In re Arroyo

*521 I.

FACTS AND PROCEDURAL HISTORY

*729 A jury convicted petitioner Tony Jimenez Arroyo of one count of attempted second degree robbery ( Pen. Code, §§ 664, 211, 212.5, subd. (c), & 213, subd. (a)(2)(b) ), and one count of assault with a deadly weapon ( Pen. Code, § 245, subd. (a)(1) ) (all undesignated statutory references are to the Penal Code). It also found true two prior serious felony allegations (§ 667, subd. (a)), two strike allegations (§ 667, subds. (d) & (e)(2)), and four one-year prior prison commitment allegations (§ 667.5, subd. (b)).

The trial court imposed an indeterminate 35-years-to-life sentence: 25 years to life under the Three-Strikes law on the attempted robbery charge, plus a 10-year sentence for the serious felony priors. Sentencing on the assault charge and the four one-year prison commitment allegations was stayed. We affirmed the judgment on direct appeal. ( People v. Tony Jimenez Arroyo (Nov. 3, 1998, G020503) [nonpub. opn.].) The parties agree Arroyo is currently serving his sentence as "an indeterminately sentenced nonviolent offender."

Arroyo filed a habeas corpus petition in the superior court challenging the California Department of…