In re Secada

Opinion

BROWN (Gerald), P. J. Albert F. Secada petitions this court for a writ of habeas corpus to relieve him from what he contends is an erroneous computation of his minimum parole eligibility date.

Secada was convicted of four narcotic offense counts: Counts (1) selling marijuana (Health & Saf. Code, § 11360); (2) selling controlled substances (Health & Saf. Code, § 11352); (3) possessing controlled substances for sale (Health & Saf. Code, § 11351); and (4) possessing marijuana (Health & Saf. Code, § 11357). Count 1 was ordered to run consecutively to count 2. Counts 3 and 4 were ordered to run concurrently with each other but consecutively to count 2.

[41]On appeal Secada successfully contended his sentence to three consecutive terms violated the provisions of Penal Code section 3024, subdivision (d), which reads:1

“The following shall be the minimum term of sentence and imprisonment in certain cases, notwithstanding any other provisions of this code, or any provision of law specifying a lesser sentence:

“(d) For a person convicted at one trial of more than one felony, and upon whom are imposed cumulative or consecutive sentences the aggregate of the minimum terms of which exceed 10 years, 10 years; ..."

This court ordered Secada’s sentence amended to add: “The entire sentence hereby imposed shall carry a minimum term of 10 years pursuant to Penal Code section 3024(d).” In all other respects Secada’s judgment was affirmed (People v. Rufino and Secada (April 29, 1975) 4 Crim. 6676, not certified for publication).

It is thus law of the case (as well as correct law) that Secada’s term is for a minimum of 10 years under Penal Code section 3024, subdivision (d).

Penal Code section 3049 provides: “In all other cases not heretofore provided for, no prisoner sentenced prior to July 1, 1977 may be paroled until he has served the minimum term of imprisonment provided by law for the offense of which he was convicted, .. . provided, that any prisoner, received on or after January 1, 1948, at any state prison or institution under the jurisdiction of the Director of Corrections, whose minimum term of imprisonment is more than one year, may be paroled at any time after the expiration of one-third of the minimum term. In all other cases he may be paroled at any time after he has served the minimum term prescribed by law.”