Filed 10/26/20 P. v. Zia CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH ZIA,

Defendant and Appellant.

B302270

(Los Angeles County

Super. Ct. No. MA054837)

APPEAL from an order of the Superior Court of Los 

Angeles County. Daviann L. Mitchell, Judge. Reversed and 

remanded with directions.

Christian C. Buckley, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill and Kathy S. 

Pomerantz, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________
2

Joseph Zia appeals a resentencing order pursuant to an 

order to show cause (OSC) returnable in superior court.

PROCEDURAL BACKGROUND

On April 29, 2014, appellant entered a negotiated no 

contest plea to one count of attempted murder (count 1, Pen. 

Code,1 §§ 664/187, subd. (a)) and one count of assault with a 

firearm (count 6, § 245, subd. (a)(2)) in exchange for the dismissal 

of four counts of attempted murder and the premeditation and 

deliberation allegation as to count 1. Appellant admitted a prior 

strike conviction (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), a 

firearm use allegation (§ 12022.53, subd. (b)) in connection with 

count 1, and a great bodily injury (GBI) allegation (§ 12022.7, 

subd. (a)) in connection with count 6.

In accordance with the plea agreement, Judge Lisa Chung 

sentenced appellant to a term of 33 years in state prison. The 

sentence consisted of the high term of nine years, doubled to 18 

years, plus a consecutive 10-year term for the firearm use 

enhancement on count 1; and one year (one-third the midterm), 

doubled to two years, plus a consecutive three-year term for the 

GBI enhancement on count 6. Appellant did not appeal the 

judgment.

Sometime in the fall of 2016, appellant submitted a letter 

to the trial court in which he alleged the two enhancements had 

been “erroneously attached to the wrong acts and crimes.” He did 

not, however, file a petition for writ of habeas corpus challenging 

his sentence. Nevertheless, on November 7, 2016, the trial court 

filed a written order in which Judge Chung found the sentence on 

count 6 to be unauthorized because the term for the GBI

1 Undesignated statutory references are to the Penal Code.
3

enhancement should have been one-third the midterm⎯one year, 

rather than three years as imposed at sentencing.2 To correct the 

sentencing error, Judge Chung unilaterally removed the 

enhancement from count 6 and applied it to count 1, leaving the 

total sentence unchanged. The court explained that by retaining 

the original aggregate sentence, both parties would receive the 

“benefit of the bargain of a total sentence of 33 years and that an 

overall legal authorized sentence is imposed.” On November 17, 

2016, an amended abstract of judgment was filed, reflecting a 31-

year sentence on count 1 (nine years doubled to 18 years, plus 10 

years for the gun use enhancement and three years for the GBI

enhancement), and a two-year sentence on count 6 (one year (onethird the midterm) doubled to two years), for an aggregate term 

of 33 years in state prison.

Thereafter, appellant submitted another letter to Judge 

Chung, requesting that one of the imposed enhancements be 

removed, and on August 14, 2017, the court responded with an 

order declining to strike either of the enhancements.

Appellant filed a habeas petition in the superior court in 

which he alleged that the trial court had imposed an illegal and 

unauthorized sentence when it removed the section 12022.7, 

subdivision (a) GBI enhancement from count 6 and attached it to 

count 1. On March 26, 2018, Judge Chung denied the petition,

finding that appellant had failed to state a prima facie case of 

2 When a one-third subordinate sentence is imposed on the 

substantive offense to which an enhancement is attached, the 

term on the enhancement must also be a one-third term. (People 

v. Moody (2002) 96 Cal.App.4th 987, 992–993 [an enhancement 

attached to a consecutive subordinate term must be reduced to 

one-third of the term imposed for that specific enhancement].)
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relief. The court noted it had “amended the judgment to reflect 

the great bodily injury enhancement as to the victim on Count 1” 

in order to ensure that “both sides received the benefit of the 

bargained for sentence of 33 years.”

Appellant then filed a petition for writ of habeas corpus in 

this court, asserting the same claim he had raised in his superior 

court petition. Appellant also claimed he had been led to believe 

that the victim in count 6 had been shot, but he later learned this 

was not true. Appellant asserted that this false information had 

prompted him to accept the plea deal. Respondent filed a 

preliminary response, and appellant filed a traverse.

On October 4, 2018, this court issued an OSC in which we 

found appellant had made a prima facie showing of entitlement 

to relief solely on the claim that the superior court’s order 

amending the judgment, the amended abstract of judgment, and 

orders denying relief from the amended judgment were improper. 

