Filed 3/20/13 P. v. Sanchez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046390

         v.                                                            (Super. Ct. No. 09CF1539)

ERWIN JOHNNY SANCHEZ,                                                  OPINION

     Defendant and Appellant.


In re ERWIN JOHNNY SANCHEZ                                             (Super. Ct. No. 94CF2707)
     on Habeas Corpus.


                   Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed as modified.
                   Original proceedings; petition for a writ of habeas corpus, after judgment of
the Superior Court of Orange County. Petition granted.
              Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
                                 *             *             *


              In 1994, Penal Code1 former section 194 provided in pertinent part: “To
make a killing either murder or manslaughter, it is requisite that the party die within three
years and a day after the strike received or the cause of death administered.” (Stats.
1969, ch. 593, § 1, p. 1225.) The Legislature subsequently amended section 194 and as
of January 1, 1997, the statute provides: “To make the killing either murder or
manslaughter, it is not requisite that the party die within three years and a day after the
stroke received or the cause of death administered. If death occurs beyond the time of
three years and a day, there shall be a rebuttable presumption that the killing was not
criminal. The prosecution shall bear the burden of overcoming this presumption. In the
computation of time, the whole of the day on which the act was done shall be reckoned
the first.” (Stats. 1996, ch. 580, § 1, p. 2653.) We hold this amendment may be applied
retroactively to a defendant whose act occurred prior to the amendment if the three years
and a day term of the earlier version of the statute did not expire prior to the amendment.
(Strong v. Superior Court (2011) 198 Cal.App.4th 1076; People v. Snipe (1972) 25
Cal.App.3d 742.)




              1
                  All statutory references are to the Penal Code.


                                               2
                                                I
                                            FACTS
                A full recitation of the facts is not necessary given the issues raised on
appeal. It suffices to say that in 1996, defendant Erwin Johnny Sanchez pled guilty to
attempting to murder (§§ 187, subd. (a), 664, subd. (a)) Scott Sittler on September 29,
1994, when he shot and paralyzed Sittler. The court sentenced defendant to state prison
for 20 years.
                Sittler died in 2009. In 2010, the district attorney filed an information
against defendant, charging him with Sittler’s murder (§ 187, subd. (a)) and alleging
defendant personally used a firearm in the commission of the offense (§ 12022.5, subd.
(a)) and committed the murder for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)). The trial court denied defendant’s motions to dismiss based on what he
contended was an ex post facto application of section 194. The jury found defendant
guilty of murder and found the enhancement allegations true. The court sentenced
defendant to an aggregate term of 29 years to life, consisting of 25 years to life for the
murder, plus a consecutive four years on the firearm use enhancement and a two-year
concurrent term on the gang enhancement.
                                               II
                                         DISCUSSION
A. The Amendment of Section 194
                At the time defendant shot Sittler in 1994, section 194 provided: “To make
a killing either murder or manslaughter, it is requisite that the party die within three years
and a day after the stroke received or the cause of death administered.” (Former § 194;
Stats. 1969, ch. 593, § 1, p. 1225.) Prior to the expiration of the three year and a day
period provided in section 194, and prior to Sittler’s death, the Legislature amended
section 194. It now provides: “To make the killing either murder or manslaughter, it is
not requisite that the party die within three years and a day after the stroke received or the

                                                3
cause of death administered. If death occurs beyond the time of three years and a day,
there shall be a rebuttable presumption that the killing was not criminal. The prosecution
shall bear the burden of overcoming this presumption. In the computation of time, the
whole of the day on which the act was done shall be reckoned the first.” (§ 194; Stats.
1996, ch. 580, § 1, 2653.) Defendant contends the amendment cannot be applied
retroactively to his conduct in 1994 without violating ex post facto.
               The ex post facto clause in article I, section 10 of the United States
Constitution prohibits states from enacting an “ex post facto law.” Our state ex post facto
clause (Cal. Const., art. I, § 9) is coextensive with the federal provision. (Tapia v.
Superior Court (1991) 53 Cal.3d 282, 295-297.) “A law violates the ex post facto clause
only if it is retroactive — that is, if it applies to events occurring before its enactment —
and if its application disadvantages the offender. [Citation.] A retroactive law does not
violate the ex post facto clause if it ‘does not alter “substantial personal rights,” but
merely changes “modes of procedure which do not affect matters of substance.”’
[Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 853.)
               The fountainhead of ex post facto jurisprudence after our country’s
formation is Calder v. Bull (1978) 3 U.S. 386. Justice Chase set forth four categories of
laws prohibited by the ex post facto clause. “1st. Every law that makes an action done
before the passing of the law, and which was innocent when done, criminal; and punishes
such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when
committed. 3d. Every law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed. 4th. Every law that
alters the legal rules of evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in order to convict the offender.”
(Id. at p. 390.)
               The courts of this state have, on prior occasions, dealt with ex post facto
claims in connection with section 194. In People v. Snipe, supra, 25 Cal.App.3d 742,

