Filed 2/1/16 In re Julian CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                   DIVISION ONE

                                           STATE OF CALIFORNIA



In re MARK DAVIS JULIAN                                             D069367

on                                                                  (Riverside County
                                                                    Super. Ct. No. SWF026544)
Habeas Corpus.



       ORIGINAL PROCEEDING in habeas corpus. Patrick F. Magers, Judge. Relief
granted.

         Mark Davis Julian, in propria persona, for Petitioner.

      Kamala D. Harris, Attorney General, and Christen Somerville, Deputy Attorney
General, for Respondent.

         Mark Davis Julian seeks a writ of habeas corpus to vacate a prison sentence

imposed in 2010 that included great bodily injury enhancements related to his convictions

of vehicular manslaughter while intoxicated. He contends that the recent decision of the

California Supreme Court in People v. Cook (2015) 60 Cal.4th 922, 935 (Cook), holding

that such enhancements do not apply to murder or manslaughter convictions, applies to
his case even though the judgment is final. The People agree that Julian is entitled to

relief. We grant the requested relief.

                                     BACKGROUND

       Mark Davis Julian was sentenced to prison in 2010 for 12 years after a jury found

him guilty of two counts of vehicular manslaughter while intoxicated and, as to each

count, found true two enhancement allegations that he inflicted great bodily injury on the

other manslaughter victim and on another passenger in the car who survived. On appeal,

this court rejected Julian's argument that Penal Code section 12022.7, subdivision (g),

prohibited imposition of the great bodily injury enhancements and affirmed the judgment

of conviction. (People v. Julian (2011) 198 Cal.App.4th 1524, 1529-1532 (Julian).) The

California Supreme Court denied Julian's petition for review (Nov. 22, 2011, No.

S197132), and the United States Supreme Court denied his petition for writ of certiorari

(Julian v. California (2012) ___ U.S. ___ [132 S.Ct. 2104, 182 L.Ed.2d 872]).

       Last year, the California Supreme Court held that under Penal Code section

12022.7, subdivision (g), "great bodily injury enhancements simply do not apply to

murder or manslaughter," and expressly disapproved this court's contrary holding in

Julian. (Cook, supra, 60 Cal.4th at pp. 926, 935, 939.) Based on Cook, Julian filed a

petition for writ of habeas corpus to vacate the great bodily injury enhancements attached

to his manslaughter convictions. We solicited an informal response from the People, who




                                            2
agreed that this court should vacate the sentence and direct the superior court to

resentence Julian.

                                      DISCUSSION

       The California Supreme Court's recent decision in Cook, supra, 60 Cal.4th 922,

makes clear that the great bodily injury enhancements should not have been imposed as

part of Julian's prison sentence. We are bound by the Supreme Court's decision in Cook.

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The question is

whether Cook applies to Julian's case, which has been final since 2012.

       In arguing that Cook, supra, 60 Cal.4th 922, applies to Julian's case, both parties

rely primarily on People v. Mutch (1971) 4 Cal.3d 389, 392 (Mutch), where the

California Supreme Court considered "whether a defendant whose conviction of the

crime of kidnaping for the purpose of robbery in violation of Penal Code section 209

became final before [its] decision in People v. Daniels (1969) 71 Cal.2d 1119 . . . , [was]

entitled to post-conviction relief upon a showing that his conduct was not prohibited by

the statute as we construed it in Daniels." The Supreme Court noted that "the purpose of

[its] decision in Daniels was not to 'redefine' the crime of kidnaping to commit

robbery . . . but simply to declare what the intent of the Legislature has been in this

regard since the enactment of the 1951 amendment to section 209." (Mutch, at p. 394.)

The Supreme Court went on to hold: "In such circumstances, it is settled that finality for

purposes of appeal is no bar to relief, and that habeas corpus or other appropriate




                                            3
extraordinary remedy will lie to rectify the error: 'Habeas corpus is available in cases

where the court has acted in excess of its jurisdiction. [Citations.] For purposes of this

writ as well as prohibition or certiorari, the term "jurisdiction" is not limited to its

fundamental meaning, and in such proceedings judicial acts may be restrained or

annulled if determined to be in excess of the court's powers as defined by constitutional

provision, statute, or rules developed by courts. [Citations.] In accordance with these

principles a defendant is entitled to habeas corpus if there is no material dispute as to the

facts relating to his conviction and if it appears that the statute under which he was

convicted did not prohibit his conduct. [Citations.]' " (Mutch, at p. 396.)

       Analogizing Julian's case to Mutch, supra, 4 Cal.3d 389, the People contend: "The

purpose of Cook, like that of Daniels, was 'to declare what the intent of the Legislature

has been in this regard since the enactment of the [statute].' [Citation.] Cook recognized

a statutory rule which the Legislature had adopted when it enacted Penal Code section

12022.7, subdivision (g), 'but to which courts had not previously given appropriate

effect.' [Citation.] The fact that Julian's case is final for purposes of appeal does not

serve as a bar to the application of Cook's holding." We agree with this analogy and

conclude that Julian is entitled to the benefit of Cook even though his judgment became

final before Cook was decided.

       Finally, because the People have conceded that Julian is entitled to the relief that

he requests, we may grant the relief without issuing an order to show cause, obtaining full




                                             4
formal briefing, and holding oral argument. (See People v. Romero (1994) 8 Cal.4th 728,

740, fn. 7 [when respondent stipulates to requested relief, "the court in which the habeas

corpus petition is pending may grant relief without issuing a writ of habeas corpus or an

order to show cause"].)

                                     DISPOSITION

      The requested relief is granted. Julian's prison sentence is vacated and the superior

court is directed to resentence him without imposing any great bodily injury

enhancements.


                                                                               AARON, J.

I CONCUR:



                  MCINTYRE, J.




                                            5
Dissenting opinion of Benke, J.

      I dissent from the majority's decision to grant relief summarily. I believe that the

question whether People v. Cook (2015) 60 Cal.4th 922 applies to cases that became final

before it was decided implicates serious concerns deserving of fuller consideration than

the parties have given them. I therefore would issue an order to show cause.




                                                                    BENKE, Acting P. J.