Specifically, we noted that the trial court had “unilaterally 

amended the judgment, which was the result of a plea 

agreement, without consent of the parties.” The OSC was 

returnable in the superior court as to why the amendment to the 

judgment made by Judge Chung and the amended abstract of 

judgment should not be vacated. In all other respects, the 

petition was denied, and the court “express[ed] no opinion 

regarding whether petitioner may seek to withdraw his plea, as 

this issue has not been raised in the petition and appears not to 

have been raised in the superior court, or to pursue other relief.” 

(In re Zia (Oct. 4, 2018, B289324).)

At the resentencing hearing before Judge Daviann Mitchell 

on October 10, 2019, pursuant to the OSC, appellant’s counsel 

orally moved to withdraw the plea on the basis of ineffective 
5

assistance of counsel, and requested appointment of conflict 

counsel. The superior court denied the motion without prejudice 

and imposed the identical sentence Judge Chung had imposed in 

the November 7, 2016 order. This appeal followed.

DISCUSSION

I. The Superior Court’s Postjudgment Sentencing 

Order Made After this Court’s OSC Is 

Appealable

Characterizing the superior court’s postjudgment 

sentencing order made after the OSC as a denial of the habeas 

corpus petition, respondent contends that the instant appeal 

must be dismissed because the denial of appellant’s habeas 

petition is not appealable or otherwise reviewable by this court.

Respondent is correct that in a noncapital criminal case the 

defendant has no right of appeal from an order granting or 

denying his or her petition for writ of habeas corpus. (Jackson v. 

Superior Court (2010) 189 Cal.App.4th 1051, 1064 [“No appeal 

lies from an order denying a petition for writ of habeas corpus”]; 

People v. Gallardo (2000) 77 Cal.App.4th 971, 983 (Gallardo)

[“Although the People may appeal the granting of a writ of 

habeas corpus, the detainee has no right to appeal its denial and 

must instead file a new habeas corpus petition in the reviewing 

court”], 986 [same]; accord, In re Clark (1993) 5 Cal.4th 750, 767, 

fn. 7 [“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 Application

of Zany (1913) 164 Cal. 724, 726.) Because Zia purports to appeal 

from a nonappealable order, respondent asserts that this court is 
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without jurisdiction to consider the appeal and must order 

dismissal.

However, as our Supreme Court in People v. Romero (1994)

8 Cal.4th 728 explained, “issuance of a writ of habeas corpus or 

an order to show cause is an intermediate but nonetheless vital 

step in the process of determining whether the court should grant

the affirmative relief that the petitioner has requested. The 

function of the writ or order is to ‘institute a proceeding in which 

issues of fact are to be framed and decided.’ [Citation.] The

issuance of either the writ of habeas corpus or the order to show 

cause creates a ‘cause,’ thereby triggering the state constitutional 

requirement that the cause be resolved ‘in writing with reasons 

stated.’ ” (Id. at p. 740.)

In issuing the OSC returnable in the superior court in this 

case, this court determined the sentence was unauthorized and

effectively granted the writ. No evidentiary hearing or findings 

of fact were required: All that remained for the superior court 

was to resentence appellant by vacating Judge Chung’s order 

amending the judgment and to restore the original judgment, 

thereby resolving the cause. Based on the record in this case, it 

thus appears that the superior court did not deny appellant’s 

habeas petition, but entered a postjudgment order following a 

resentencing hearing. That proceeding and the resulting order 

are subject to appellate review.

3

3 Even if we were to accept respondent’s characterization of 

the superior court’s order as a nonappealable denial of appellant’s 

habeas petition, dismissal would not be appropriate. Rather, in 

the interests of judicial economy, the unusual procedural posture 

of this case would be better addressed by treating the appeal as a 
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II. The Matter Is Remanded to the Superior Court 

for Further Proceedings Consistent with this 

Court’s OSC

A. On remand the superior court shall vacate Judge 

Chung’s order amending the judgment and reinstate the 

original judgment based upon the parties’ negotiated plea

“[A] negotiated plea agreement is in the nature of a 

contract. Thus, when the trial court accepts it, the agreement is 

binding on the parties and the court. (§ 1192.5; Segura, supra, 44 

Cal.4th at pp. 930–931.) Thereafter, material terms of the 

agreement cannot be modified without the parties’ consent. 

(Segura, supra, at p. 935.)” (People v. Martin (2010) 51 Cal.4th 

75, 80.)