                                               4
Snipe brutally beat her child in February 1969, causing a leakage in the child’s bowel. At
the time, section 194 provided a death must occur within one year and a day of “‘the
stroke received or the cause of death administered’” for the death to be considered the
result of murder or manslaughter. (Id. at p. 745.) Snipe’s child died 21 months after the
beating. However, within a year of the beating and prior to the child dying, the
Legislature amended section 194, replacing the year and a day requirement with a three
years and a day requirement. (Ibid.) Snipe contended the amendment operated in
violation of the ex post facto clause because at the time of her act, the statute required the
death to occur within a year and a day of the criminal act, the child did not die within that
time frame, and Snipe would not have been liable for a murder prosecution but for the
amendment to section 194 made after her criminal act. (Ibid.)
              In resolving the ex post facto issue, the court acknowledged “[a]n ex post
facto law is a retroactive law applying to offenses committed before its enactment which
by its necessary operation and in its relation to the offense, or its consequences, changes
the situation of the defendant to his detriment. [Citations.]” (People v. Snipe, supra, 25
Cal.App.3d at p. 747.) The court then stated, “Constitutional limitations, therefore, are
transgressed by retroactive procedural changes if they operate to deny the accused a
vested defense or if they affect him in a harsh or arbitrary manner. [Citation.]” (Ibid.,
italics added.) The court then went on to hold the amendment in that case did not violate
ex post facto principles because at the time section 194 was amended — while the year
and a day limit was still in effect — the immunity provided with the expiration of the
time limit previously provided by the section had not yet vested prior to the amendment.
(People v. Snipe, supra, 25 Cal.App.3d at pp. 747-748.) “The change in the time of death
requirement, therefore, [did] not deprive [Snipe] of a vested defense.” (Id. at p. 747.)
              The court went on to determine whether the change affected the quality or
quantum of evidence of the prosecution’s case or the burden to establish guilt. (People v.
Snipe, supra, 25 Cal.App.3d at p. 747.) The court concluded the amendment did not

                                              5
affect “the quality or quantum of the People’s evidence or the burden required to
establish [Snipe’s] guilt.” (Ibid.) It reached this conclusion because it determined the
amendment only modified “an archaic common law impediment and was made,
obviously, by the Legislature in recognition of the well known fact that modern medicine
not only has made it possible to prolong the life of an intended murder victim but also has
made it feasible to establish the cause of death even if the victim dies several years after
the injury.” (Ibid.) The prosecution was still required to prove beyond a reasonable
doubt Snipe’s criminal conduct proximately caused the child’s death.
              The Snipe court relied on People v. Ward (1958) 50 Cal.2d 702, 709-710,
as support for its holding. (People v. Snipe, supra, 25 Cal.App.3d at pp. 747-748.) In
Ward, our Supreme Court cited a number of United States Supreme Court decisions that
wrestled with ex post facto claims. Ward’s challenge was based on a change made to the
rules of evidence after he committed his crime. (People v. Ward, supra, 50 Cal.2d at p.
709, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 640-641.) The
Ward court found the most applicable case was Thompson v. Missouri (1898) 171 U.S.
380. There, the defendant was convicted of murder based on a handwriting comparison
of letters defendant wrote to his wife and a threatening letter sent to the victim. The high
court reversed the defendant’s conviction finding defendant’s letters to his wife were not
admissible. Prior to the defendant’s second trial, the Legislature amended a statute,
permitting the letters to be introduced into evidence. Thompson was again convicted.
On appeal, he contended the legislative enactment permitting the letters to his wife to be
admitted into evidence violated ex post facto principles. (People v. Ward, supra, 50
Cal.2d at p. 709.) The high court rejected Thompson’s claim: “‘Applying the principles
announced in former cases . . . we adjudge that the statute of Missouri relating to the
comparison of writings is not ex post facto when applied to prosecutions for crimes
committed prior to its passage. If persons excluded, upon grounds of public policy, at the
time of the commission of an offense, from testifying as witnesses for or against the

