California Court of Appeal Feb 1, 2016 No. D069367Unpublished
Filed 2/1/16 In re Julian CA4/1
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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
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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
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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
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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.
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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.
AI Brief
AI-generated · verify before citing
Holding. The court held that the petitioner is entitled to habeas corpus relief to vacate great bodily injury enhancements imposed on his manslaughter convictions, as the decision in People v. Cook (2015) 60 Cal.4th 922 applies retroactively to final judgments.
Issues
Whether the holding in People v. Cook (2015) 60 Cal.4th 922 applies to a judgment that became final before the decision was issued.
Whether a defendant is entitled to habeas corpus relief when the statute under which they were convicted did not prohibit their conduct.
Disposition. Relief granted; sentence vacated and remanded for resentencing.
Quotations verified verbatim against the opinion
“great bodily injury enhancements simply do not apply to murder or manslaughter”
“Julian's prison sentence is vacated and the superior court is directed to resentence him without imposing any great bodily injury enhancements.”