The People v. Santos CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SF91841
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), O'Rourke, Cynthia Aaron
Analysis
The trial court denied Santos's petition for recall of sentence under Penal Code section 1170.126, determining he was ineligible because his residential burglary convictions were classified as serious felonies. The Court of Appeal affirmed the denial, finding no reasonably arguable appellate issues after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence under Penal Code section 1170.126“The trial court denied Santos's petition on the ground that Santos was ineligible to file a petition under section 1170.126 because his residential burglary convictions were classified as serious felonies.” | de novo | correct | agree with court The appellate court affirmed the trial court's ruling. The court applied the standard of review for statutory interpretation, which is de novo. The court found that the trial court correctly applied the statute because residential burglary is a serious felony, making the petitioner ineligible for recall under section 1170.126. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying potentially arguable issues and inviting the court to review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing an appeal where counsel finds no arguable issues. The court properly identifies that the appellant's arguments were outside the scope of the appeal from the denial of the recall petition.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Isaac Garcia Santos's Penal Code section 1170.126 petition to recall his 85-years-to-life three strikes sentence, finding him ineligible because his current convictions for residential burglary are serious felonies under section 1192.7, subdivision (c)(18). On appeal, appointed counsel filed a Wende brief, Santos filed a supplemental brief raising challenges to his original 1995 sentence, and the Court of Appeal, after independent review, found no arguable issue and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence under Penal Code section 1170.126 on the ground that defendant was ineligible because his current residential burglary convictions are serious felonies“The trial court denied Santos's petition on the ground that Santos was ineligible to file a petition under section 1170.126 because his residential burglary convictions were classified as serious felonies. (§ 1192.7, subd. (c)(1)(18).)” | unclear | correct | agree with court Section 1170.126, subdivision (e)(1) limits resentencing to inmates whose current sentence is not for a serious or violent felony. First degree (residential) burglary is expressly listed as a serious felony in section 1192.7, subdivision (c)(18). Santos was serving an indeterminate three strikes term for three counts of residential burglary, so he was statutorily ineligible on the face of the record, and no further discretionary determination was required. The opinion did not articulate a standard of review beyond Wende/Anders independent review, but the eligibility question is purely legal and the result is compelled by the statute. |
Original 1995 three strikes sentence (challenged in defendant's supplemental brief on Apprendi, cruel and unusual punishment, plea agreement, and ex post facto grounds)“Santos raised four arguments that do not pertain to the petition to recall his sentence under section 1170.126, and thus are not within the scope of an appeal from the ruling on that petition.” | unclear | not reached | agree with court An appeal from a postjudgment order denying a section 1170.126 petition does not reopen the long-final 1995 judgment; attacks on the validity or constitutionality of the original sentence are not cognizable in that appeal. The court correctly declined to reach these claims as outside the scope of the appeal, while still stating it had considered them in its independent review. |
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 error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court but must identify anything in the record that might arguably support the appeal, and the court must then independently examine the record.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende/Anders independent review is constitutionally required only in a defendant's first appeal of right; in an appeal from a postjudgment order the court may dismiss as abandoned if neither counsel nor the defendant raises an arguable issue. The court here conducted full Wende review without addressing whether it was required, which if anything gave the defendant more process than Serrano demands.
The appellate opinion: sound with gaps — The result is plainly correct: residential burglary is a listed serious felony under section 1192.7, subdivision (c)(18), which makes an inmate categorically ineligible for resentencing under section 1170.126, subdivision (e)(1), and the court properly declined to entertain collateral attacks on the 1995 judgment. The opinion is spare—it does not cite the eligibility subdivision of section 1170.126, discuss appealability of the order, or address whether Wende review applies to postjudgment appeals under People v. Serrano—but none of these gaps affects the outcome.
Opinion
Filed 9/12/13 P. v. Santos 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, D063644
Plaintiff and Respondent, v. (Super. Ct. No. SF91841)
ISAAC GARCIA SANTOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Isaac Garcia Santos, in pro. per.; Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Isaac Garcia Santos appeals the denial of his petition for recall of sentence.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Santos responded to our invitation to file a supplemental brief.
After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, Santos was convicted of three counts of residential burglary. (Pen. Code § 459.)1 Because Santos had two prior serious felonies, he was sentenced under the three strikes law (§ 667, subd. (e)(2)) to a term of 85 years to life.
In February 2013, Santos filed a petition pursuant to section 1170.126 to recall his sentence. Under section 1170.126, a prisoner serving an indeterminate life term under the three strikes law may file a petition for recall of sentence if, among other things, the prisoner's current sentence is not for the commission of a serious and/or violent felony as defined in section 667.5 or section 1192.7. The trial court denied Santos's petition on the ground that Santos was ineligible to file a petition under section 1170.126 because his residential burglary convictions were classified as serious felonies. (§ 1192.7, subd.
(c)(1)(18).)
II
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this 1 All further statutory references are to the Penal Code. 2 court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Pursuant to Anders, supra, 386 U.S. 738, counsel identified as a possible but not arguable issue: Is petitioner entitled to resentencing pursuant to section 1170.126?
After we received counsel's brief, we gave Santos an opportunity to file a supplemental brief, which he filed on August 23, 2013. Santos raised four arguments that do not pertain to the petition to recall his sentence under section 1170.126, and thus are not within the scope of an appeal from the ruling on that petition. Specifically, Santos argues (1) his sentence was based on facts the jury did not find beyond a reasonable doubt; (2) the length of his sentence constitutes cruel and unusual punishment; (3) his constitutional rights were violated in that his sentence was enhanced based on a prior plea agreement or contract; and (4) his sentence violated the ex post facto clause.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel and by Santos, has disclosed no reasonably arguable appellate issue. Santos has been adequately represented by counsel on this appeal.
3 DISPOSITION
The order denying the petition to recall sentence is affirmed.
IRION, J.
WE CONCUR:
O'ROURKE, Acting P. J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12