                                              6
accused, may, in virtue of a statute, become competent to testify [citation], we cannot
perceive any ground upon which to hold a statute to be ex post facto which does nothing
more than admit evidence of a particular kind in a criminal case upon an issue of fact
which was not admissible under the rules of evidence as enforced by judicial decisions at
the time the offense was committed.’” (Id. at pp. 709-710, quoting Thompson v.
Missouri, supra, 171 U.S. at pp. 386-387.)
              Thirty-nine years after the Snipe decision, another panel of this court
decided Strong v. Superior Court, supra, 198 Cal.App.4th 1076. Strong shot the victim
on November 6, 1980, paralyzing the victim from the waist down. (Id. at p. 1080.) At
the time of the shooting, former section 194 required a death to occur within three years
and a day of the criminal act. (Id. at p. 1079.) The victim did not die until February
2010, 29 years later. The coroner found the victim’s death to have been a homicide. The
cause of death was “delayed complications” from the shooting. (Id. at p. 1080.)
              The amendment to section 194 at issue in Strong is the same amendment
with which we are faced. Unlike the present case, where section 194 was amended prior
to the expiration of the three years and a day time term previously provided, the
amendment was made approximately 17 years after the shooting in Strong. In other
words, the three years and a day period provided in the version of section 194 in effect at
the time of the shooting in Strong had expired prior to the amendment in 1997. Thus,
unlike the defendant in Snipe, Strong had a vested defense to any charge of murder prior
to the 1997 amendment of section 194. (See People v. Snipe, supra, 25 Cal.App.3d at p.
747.)
              The effect then of the 1997 amendment to section 194, authorizing a
murder prosecution for a death that occurred more than three years and a day after
Strong’s criminal act, was to retroactively deny Strong a vested, complete defense to a
charge of murder. Under the version of section 194 in effect at the time Strong shot the



                                             7
victim, Strong was free in November 1983 from the possibility of being prosecuted for
murder based on the shooting of his victim more than three years and a day earlier.
              The Stong court analogized the facts in Strong’s case to those presented in
Stogner v. California (2003) 539 U.S. 607. (Strong v. Superior Court, supra, 198
Cal.App.4th at p. 1079.) In Stogner, our legislature amended a statute of limitation for
certain sex offenses. The amendment was made with the express intention that the statute
would revive prosecutions already barred by the previous applicable statute of limitation.
(Stogner v. California, supra, 539 U.S. at p. 609.) In Stogner’s case, criminal liability for
his acts expired 22 years before his prosecution under the amendment. (Id. at p. 610.)
The high court concluded the enactment violated the ex post facto clause when the
amendment was applied to prosecutions that were barred prior to the amendment. (Ibid.)
The court quoted Learned Hand who had written that extending an expired limitation
period after assuring “‘a man that he has become safe from its pursuit . . . seems to most
of us unfair and dishonest.’” (Id. at p. 611, quoting Falter v. United States (1928) 23
F.2d 420, 426.)
              The Stogner court found amendment of California’s statute of limitation
after the previous term had expired — prohibiting prosecution — qualified as an
improper ex post facto application under the second category of abusive ex post facto
laws enacted by England prior to our independence and as set forth by Justice Chase in
Calder v. Bull, supra, 3 U.S. 386, 389: “‘[A]t other times [Parliament] inflicted
punishments where the party was not, by law, liable to any punishment.’” (Stogner v.
California, supra, 539 U.S. at p. 612.) “After (but not before) the original statute of
limitations had expired, a party such as Stogner was not ‘liable to any punishment.’
California’s new statute therefore ‘aggravated’ Stogner’s alleged crime, or made it
‘greater than it was, when committed,’ in the sense that, and to the extent that, it ‘inflicted
punishment’ for past criminal conduct that (when the new law was enacted) did not
trigger any such liability. [Citation.]” (Id. at p. 613.)

