People v. Spencer CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD246752
- Trial judge
- Dwayne K. Moring
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Richard D. Huffman, Sr., Judith L. Haller
Analysis
The trial court accepted Spencer's guilty plea to petty theft with a prior and possession of a controlled substance, imposing a stipulated three-year sentence after Spencer waived his right to appeal the sentence. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on independent review and rejecting Spencer's arguments regarding a new early release program and the excessiveness of the sentence.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the judgment following a guilty plea and stipulated sentence“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 Spencer, has disclosed no reasonably arguable appellate issue.” | de novo | not reached | agree with court The court applied the standard for independent review in cases where appointed counsel files a Wende/Anders brief. The court found no error in the record, specifically noting that the defendant waived the right to appeal the stipulated sentence and that the early release argument was outside the scope of the appeal. The reasoning is consistent with established California appellate procedure for these types of appeals. |
Rejection of argument that the three-year sentence was excessive“Spencer also contends that his three-year sentence was "excessive." However, this argument lacks merit because, as we have explained, Spencer specifically gave up his right to challenge the stipulated sentence.” | de novo | not reached | agree with court The court relied on the specific waiver of the right to appeal the stipulated sentence contained in the plea agreement. Under California law, a defendant who waives the right to appeal a stipulated sentence generally cannot challenge the legality or excessiveness of that sentence on direct appeal. The court correctly applied this principle to dismiss the argument. |
Rejection of argument for early release under Governor Brown's program“The early release program that Spencer references was developed after Spencer was convicted and sentenced in this matter, and is not within the scope of the issues decided by the trial court.” | de novo | not reached | agree with court The court determined that the argument was beyond the scope of the appeal because the program did not exist at the time of sentencing and was not an issue decided by the trial court. Appellate courts generally review the record for errors committed by the trial court, not for the application of new executive policies enacted after the judgment. The court correctly identified this as outside the scope of direct appeal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying potential issues and invites the court to independently review the record for error when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying potential issues and invites the court to independently review the record for error when no arguable issues are presented.
The appellate opinion: sound — The opinion is procedurally sound, correctly applying the Wende/Anders framework for independent review. It accurately addresses the defendant's specific arguments by citing the waiver of appeal rights and the temporal scope of the appeal.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Spencer's guilty plea to petty theft with a prior theft conviction and, consistent with the plea agreement that included a stipulated three-year term and a waiver of the right to appeal that sentence, sentenced him to three years in prison. On appeal, appointed counsel filed a Wende brief, Spencer filed a supplemental brief arguing for early release under the Governor's prison-overcrowding program and that his sentence was excessive, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of the guilty plea, including advisement of constitutional rights and consequences of the plea and voluntariness of the waiver“(1) whether Spencer was properly advised of his constitutional rights, consequences of pleading guilty, and did he voluntarily waive them” | unclear | correct | agree with court The court conducted an independent Wende/Anders review of the record on this counsel-identified issue and found nothing reasonably arguable; nothing in the opinion suggests a defect in the plea colloquy, and the opinion does not describe facts that would cast doubt on the result. |
Finding of a sufficient factual basis for the guilty plea“(2) whether there was a sufficient factual basis established for the guilty plea.” | unclear | correct | agree with court The probation report described the theft of a package from outside a residence, which supports a factual basis for petty theft, and the court found no arguable issue after independent review; the opinion gives no reason to doubt that conclusion. |
Imposition of the stipulated three-year prison sentence, challenged by Spencer as excessive“this argument lacks merit because, as we have explained, Spencer specifically gave up his right to challenge the stipulated sentence.” | unclear | correct | agree with court A defendant who agrees to a specified sentence and expressly waives the right to appeal it cannot challenge that sentence on appeal; the court's conclusion is consistent with People v. Panizzon, though the court did not cite it. |
Spencer's claim that he should receive early release under the Governor's prison-overcrowding program“the issue he raises is beyond the scope of this appeal.” | unclear | not reached | agree with court The program post-dated the judgment and was never before the trial court, so it is not an issue reviewable on direct appeal from the judgment; the court properly declined to reach it while expressing no view on eligibility. |
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 frivolous may so advise the court and identify anything in the record that might arguably support the appeal, after which the court independently reviews the record.
- missed: People v. Panizzon (1996) 13 Cal.4th 68 — A defendant who negotiates a specified sentence and knowingly waives the right to appeal it cannot challenge that sentence on appeal; the court reached this conclusion without citing the controlling authority.
The appellate opinion: sound with gaps — The court performed the required independent Wende/Anders review, addressed the issues identified by counsel, and responded to both points raised in the defendant's supplemental brief as People v. Kelly requires. It reached a defensible result on the appeal-waiver point but did so without citing any authority such as Panizzon, and it miscited Health and Safety Code section 11377 as a Penal Code section, a harmless clerical slip.
Opinion
Filed 6/2/14 P. v. Spencer 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, D064819
Plaintiff and Respondent, v. (Super. Ct. No. SCD246752)
NATHAN J. SPENCER, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed.
Nathan J. Spencer, in pro. per.; Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Nathan J. Spencer appeals from the judgment following his guilty plea. 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). Spencer has 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 March 2013, Spencer was charged with petty theft with a prior theft offense (Pen. Code, §§ 484, 666)1 and possession of a controlled substance (§ 11377, subd. (a)).
The information further alleged five prison priors and two prior strikes. According to the probation officer's report, the petty theft involved taking a package from outside a residence.
In April 2013, Spencer pled guilty to the petty theft count and admitted he had a prior theft offense conviction. The plea agreement included a stipulation to a three-year sentence, and Spencer specifically gave up his right to appeal the stipulated sentence. In accordance with the plea agreement, the trial court sentenced Spencer to three years in prison.
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 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 possible but not arguable 1 All further statutory references are to the Penal Code. 2 issues: (1) whether Spencer was properly advised of his constitutional rights, consequences of pleading guilty, and did he voluntarily waive them; and (2) whether there was a sufficient factual basis established for the guilty plea.
After we received counsel's brief, we gave Spencer an opportunity to file a supplemental brief. Spencer responded, attaching to his response an April 30, 2014 article from the Los Angeles Times about Governor Jerry Brown's recent decision to release some low-level, nonviolent prisoners to comply with a federal court order to reduce prison overcrowding. Spencer contends that he should obtain early release under that program. Although we understand Spencer's argument, the issue he raises is beyond the scope of this appeal. The early release program that Spencer references was developed after Spencer was convicted and sentenced in this matter, and is not within the scope of the issues decided by the trial court. We express no view on whether Spencer is eligible for the Governor's early release program.
Spencer also contends that his three-year sentence was "excessive." However, this argument lacks merit because, as we have explained, Spencer specifically gave up his right to challenge the stipulated sentence.
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 Spencer, has disclosed no reasonably arguable appellate issue. Spencer has been adequately represented by counsel on this appeal.
3 DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12