Here, appellant pleaded guilty in exchange for a specified 

sentence. In entering the negotiated plea agreement and 

agreeing to the 33-year sentence, appellant admitted a firearm 

use allegation (§ 12022.53, subd. (b)) in connection with count 1, 

and a GBI allegation (§ 12022.7, subd. (a)) as to count 6. By 

unilaterally removing the GBI allegation from count 6 and 

attaching it to count 1 without the consent of the parties, Judge 

Chung modified the material terms of the plea agreement and 

thereby improperly amended the judgment. (See Segura, supra, 

44 Cal.4th at pp. 931–932 [“in the context of a negotiated plea the 

petition for writ of habeas corpus or mandate whereby we would 

nevertheless reach the merits of the issues presented by the 

appeal. (People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4

(Segura) [treating appeal as petition for writ of habeas corpus in 

the interests of judicial economy]; Gallardo, supra, 77 

Cal.App.4th at p. 986; see People v. Banks (1959) 53 Cal.2d 370, 

379, fn. 5.)
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trial court may approve or reject the parties’ agreement, but the 

court may not attempt to secure such a plea by stepping into the 

role of the prosecutor, nor may the court effectively withdraw its 

approval by later modifying the terms of the agreement it had 

approved”]; People v. Godfrey (1978) 81 Cal.App.3d 896, 903

[“While the court . . . need not approve a bargain reached 

between the prosecution and the defendant, it cannot change that 

bargain or agreement without the consent of both parties”].) 

Likewise, Judge Mitchell’s imposition of sentence pursuant to the 

amended judgment that had prompted the OSC also constituted 

an alteration of the material terms of the plea agreement without 

the consent of the defense.

Therefore, on remand in accordance with the OSC, the 

superior court shall vacate the postjudgment orders amending 

the original judgment, vacate the November 17, 2016 amended 

abstract of judgment, and reinstate the original judgment based 

upon the parties’ negotiated plea.

B. Appellant has not properly raised the issue of 

withdrawal of his plea, and he may not raise it on remand 

in these proceedings

Over the course of these proceedings, appellant has 

indicated a desire to withdraw his plea on the ground that he 

received ineffective assistance of counsel during the plea 

negotiations. But as this court noted in the OSC, appellant has 

never properly raised the issue before any court. He may not do 

so on remand in this proceeding either.

It is settled that “[a] habeas corpus proceeding is ‘limited to 

the claims which the court initially determined stated a prima 

facie case for relief.’ [Citations.] ‘ “This process of defining the 

issues is important because issues not raised in the pleadings 
9

need not be addressed. [Citation.]” [Citation.] Under this 

process, the issues to be addressed may not extend beyond the 

claims alleged in the habeas corpus petition.’ ” (In re Arroyo

(2019) 37 Cal.App.5th 727, 732; In re Lawley (2008) 42 Cal.4th 

1231, 1248 [the claims in an order to show cause are limited to 

those alleged in the petition]; see In re Clark, supra, 5 Cal.4th at 

p. 781, fn. 16.)

As set forth above, the sole matter before the superior court 

on remand in this case is the unauthorized sentence that resulted 

from Judge Chung’s unilateral amendment to the judgment. 

Should appellant wish to withdraw his plea based on ineffective 

assistance of counsel or pursue any other relief, he is free to 

pursue any claims in an appropriate writ petition, but he may not 

do so on remand in this proceeding. (See People v. Snow (2003) 

30 Cal.4th 43, 111 [“normally a claim of ineffective assistance of 

counsel is appropriately raised in a petition for writ of habeas 

corpus”].)

III. The Superior Court Did Not Err in Refusing to 

Consider Withdrawal of the Plea or 

Appointment of Conflict Counsel in 

Proceedings Pursuant to this Court’s OSC

Appellant contends that the superior court erred in failing 

to appoint conflict counsel at resentencing, and on remand, new 

counsel should be appointed. We find no error in the superior 

court’s refusal to consider appellant’s motion to withdraw his plea

or appoint conflict counsel.

Respondent correctly observes that the request for conflict 

counsel was based solely on a conflict arising from appellant’s

motion to withdraw his plea for ineffective assistance of counsel.

But neither the request to withdraw the plea nor any ineffective 
10

assistance claim was raised in appellant’s habeas petition, and in 

specifically limiting the OSC to the sentencing issue, this court 

“express[ed] no opinion regarding whether petitioner may seek to 

withdraw his plea” or pursue other relief. (In re Zia, supra, 

B289324.) Thus, the superior court was correct in ruling that it 

had no jurisdiction to entertain a motion to withdraw the plea, 

and, because the ineffective assistance of counsel claim was only 

relevant to a matter not before the court, the court was under no 

duty to appoint conflict counsel.
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DISPOSITION

The October 10, 2019 resentencing order is reversed, and 

the matter is remanded to the superior court for further 

proceedings in accordance with this court’s October 4, 2018 order 

to show cause. On remand the superior court shall vacate the 

postjudgment orders amending the original judgment, vacate the 

November 17, 2016 amended abstract of judgment, and reinstate 

the original judgment based upon the parties’ negotiated plea.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.