                                               8
              The Strong court reached the same conclusion. Prior to the amendment of
former section 194, a death had to occur within three years and a day of the criminal act
to qualify as murder. Under that version, Strong’s potential criminal liability for the
murder of the alleged victim expired in November 1983 and he was no longer subject to
prosecution approximately 15 years before former section 194 was amended, deleting the
three years and a day requirement and replacing the bar with a rebuttable presumption.
(Strong v. Superior Court, supra, 198 Cal.App.4th at p. 1080.) The Strong court
recognized that while section 194 is not designated a statute of limitation, labels are not
controlling, and the effect of section 194 “unmistakenly established a time bar for
homicide charges.” (Id. at p. 1082.) The court concluded the 1997 amendment could not
be applied retroactively to Strong: “Having established a time bar, the Legislature was
entitled to change it with the proviso that ex post facto principles would preclude
prosecutions for which the limitations period had expired.” (Ibid.)
              Defendant does not find himself in the same boat as Stogner and Strong.
He was never free from the possibility of being tried for murder based on the time limit
previously set forth in former section 194. Although the version of section 194 in effect
at the time he shot Sittler required a death within three years and a day before the death
could be considered to have resulted from murder or manslaughter (Stats. 1969, ch. 593,
§ 1, p. 1225), the Legislature amended section 194 prior to the expiration of three years
and a day from September 29, 1994, the day defendant shot Sittler. (Stats. 1996, 580, §
1, p. 2653.) Therefore, the amendment of section 194 does not qualify as an ex post facto
law under Stogner, Snipe, or Strong.
              This does not end our inquiry. Defendant also contends the amendment
violated the fourth prohibition set forth in Calder v. Bull, supra, 3 U.S. 386: “Every law
that alters the legal rules of evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in order to convict the
offender.” (Id. at p. 390.)

                                               9
              The amendment to section 194 does not qualify as an ex post facto
application under Calder’s fourth prohibition. The amendment did not alter to rules of
evidence to permit less or different testimony that required at the time the criminal act
was committed. In order to obtain a conviction for murder at the time defendant shot
Sittler, the prosecution needed to prove the defendant’s act was the proximate cause of
the victim’s death. (People v. Roberts (1992) 2 Cal.4th 271, 294.) The amendment does
not change that rule. The prosecutor is still required to prove beyond a reasonable doubt
the criminal act proximately caused the death. In fact, the amendment creates a
rebuttable presumption the killing was not criminal when the death occurs more than
three years and a day after the criminal act. “If death occurs beyond the time of three
years and a day, there shall be a rebuttable presumption that the killing was not criminal.
The prosecution shall bear the burden of overcoming this presumption.” (§ 194.)
              The real effect of the amendment is that it eliminated the requirement of a
death within three years and a day of the criminal act. But as we have already seen, when
former section 194 was amended to remove the one year and a day requirement,
replacing it with a three years and a day requirement, the amendment did not violate the
ex post facto clause when the previously provided for term had not expired prior to the
amendment. In other words, the amendment did not deny defendant a vested defense.
(People v. Snipe, supra, 25 Cal.App.3d at p. 747.)
              As the Snipe court observed, “[T]he distinction between a procedural
change which transgresses the Constitution if given a retroactive application and one
which does not is a matter of degree, and each case must be decided on its own facts.”
(People v. Snipe, supra, 25 Cal.App.3d at p. 747.) Given the fact the Legislature can
extend the period of time for a death to occur and still have the death support a murder or
manslaughter conviction without violating the ex post facto clause — so long as the prior
time period had not expired prior to the amendment (ibid.) — it would seem the
Legislature may also completely remove the time restriction, leaving it to the prosecution

                                             10
to prove the death was proximately caused by the criminal act. If such an act would not
operate in an ex post facto fashion, we do not think what the Legislature did here violated
the Constitution. The Legislature removed the three year and a day restriction, but gave
defendant substantial protection by replacing the restriction with a rebuttable presumption
that the death was not the result of the defendant’s criminal act when the death occurred
more than three years and a day later. We find the degree of the change made by section
194 does not violate ex post facto concerns when the amendment is applied in those
situations where the term previously provided in former section 194 did not expire prior
to the amendment, i.e., the defendant’s right to immunity under the previous statute had
not yet vested. Because the three year and a day term provided in former section 194 at
the time defendant shot Sittler did not expire prior to the 1997 amendment to that section,
the retroactive application of the amendment to defendant does not violate the ex post
facto clause of either Constitution.2


