P. v. Quinton CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCS172950
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Patricia D. Benke
Analysis
The trial court denied Quinton's petition to recall his sentence under Proposition 36, determining he was ineligible because his 2003 conviction for criminal threats was a serious felony. The Court of Appeal affirmed the order, finding no arguable issues on appeal after a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall sentence under Penal Code section 1170.126“The trial court denied Quinton's petition finding that his 2003 conviction for criminal threats was a serious felony and thus Quinton was not eligible for sentence modification.” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by the appellate court when appointed counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any possible, though not arguable, issues and to request leave to withdraw.
The appellate opinion: sound — The opinion is procedurally sound in its application of Wende and Anders standards for appointed counsel review. It correctly identifies that the defendant is ineligible for Proposition 36 relief because his third-strike offense was a serious felony, which is a statutory prerequisite for eligibility.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Eric Quinton's Penal Code section 1170.126 petition to recall his 25-years-to-life third-strike sentence, finding his 2003 criminal-threats conviction (§ 422) is a serious felony that makes him ineligible for Proposition 36 resentencing. On appeal, appointed counsel filed a Wende/Anders brief, the defendant filed nothing, and the Court of Appeal independently reviewed the record, agreed that a serious-felony third strike bars relief, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall sentence under Penal Code section 1170.126 on the ground that the 2003 criminal-threats conviction (§ 422) is a serious felony rendering the defendant ineligible for Proposition 36 resentencing.“He is not eligible for sentence modification given that his third strike conviction was for a serious felony.” | de novo | correct | agree with court Section 1170.126, subdivision (e)(1) limits resentencing to inmates whose current indeterminate sentence was imposed for a felony that is not a serious or violent felony. Criminal threats under section 422 is expressly listed as a serious felony in section 1192.7, subdivision (c)(38), so a third-strike sentence for that offense is categorically ineligible. The opinion does not state a standard of review, but Wende review entails independent examination of the record and eligibility here turns on a pure question of statutory application, so the court's conclusion follows directly from the statute. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous should file a brief referring to anything in the record that might arguably support the appeal, and the court then decides whether the case is frivolous.
The appellate opinion: sound with gaps — The result is plainly right: section 422 is an enumerated serious felony and section 1170.126, subdivision (e)(1) excludes inmates whose third strike was a serious or violent felony, so the court correctly affirmed the denial. The opinion is thin—it cites no statutory subdivision for its serious-felony conclusion and does not address whether Wende independent review even applies to an appeal from a postjudgment Proposition 36 order (a question other districts had begun to answer in the negative, e.g., People v. Serrano (2012) 211 Cal.App.4th 496, though that decision was not binding on this division)—but any gap is harmless because the court reached and resolved the merits.
Opinion
Filed 7/19/13 P. v. Quinton 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
THE PEOPLE, D063231
Plaintiff and Respondent, v. (Super. Ct. No. SCS172950)
ERIC QUINTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2003, Eric Quinton was convicted of making criminal threats (Pen. Code,1 § 422). He admitted two serious/violent felony prior convictions ("strike priors") within 1 All further statutory references are to the Penal Code unless otherwise specified. the meaning of section 667, subdivisions (b) through (i). Quinton was sentenced to an indeterminate term of 25 years to life.
Following the passage of Proposition 36 (Three Strikes Reform Act of 2012), Quinton filed a petition to recall his sentence pursuant to section 1170.126. The trial court denied Quinton's petition finding that his 2003 conviction for criminal threats was a serious felony and thus Quinton was not eligible for sentence modification.
Quinton filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising a possible, but not arguable issue. We offered Quinton the opportunity to file his own brief on appeal, but he has not responded.2
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Although counsel has not separately set out the possible, but not arguable, issue as required by Anders, supra, 386 U.S. 738, counsel has cited Anders, and the record and brief make clear there is only one possible issue. That issue is whether Quinton, who is serving a third strike sentence following his 2003 conviction for a serious felony with two strike priors, is eligible for sentence 2 The facts of the underlying offense are not relevant to the issues before this court. Thus we will omit the traditional statement of facts. 2 modification under Proposition 36. He is not eligible for sentence modification given that his third strike conviction was for a serious felony.
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any arguable appellate issues. Competent counsel has represented Quinton on this appeal.
DISPOSITION
The order denying Quinton's petition for sentence modification is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12