People v. Bryant CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS256936
- Trial judge
- Theodore M. Weathers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Alex C. McDonald, Gilbert Nares
Analysis
The trial court sentenced the defendant to 29 years to life in prison after he pled guilty to murder and robbery with firearm enhancements, but initially recorded the sentence incorrectly in the minutes and abstract of judgment. The appellate court affirmed the judgment after the trial court corrected the clerical discrepancies and the court found no reasonably arguable issues on independent review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Correction of discrepancies between oral pronouncement, sentencing minutes, and abstract of judgment“The discrepancies among the oral pronouncement of judgment, the sentencing minutes, and the abstract of judgment have been corrected by the trial court.” | unclear | not reached | agree with court agree with court |
Jurisdiction to try defendant as an adult“Did the trial court lack jurisdiction to try Bryant as an adult because it did not expressly make certain necessary findings at the preliminary hearing?” | unclear | not reached | agree with court agree with court |
Entitlement to fitness hearing under Penal Code section 1170.17“Was Bryant entitled to a fitness hearing pursuant to [Penal Code] section 1170.17 before being sentenced as an adult?” | unclear | not reached | agree with court agree with court |
Discretion to strike or stay sentencing for gun use allegation“Did the trial court have discretion to strike or stay the sentencing for the gun use allegation under [Penal Code] section 12022.5?” | unclear | not reached | agree with court agree with court |
Authorities
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues when they find no arguable grounds for appeal.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the appellate court to conduct an independent review of the record to ensure the defendant received a fair trial and effective assistance of counsel.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Anders/Wende framework for independent review. However, it is a 'sound with gaps' opinion because it dismisses the three specific legal issues raised by counsel without providing any substantive legal analysis or citing specific authorities to support the conclusion that they are not reasonably arguable.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Bryant's guilty plea to murder and robbery with admitted firearm-use enhancements and sentenced him to 29 years to life, staying the robbery terms under Penal Code section 654, although the minutes and abstract misrecorded the stay. On appeal under Wende/Anders, the Court of Appeal noted the trial court had already corrected the minutes and abstract, independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sentence of 29 years to life (25 to life for murder plus four years for the Penal Code section 12022.5 enhancement), with robbery and its enhancement imposed and stayed under section 654; discrepancy between oral pronouncement and minutes/abstract.“The discrepancies among the oral pronouncement of judgment, the sentencing minutes, and the abstract of judgment have been corrected by the trial court.” | unclear | correct | agree with court The oral pronouncement controls, and the trial court's amended minutes and amended abstract conformed the record to it before the appeal was decided, so no appellate correction was needed. The terms themselves (25 to life under section 190, middle term of four years under section 12022.5(a), middle term of three years for robbery, stayed under section 654) are lawful on this record. |
Wende/Anders independent review of the record, including counsel's suggested issues on adult-court jurisdiction under Welfare and Institutions Code section 707(d), entitlement to a fitness hearing under Penal Code section 1170.17, and discretion to strike or stay the section 12022.5 enhancement.“We have reviewed the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and considered the issues suggested by counsel, but discerned no reasonably arguable appellate issues.” | unclear | correct | agree with court Bryant admitted at the preliminary hearing he was 16 or older, which supported direct filing in adult court under section 707(d)(1) for murder; section 1170.17 does not require a fitness hearing where direct filing was authorized; and in 2014 section 12022.5(c) barred striking the enhancement notwithstanding section 1385. The court followed the required Wende procedure, including inviting a supplemental brief from Bryant, who did not respond. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may file a brief identifying anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure, describes the facts, charges and sentence, notes the trial court's correction of the clerical discrepancies, and confirms the defendant was invited to file a supplemental brief. The suggested issues lack merit under the governing statutes as they stood in 2014, so the affirmance is well supported.
Opinion
Filed 3/25/14 P. v. Bryant 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, D063884
Plaintiff and Respondent, v. (Super. Ct. No. SCS256936)
DEON LASHAWN BRYANT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed.
Tony Faryar Farmani, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Deon Lashawn Bryant appeals the judgment sentencing him to prison for 29 years to life after he pled guilty to murder and robbery and admitted a personal firearm use allegation. Appointed counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende) that pointed out discrepancies among the oral pronouncement of judgment, the sentencing minutes, and the abstract of judgment, and also identified three issues upon which he requested our independent review. A supplemental clerk's transcript filed after counsel submitted his brief indicates the discrepancies have been corrected by the trial court, and after reviewing the record, we discern no reasonably arguable appellate issues. Accordingly, we affirm the judgment.
BACKGROUND
The People charged Bryant with murder (Pen. Code, § 187, subd. (a)) and robbery (id., § 211) and alleged he personally used a firearm in the commission of both offenses (id., § 12022.5, subd. (a)). The People also alleged Bryant, who was 17 years old when he committed the offenses, was 16 years of age or older at that time, so that he could be tried as an adult in criminal court. (Welf. & Inst. Code, § 707, subds. (b)(1), (3), (17), (d)(1).)
At the preliminary hearing, Bryant admitted he was 16 years or older when he committed the charged offenses. The magistrate found the evidence was sufficient to bind Bryant over for trial on the murder and robbery charges as well as the allegations he personally used a firearm in committing the offenses.
Bryant pled guilty to murder and robbery and admitted the associated firearm use allegations. The trial court accepted the plea and sentenced Bryant to prison as follows:
for the murder, 25 years to life (Pen. Code, § 190, subd. (a)), plus a consecutive term of four years for the attached firearm use enhancement (id., § 12022.5, subd. (a)); and for 2 the robbery, three years (id., § 213, subd. (a)(2)), plus a consecutive term of four years for the attached firearm use enhancement (id., § 12022.5, subd. (a)). The court ordered a stay of execution of the prison terms imposed for the robbery conviction and its attached enhancement pursuant to Penal Code section 654. The sentencing minutes, however, stated that concurrent prison terms were imposed for the robbery conviction and its attached enhancement, and the abstract of judgment did not state execution of those prison terms was stayed.
After counsel filed his brief, we received a supplemental clerk's transcript that contains copies of an order amending the sentencing minutes and an amended abstract of judgment. The sentencing minutes and the abstract of judgment now state that execution of the prison terms imposed for the robbery conviction and its attached firearm use enhancement has been stayed.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal, but asked this court to correct the discrepancy between the sentence the court imposed at the sentencing hearing and the sentence recorded in the minutes and on the abstract of judgment, and to review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel suggested the following issues: (1) "Did the trial court lack jurisdiction to try Bryant as an adult because it did not expressly make certain necessary findings at the preliminary hearing?"; (2) "Was Bryant entitled to a fitness hearing pursuant to [Penal Code] section 1170.17 before being sentenced as an adult?";
3 and (3) "Did the trial court have discretion to strike or stay the sentencing for the gun use allegation under [Penal Code] section 12022.5?" After we received counsel's brief, we notified Bryant by letter that he could file a supplemental brief, but he did not respond.
The discrepancies among the oral pronouncement of judgment, the sentencing minutes, and the abstract of judgment have been corrected by the trial court. We have reviewed the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and considered the issues suggested by counsel, but discerned no reasonably arguable appellate issues. Bryant has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12