B. Enhancements
              Defendant argues the trial court violated section 1170.1, subdivision (f) and
People v. Rodriguez (2009) 47 Cal.4th 501, when it imposed a four-year enhancement for
defendant’s personal use of a firearm (§ 12022.5, subd. (a)) in the commission of the
murder and a concurrent two-year term on the gang enhancement (§ 186.22, subd.
(b)(1)). He contends both enhancements are based on his use of a firearm and therefore
he may only be sentenced on one of the two enhancements. The argument lacks merit.




              2
                 Because we find applying section 194 to this case in a retroactive manner
does not violate the Constitution, we need not address defendant’s contention that the
trial court erred in instructing the jury in terms of the version of section 194 in effect at
the time of trial and not in terms of the previous version.


                                             11
              Section 1170.1, subdivision (f)3 prohibits a defendant from being sentenced
on two or more enhancements “for being armed with or using a dangerous or deadly
weapon or a firearm in the commission of a single offense” and provides the defendant
may only be sentenced on the greatest of the enhancements. The main flaw in
defendant’s argument is that while he did receive a sentence enhancement for personally
using a firearm in commission of the murder (§ 12022.5, subd. (a)), the concurrent term
imposed on the gang enhancement was not based on defendant having been armed with
or having used a deadly weapon or firearm. At the time of defendant’s offense, section
186.22, subdivision (b)(1) provided a one, two, or three year enhancement for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members.” (Stats. 1993, ch. 601, § 1, p. 3160.)
The gang statute under which defendant was sentenced did not require the defendant to
have been armed with a deadly weapon or to have used a firearm. Thus, section 1170.1,
subdivision (f) does not preclude imposition of both enhancements.
              Defendant’s reliance on People v. Rodriguez, supra, 47 Cal.4th 501 is
misplaced. In Rodriguez, the defendant was convicted of three counts of assault with a
firearm (§ 245, subd. (a)(2)). The court imposed consecutive terms under section
12022.5, subdivision (a) for defendant’s personal use of a firearm and under the gang
enhancement. The Supreme Court agreed section 1170.1, subdivision (f) prohibited
imposition of both terms. (Id. at p. 504.) However, Rodriguez was sentenced under a
different subdivision of section 186.22 than defendant. Rodriguez was sentenced under a


              3
                “When two or more enhancements may be imposed for being armed with
or using a dangerous or deadly weapon or a firearm in the commission of a single
offense, only the greatest of those enhancements shall be imposed for that offense. This
subdivision shall not limit the imposition of any other enhancements applicable to that
offense, including an enhancement for the infliction of great bodily injury.” (§ 1170.1,
subd. (f).)

                                             12
subdivision that called for a 10-year enhancement when the underlying offense is a
violent felony as defined in section 667.5, subdivision (c). (§ 186.22, subd. (b)(1)(C).)
Rodriguez’s conviction for assault with a firearm qualified for the 10-year gang
enhancement because assault with a firearm is a violent felony. It qualifies as a violent
felony because Rodriguez used a firearm in committing the offense. Thus, in that case
imposition of enhancements for personal use of a firearm and the 10-year gang
enhancement, which only applied because Rodriguez was armed with or used a weapon,
violated section 1170.1, subdivision (f). (People v. Rodriguez, supra, 47 Cal.4th at p.
505.)
              That is not the situation here. The two-year term imposed under section
186.22, subdivision (b)(1) had nothing to with whether defendant was armed with a
deadly weapon or used a firearm. Therefore, section 1170.1, subdivision (f) was neither
implicated or violated by imposition of enhancements under section 12022.5, subdivision
(b) and section 186.22, subdivision (b)(1). Accordingly, we find the trial court did not err
in imposing both enhancements.


