In re Daly CA4/1

Filed 7/26/21 In re Daly 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JAMES SCOTT DALY D078107

on (San Diego County Super. Ct. No. CR115942) Habeas Corpus.

ORIGINAL PROCEEDING in habeas corpus. Petition denied. Elizabeth A. Missakian, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters and Phillip J. Lindsay, Assistant Attorneys General, Amanda J. Murray and Rachel A. Campbell, Deputy Attorneys General, for Respondent. In 1990, a jury in federal court (Case No. 90-0701 GT) found Daly guilty of being a convict in possession of a firearm (18 U.S.C. §§ 922(g)(1),

924(e)(1)). The court sentenced him to 500 months in federal prison.1 As set forth in our opinion in People v. Daly (1992) 8 Cal.App.4th 47, a state jury subsequently convicted Daly of kidnapping, robbery, attempted

1 The parties agree that in July 1991, Daly was sentenced to 322 months in prison on unrelated federal convictions (Case No. 90-0718 GT), to run concurrently with the state sentence and Case No. 90-0701 GT.

murder, and assault with a firearm on a police officer based on the same incidents. In 1991, the state court sentenced Daly to 38 years plus four life sentences, to run consecutively to the federal sentence. It awarded Daly credit for time served. Thereafter, appeals in the federal and the state courts resulted in remands to the respective trial courts for reduced prison terms and resentencing. On appeal, this court subsequently concluded the evidence did not support the kidnapping charge but rather attempted kidnapping; accordingly, we reduced the determinate portion of state sentence to 37 years two months. (People v. Daly, supra, 8 Cal.App.4th at p. 60.) On remand, the state court in 1993 ordered that Daly be transferred to California Department of Corrections and Rehabilitation (CDCR) for him to start his state prison sentence, but that specific order was not carried out. In 1996, the federal court ordered Daly’s federal sentence to run concurrently with his state sentence. Daly finished serving that sentence in 2017, and thereafter was transferred to CDCR’s custody on April 28, 2017, to begin his state sentence. In October 2018, Daly filed a petition for writ of habeas corpus, contending that by not running his sentence terms concurrently, respondent CDCR as well as the United States Bureau of Prisons failed to properly exercise their authority. Daly thus sought to set aside the state court’s consecutive sentence. He also sought an order that the state sentence run concurrently with the federal sentence imposed on July 15, 1996, contending that was needed in order to protect his constitutional rights to fundamental fairness, due process and equal protection. He claimed he received ineffective assistance of counsel at his 1996 federal sentencing hearing because his counsel did not move to transfer him to state custody after the federal