People v. Larson CA4/1
- Proceeding
- appeal from a judgment and order
- Trial court
- Superior Court of San Diego County · No. SCE195230
- Trial judges
- Louis R. Hanoian; David J. Danielson
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Richard D. Huffman, Sr., O'Rourke
Analysis
The trial court denied Larson's petition for recall of sentence under the Three Strikes Law, finding the statute inapplicable because his current offense was a serious felony. The Court of Appeal affirmed the judgment after a Wende/Anders review found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence under Penal Code section 1170.126“In April 2013 the court denied the petition, finding the section 1170.126 recall did not apply because his current offense was a serious felony.” | unclear | not reached | unsure The appellate court did not independently review the trial court's legal conclusion regarding the applicability of section 1170.126. Instead, the court relied on the Wende/Anders procedure, stating it had reviewed the record and found no reasonably arguable appellate issues, thereby affirming the judgment without addressing the specific merits of the recall petition. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to identify arguable issues or certify that none exist, requiring the court to review the record independently.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues, even if frivolous, and allows the court to affirm if no arguable issues are found after independent review.
The appellate opinion: sound with gaps — The court relied on the Wende/Anders framework to conduct an independent review of the record. It concluded that no reasonably arguable issues existed, including those raised in the defendant's supplemental briefs, and therefore affirmed the judgment without addressing the specific legal arguments regarding the Three Strikes Law or out-of-state convictions.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Harvey Larson's petition under Penal Code section 1170.126 to recall his 25-years-to-life Three Strikes sentence, finding him ineligible because his current offense (resisting an executive officer with personal use of a deadly weapon) was a serious felony. On appeal, counsel filed a Wende/Anders brief, Larson filed supplemental briefs attacking the use of an out-of-state prior as a strike and enhancement, and the Court of Appeal reviewed the record, found no arguable issues, 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 the current offense is a serious felony“In April 2013 the court denied the petition, finding the section 1170.126 recall did not apply because his current offense was a serious felony.” | unclear | correct | agree with court Section 1170.126, subdivision (e)(1) limits resentencing to inmates whose current sentence was imposed for a felony that is not serious or violent. The jury found Larson personally used a deadly or dangerous weapon in committing count 1 (§ 12022, subd. (b)(1)), which makes that offense a serious felony under section 1192.7, subdivision (c)(23); independently, being armed with a deadly weapon during the current offense is a disqualifying factor under sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). On the facts recited, ineligibility follows as a matter of law, so the denial was correct. Larson's supplemental contentions about the out-of-state prior attack the original judgment and are not cognizable on appeal from a post-judgment order denying a recall petition, though the opinion does not say so. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- missed: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal where the defendant files a supplemental brief, the Court of Appeal's opinion should set out the contentions the defendant personally raised and the reasons they fail; this opinion lists Larson's contentions but gives no reasons for rejecting them.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent review is not required in appeals from postconviction orders that are not the first appeal of right; the court should instead address only issues raised in the defendant's supplemental brief. The opinion conducted full Wende review without noting this, which did not prejudice Larson.
The appellate opinion: sound with gaps — The result is plainly correct because a jury finding of personal use of a deadly weapon makes the current offense a serious felony and disqualifies Larson from Proposition 36 resentencing. The opinion, however, recites Larson's supplemental contentions without explaining why they fail (as People v. Kelly directs) and does not note that attacks on the original judgment's treatment of an out-of-state prior are not cognizable in an appeal from denial of a section 1170.126 petition.
How this analysis was made · dispute it
record incompleteOpinion
Filed 4/2/14 P. v. Larson 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, D063899
Plaintiff and Respondent, v. (Super. Ct. No. SCE195230)
HARVEY EUGENE LARSON,
Defendant and Appellant.
APPEAL from a judgment and order of the Superior Court of San Diego County, Louis R. Hanoian and David J. Danielson, Judges. Affirmed.
Defendant Harvey Eugene Larson was convicted of one count of resisting an executive officer (Pen. Code,1 § 69; count 1) and one count of exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8; count 2). It was also found that Larson personally used a deadly or dangerous weapon in the commission of count 1 (§ 12022, subd. (b)(1), he had three prison priors (§ 667.5, subd. (b)), one serious felony prior (§ 667, subd. (a)(1)), and three strike priors (§§ 667, subds. (b)-(i), 1170.12).
1 All further undesignated statutory references are to the Penal Code. Thereafter, the court declined to strike one of Larson's strike priors. The court sentenced him to a term of 25 years to life, plus nine years, consisting of 25 years to life for count 1, one year for the section 12022, subdivision (b) enhancement, five years for the section 667, subdivision (a)(1) prior, and three years for the section 667.5, subdivision (b) prison priors. The sentence for count 2 was stayed under section 654.
In March 2013 Larson filed a petition for sentence recall under the Three Strikes Law. In April 2013 the court denied the petition, finding the section 1170.126 recall did not apply because his current offense was a serious felony.
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 Larson the opportunity to file his own brief on appeal.
Larson responded by filing as a "responsive brief" a petition for writ of habeas corpus with the Superior Court of San Diego County asserting Proposition 36, the Three Strikes Reform Act of 2012, does not apply to nonserious felonies such as exhibiting a screwdriver. He also asserts (1) that error negated the court's use of an out-of-state conviction as a five-year enhancement; (2) use of an out-of state conviction as a strike and enhancement was improper; (3) use of an out-of-state conviction as a third strike was improper; (4) the out-of-state conviction should have been considered a misdemeanor;
and (5) the out-of-state conviction does not constitute a serious felony.
Larson thereafter requested leave to amend his supplemental brief, which request we granted. Larson filed as an amended supplemental brief another habeas petition raising the same issues as his original supplemental brief.
2 FACTUAL BACKGROUND
The record in this matter does not contain a description of the underlying facts constituting the current offenses. However, they are not relevant to this appeal.
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. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies the following possible, but not arguable, issue:
1. Did the trial court err in concluding Larson did not qualify for recall of sentence and resentencing under section 1170.126?
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and Larson's responsive/supplemental briefs, and have not found any reasonably arguable appellate issues. Competent counsel has represented Larson on appeal.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12