People v. Bowie CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD151300
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, Judith L. Haller
Analysis
The trial court denied Michael Eugene Bowie's petition for resentencing under Penal Code section 1170.126, determining he was ineligible because his underlying conviction was for a serious felony. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on appeal after a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.126“The trial court denied the petition finding Bowie ineligible for resentencing because his conviction was for a serious felony.” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the standard for appellate review when appointed counsel finds no arguable issues, requiring the court to review the entire record for error.
- 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.
- missed: People v. Superior Court (Romero) (2000) 179 Cal.App.4th 1170 — Establishes the discretionary framework for striking prior convictions under the Three Strikes law, which is distinct from the statutory eligibility requirements of section 1170.126.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework, correctly identifying that the defendant is statutorily ineligible for resentencing under section 1170.126. However, it is a 'sound with gaps' opinion because it fails to explicitly cite the specific statutory subdivisions defining the ineligibility, relying instead on a general statement of ineligibility.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Michael Bowie's May 2013 petition for resentencing under Penal Code section 1170.126, finding him ineligible because his 2000 third-strike conviction was for robbery, a serious felony. On a Wende/Anders appeal with no supplemental brief from the defendant, the Court of Appeal reviewed the record, found no arguable issue, declined to resolve whether the denial order was appealable because ineligibility was plain, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall and resentencing under Penal Code section 1170.126 on the ground that the current conviction (robbery) is a serious felony rendering the petitioner ineligible.“Bowie is plainly ineligible for recall under section 1170.126, subdivisions (b) and (e), section 1192.7, subdivision (c)(19)” | unclear | correct | agree with court Section 1170.126, subdivision (e)(1) limits eligibility to inmates serving an indeterminate third-strike term for a felony that is not a serious or violent felony as defined in sections 667.5(c) or 1192.7(c). Robbery is expressly listed as a serious felony in section 1192.7, subdivision (c)(19), so the statutory text compels the ineligibility finding; the opinion did not state a standard of review, but the question is one of statutory application on undisputed facts and the result is correct under any standard. |
Whether the order denying the section 1170.126 petition is an appealable order (identified by counsel as a possible issue; the trial court made no ruling on this, and the appellate court treated the question as moot).“While the issue raised in No. 1 above is arguable, given the fact that Bowie is plainly ineligible for recall” | unclear | not reached | unsure The court bypassed the then-unsettled appealability question by reasoning that plain ineligibility made the dispute moot. Strictly, appealability is jurisdictional and 'mootness' is not the precise concept, since a nonappealable order would call for dismissal rather than affirmance; but because the result for the defendant is identical either way and the appeal was later confirmed as proper in principle by the Supreme Court's resolution of the split, the shortcut is defensible though not rigorously reasoned. |
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 an appeal wholly frivolous may so advise the court and identify anything in the record that might arguably support the appeal, and the court then reviews the record.
The appellate opinion: sound with gaps — The result is clearly right: robbery is a serious felony under section 1192.7(c)(19), so the defendant was categorically ineligible under section 1170.126(e)(1), and the Wende review was properly conducted. The court, however, sidestepped the appealability question with a 'mootness' label rather than addressing the then-existing published Court of Appeal split on whether denial of a section 1170.126 petition is appealable, and did not state a standard of review.
Opinion
Filed 2/26/14 P. v. Bowie 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, D064129
Plaintiff and Respondent, v. (Super. Ct. No. SCD151300)
MICHAEL EUGENE BOWIE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Appellate Defenders, Inc. and Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
Michael Eugene Bowie appeals from an order denying his request for resentencing under Penal Code1 section 1170.126.
1 All further statutory references are to the Penal Code unless otherwise specified. In 2000, Bowie was convicted of robbery (§ 211) with three serious felony prior convictions (§ 667, subd. (a)(1)); three prison priors (§ 667.5, subd. (b)) and three serious/violent felony prior convictions (§ 667, subds. (b)-(i)).2 The trial court denied Bowie's motion to strike the serious/violent felony prior convictions and sentenced him to an indeterminate term of 41 years to life in prison.
In May 2013 Bowie petitioned for resentencing under section 1170.126. The trial court denied the petition finding Bowie ineligible for resentencing because his conviction was for a serious felony. Bowie 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 possible, but not arguable issues. We offered Bowie the opportunity to file his own brief on appeal but he has not responded.
DISCUSSION
Pursuant to Wende, supra, 25 Cal.3d 436, appellate counsel has asked this court to review the record for error. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies possible, but not arguable issues:
1. Is the order denying the petition for recall appealable?
2. Is Bowie ineligible for recall?
While the issue raised in No. 1 above is arguable, given the fact that Bowie is plainly ineligible for recall under section 1170.126, subdivisions (b) and (e), section 2 Since this appeal does not raise any issue regarding the facts of the underlying conviction, we will omit a statement of facts. 2 1192.7, subdivision (c)(19) makes any dispute about whether the denial is appealable moot.
In addition to considering the issues identified by appellate counsel, we have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not found any reasonably arguable appellate issues that could conceivably lead to a reversal of the trial court's decision. Competent counsel has represented Bowie on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12