People v. Cook CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD197114
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith L. Haller (author), Richard D. Huffman, Sr., Patricia D. Benke
Analysis
The trial court denied the defendant's motion to recall and modify his sentence under Penal Code section 1170.126, finding the motion untimely and the defendant ineligible because his commitment offense was a serious felony. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on appeal after a Wende review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to recall sentence pursuant to Penal Code section 1170, subdivision (d) and modify sentence pursuant to section 1170.126“The court denied the motion, finding the request to recall the sentence was untimely and appellant was not eligible for sentencing modification because his commitment offense (residential burglary) was a serious felony per section 1192.7, subdivision (c)(18).” | unclear | not reached | unsure The appellate court conducted a Wende review and concluded that no reasonably arguable issues existed, thereby affirming the trial court's denial without explicitly analyzing the timeliness or eligibility arguments in depth. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates that appointed appellate counsel must review the record for error when no arguable issues are presented, and the court must independently review the record to ensure no reasonably arguable issues are overlooked.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potentially arguable issues while arguing for affirmance, allowing the court to review the record independently.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework, correctly identifying that counsel presented no argument and the court performed an independent review. However, it is a 'sound with gaps' opinion because it fails to address the specific legal arguments regarding timeliness and statutory eligibility (serious felony exclusion) raised by the trial court, relying solely on the conclusion that no issues were 'reasonably arguable' without explaining why those specific legal points were meritless.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Donald Lee Cook's 2013 motion to recall his 2006 18-year sentence under Penal Code section 1170, subdivision (d) and to resentence him under section 1170.126 (Proposition 36), finding the recall request untimely and Cook ineligible because his commitment offense, residential burglary, is a serious felony under section 1192.7, subdivision (c)(18). On appeal, appointed counsel filed a Wende brief, Cook filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Proposition 36 resentencing under section 1170.126 on the ground that the commitment offense (residential burglary) is a serious felony under section 1192.7, subdivision (c)(18)“appellant was not eligible for sentencing modification because his commitment offense (residential burglary) was a serious felony per section 1192.7, subdivision (c)(18).” | unclear | correct | agree with court Section 1170.126, subdivision (e)(1) limits resentencing to inmates serving indeterminate three-strikes terms for offenses that are not serious or violent felonies; first degree (residential) burglary is expressly listed as a serious felony in section 1192.7, subdivision (c)(18). Moreover, Cook received a determinate 18-year term after two strikes were stricken, so he was not serving an indeterminate three-strikes life term at all. Ineligibility is clear on the face of the record. |
Denial of motion to recall sentence under section 1170, subdivision (d) as untimely / lack of jurisdiction“whether the court erred in (1) finding appellant is not eligible for resentencing pursuant to section 1170.126; and (2) ruling the court did not have jurisdiction to modify appellant's sentence pursuant to section 1170, subdivision (d).” | unclear | correct | agree with court Section 1170, subdivision (d) permits a court on its own motion to recall a sentence only within 120 days of commitment; a defendant has no standing to invoke it, and the court loses jurisdiction after the window closes. Cook was sentenced in 2006 and moved in 2013, roughly seven years later, so the trial court correctly concluded it lacked jurisdiction. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may file a brief referring to anything in the record that might arguably support the appeal, and the court then reviews the record.
- missed: Dix v. Superior Court (1991) 53 Cal.3d 442 — A trial court's authority to recall a sentence on its own motion under section 1170, subdivision (d) expires 120 days after commitment, and a defendant has no right to move for recall; this authority directly supports the untimeliness ruling but was not cited.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Independent Wende review is constitutionally required only on a defendant's first appeal of right from a conviction, not on appeals from postjudgment motions; the court did not address whether Wende review was owed on this appeal from denial of a postjudgment resentencing motion, though conducting it anyway did not prejudice anyone.
The appellate opinion: sound with gaps — The result is plainly correct: residential burglary is a listed serious felony, Cook was serving a determinate term, and a section 1170, subdivision (d) recall request seven years after sentencing is far outside the 120-day window. As a Wende disposition the opinion contains no substantive analysis and does not cite the statutory text or authorities (such as Dix or Serrano) that confirm the trial court's reasoning or address whether Wende review applied to this postjudgment appeal.
Opinion
Filed 2/19/14 P. v. Cook 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, D064535
Plaintiff and Respondent, v. (Super. Ct. No. SCD197114)
DONALD LEE COOK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
In 2006 Donald Lee Cook entered a negotiated guilty plea to residential burglary (Pen. Code, §§ 459/460)1 and admitted three prior strike convictions (§§ 667, subds. (b)- 1 All statutory references are to the Penal Code. (i), 1170.12), one prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd.
(c)) and serving five prior prison terms (§§ 667.5, subd. (b), 668). The court struck two of the prior strike convictions and sentenced appellant to 18 years in prison.
In August 2013, appellant filed a motion requesting the court recall the previously imposed sentence pursuant to section 1170, subdivision (d) and modify his sentence in accord with section 1170.126, a statute which became effective on November 7, 2012, following the passage of Proposition 36. The court denied the motion, finding the request to recall the sentence was untimely and appellant was not eligible for sentencing modification because his commitment offense (residential burglary) was a serious felony per section 1192.7, subdivision (c)(18).2
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below.
Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to two possible by not arguable issues:
whether the court erred in (1) finding appellant is not eligible for resentencing pursuant to 2 This appeal arises from the court's denial of the sentence modification motion and does not challenge the facts of the underlying burglary. It appears the appellant entered a residential dwelling while the residents were not at home and stole a small amount of personal property that was later recovered.
2 section 1170.126; and (2) ruling the court did not have jurisdiction to modify appellant's sentence pursuant to section 1170, subdivision (d).
We granted defendant permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Cook on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
BENKE, Acting P.J.
HUFFMAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12