C. Fees Imposed
              At sentencing, the court imposed three $40 court security fees, stating,
“Under . . . section 1465.8, the court imposes a court security fee in the amount of $40
per convicted count. There were three counts, even though I stayed sentence on one, so
therefore three times 40 is 120.” The Attorney General concedes the error.
              Section 1465.8 provides for a $40 assessment for “every conviction for a
criminal offense.” (§ 1465.8, subd. (a)(1).) Contrary to the trial court’s statement,
defendant was not convicted of three criminal offenses. He was convicted of only one,
murder. The conviction applies to convictions, but not to enhancements. (People v. Roa
(2009) 171 Cal.App.4th 1175, 1176-1177 [jury convicted defendant of two felonies and
found he personally used a firearm], 1181 [because defendant was convicted of two

                                            13
felonies the court should have imposed two section 1465.8 fees].) We therefore will
order the abstract of judgment corrected to reflect the imposition of one $40 assessment
under section 1465.8.
              Similarly, the court imposed three $30 Government Code section 70373,
subdivision (a)(1) fees. Like section 1465.8, Government Code section 70373 requires
imposition of a fee “on every conviction for a criminal offense.” (§ 1465.8, subd. (a)(1);
Gov. Code, § 70373, subd. (a)(1).) The Attorney General concedes this error as well and
we order the abstract of judgment corrected to reflect the imposition of one $30 fee under
Government Code section 70373, subdivision (c)(1).


D. The Attempted Murder Conviction
              Defendant was convicted in 1996, Orange County Superior Court case No.
94CF2707, of the attempted murder of Sittler and in 2011 he was convicted in the present
case of Sittler’s first degree murder, based on the same act. Attempted murder is a lesser
included offense of first degree murder. (§ 663.) Defendant asserts the trial court erred
in failing to strike or dismiss the conviction for attempted murder, or in failing to stay his
prison sentence for the attempted murder once he stood convicted of the completed crime
of murder. The Attorney General argues the judgment should be modified to reflect the
sentence for the attempted murder is stayed pending successful completion of the
sentence imposed on the murder conviction. This does not, however, remedy the
existence of the impermissible dual convictions.
              “When a defendant is found guilty of both a greater and a necessarily lesser
included offense arising out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is controlling, and the
conviction of the lesser offense must be reversed. [Citations.]” (People v. Sanders
(2012) 55 Cal.4th 731, 736, italics added.) Defendant has been convicted of the
attempted murder of Sittler and of Sittler’s murder. The same act underlies both

                                              14
convictions. Defendant has thus been convicted of the greater and lesser included
offense. He is entitled, therefore, to have his attempted murder conviction vacated.
              At oral argument, the parties addressed whether this court has jurisdiction
to remedy this situation. The Attorney General conceded a defendant cannot be
convicted of attempted murder and the murder of the same victim based on the same act.
She argued there is no habeas corpus jurisdiction in this matter because defendant
received full credit for the time he spent in custody on the attempted murder conviction
against his sentence on the murder conviction, and he is no longer in custody on the
attempted murder conviction. However, she acknowledged the remaining time left on the
sentence for the attempted murder was never vacated.
              In order for an individual to prosecute a petition for a writ of habeas corpus,
the individual must be in custody or otherwise restrained of his liberty. (In re Stier
(2007) 152 Cal.App.4th 63, 82; § 1473, subd. (a).) Defendant is imprisoned on the
murder conviction and, as the sentence on the attempted murder charge has not been
vacated, we conclude he is constructively in custody on case No. 94CF2707. (People v.
Villa (2009) 45 Cal.4th 1063, 1069 [“‘the decisional law of recent years has expanded the
writ’s application to persons who are determined to be in constructive custody’”].)
Accordingly, we treat defendant’s opening brief as a petition for a writ of habeas corpus
to the extent it seeks vacation of his conviction for attempted murder in case No.
94CF2707 (People v. Stanworth (1974) 11 Cal.3d 588, 596, fn. 7) and order the superior
court to vacate defendant’s conviction for attempted murder in that case.
                                             III
                                      DISPOSITION
              The clerk of the superior court is directed to correct the abstract of
judgment to reflect the imposition of one $40 assessment under section 1465.8,
subdivision (a)(1), one $30 fee pursuant to Government Code section 70373, subdivision



                                             15
(a)(1), and to send a certified copy of the abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects the judgment is affirmed.
                We grant defendant’s petition for a writ of habeas corpus. The superior
court is ordered to vacate defendant’s conviction for attempted murder in Orange County
Superior Court case No. 94CF2707, as he now stands convicted of Sittler’s murder in the
present case.



                                                  MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




                                             16
