition; and (3) whether the court erred in denying defendant’s motion if considered a

section 1170.18 petition.

       Defendant was offered the opportunity to file a personal supplemental brief, which

he has done. In his brief, defendant contends the trial court erred in finding his prior

conviction qualified as a serious felony. We affirm.

                      I. FACTUAL AND PROCEDURAL HISTORY

       On January 18, 1993, a Kmart store loss prevention officer (the victim) was

alerted to a woman seen shoplifting. The victim saw the woman packing clothes into a

duffle bag which belonged to the Kmart store. The woman left the store with the duffle

bag and the victim attempted to stop her. The woman resisted and the two became

embroiled in a struggle. The victim identified defendant as the individual who then

grabbed “her shoulder and the back of her head holding onto her hair.” Defendant then

grabbed her and rammed her “head first into the exterior wall of the K-Mart three times

       1   All further statutory references are to the Penal Code unless otherwise indicated.

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. . . .” The victim obtained, and provided to the police, the make, model, color, and

license plate of defendant’s car as he drove away with the woman inside. The victim

believed defendant had been waiting outside for the woman.

       On January 25, 1993, the People charged defendant by felony complaint with

second degree robbery by means of force and fear. The complaint specifically reflected

the offense was “a serious felony within the meaning of . . . Section 1192.7[, subdivision]

(c)(19).” The complaint additionally alleged defendant had suffered a prior serious

felony conviction under former section 667, subdivision (a).

       Defendant pled guilty as charged on count 1 and admitted the prior conviction

allegation. In return, the People agreed to a two-year prison term with a five-year term

on the enhancement which was stricken pursuant to a Cruz2 waiver when defendant

showed up at sentencing. The police report provided the factual basis for the plea.

       On May 6, 2003, a jury convicted defendant of petty theft with a prior. (§ 666).

(People v. Shaw (Feb. 15, 2005, E035425) [nonpub. opn.] [at pp. *1-*2]; In re Ronald

James Shaw on Habeas Corpus, case No. E050530, p. 2.)3 The trial court found true

allegations defendant had suffered two prior strike convictions. The court sentenced

defendant to 25 years to life in state prison. On appeal, defendant contended the court

abused its discretion by refusing to dismiss one of his prior convictions pursuant to

       2   People v. Cruz (1988) 44 Cal.3d 1247, 1254.

       3  We take judicial notice of this court’s file in case No. E050530, defendant’s
petition for writ of habeas corpus filed in this court on April 2, 2010. (Evid. Code
§§ 452, subd. (d), 459.)

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People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We affirmed the judgment.

(People v. Shaw, supra, E035425 [at p. *2].)

       On July 20, 2009, the superior court denied defendant’s petition for writ of habeas

corpus. On April 2, 2010, defendant filed a petition for writ of habeas corpus in this

court in which he contended his conviction for second degree robbery could not legally

be used as a prior strike enhancement because the court failed to obtain a factual basis for

the offense establishing that it was a serious felony. On April 15, 2010, we summarily

denied the petition.

       On January 27, 2015, defendant filed a “Motion To Correct A Prior Conviction” in

the superior court. Defendant repeatedly contended he pled guilty to “a non-serious

felony of 2nd degree robbery.” On February 20, 2015, the court denied defendant’s

motion. The court noted defendant “pled guilty to [section] 211 . . . , which is a ‘serious

felony’ pursuant to [section] 1192.7[, subdivision] (c)(1)(19) . . . .” On April 21, 2015,

defendant filed a notice of appeal from the court’s order indicating his appeal’s legal

basis was “[o]ther,” but not specifying, as requested on the form, what that basis was.

                                     II. DISCUSSION

       Defendant contends the court below erred in determining his prior conviction for

second degree robbery qualified as a prior serious felony conviction and, hence, as a prior

strike conviction for purposes of enhancing his sentence to an indeterminate term of 25

years to life. We disagree.




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       First, defendant’s “Motion To Correct A Prior Conviction” was substantively,

though not in name, a petition for writ of habeas corpus. Defendant’s remedy from the

denial of a petition for writ of habeas corpus is the filing of an original petition for writ of

habeas corpus in this court. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) Thus, we

could simply summarily dismiss defendant’s appeal. Nevertheless, we shall exercise our

discretion to address the merits of defendant’s appeal. (See People v. Segura (2008) 44

Cal.4th 921, 928, fn. 4.)

       Second, defendant’s claims could have, and should have, been raised in appeals

from either of his convictions in 1993 or 2003. (See In re Dixon (1953) 41 Cal.2d 756,

759 [“The general rule is that habeas corpus cannot serve as a substitute for an appeal,

and, in the absence of special circumstances constituting an excuse for failure to employ

that remedy, the writ will not lie where the claimed errors could have been, but were not,

raised upon a timely appeal from a judgment of conviction.”].) Indeed, in his appeal

from his 2003 conviction, defendant argued the court should have stricken his 1993

conviction as a prior strike conviction. (People v. Shaw, supra, E035425 [at p. *2].)

       Third, as noted above, defendant has already raised this exact issue in a previous

habeas corpus petition filed in this court. This court is not required to consider

successive petitions raising the same, or even different, issues which were raised, or not

raised, in a previous petition. (§ 1475; In re Clark, supra, 5 Cal.4th at p. 771.)

       Fourth and finally, defendant’s claim fails on the merits. Defendant pled guilty to

second degree robbery, an offense which is statutorily defined as a serious felony.


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(§ 1192.7, subd. (c)(19) [“As used in this section, ‘serious felony’ means any of the

following:” “robbery”].) There is no such thing as “a non-serious felony of 2nd degree

robbery.” Moreover, the felony complaint containing the charge to which defendant pled

guilty explicitly reflected the offense was “a serious felony within the meaning of . . .

Section 1192.7[, subdivision] (c)(19).”

       Furthermore, the police report which established the factual basis for the plea

reflected sufficient evidence that defendant aided and abetted the woman who stole

property from the Kmart store by assaulting the loss prevention officer who attempted to

stop the woman and by driving the woman away from the scene of the crime. Defendant

asserts in his brief that he was “personally unacquainted” with the woman; however, the

police report reflects defendant informed the investigating officer that he knew the

woman. The victim believed defendant was waiting for the woman. Thus, sufficient

evidence supported the court’s finding that defendant had been convicted of second

degree robbery, a serious felony.

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues. (§§ 1170.126 subd. (b) [“Any person

serving an indeterminate term of life imprisonment . . . upon conviction . . . of a felony

. . . that [is] not defined as serious . . . by . . . subdivision (c) of Section 1192.7, may file a

petition for a recall of sentence . . . .”], 1192.7, subd. (c)(19) [“robbery”], 1170.18, subds.

(a)-(i) [a petition for recall of sentence requires the court to evaluate the petitioner’s

entire criminal conviction history, disciplinary record and record of rehabilitation, and


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any other evidence in order to determine whether resentencing would pose an

unreasonable risk of danger to public safety].)

                                   III. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                            KING
                                                                              J.


We concur:

McKINSTER
                Acting P. J.

CODRINGTON
                          J.




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