People v. Thornton CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. PLV64547
- Trial judge
- Desiree Bruce-Lyle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, Patricia D. Benke
Analysis
The trial court revoked and reinstated Thornton's parole, imposing 135 days of custody after he admitted to or was found to have violated parole conditions including failure to register as a sex offender and possession of prohibited material. The Court of Appeal affirmed the judgment, finding no arguable issues for reversal after reviewing the record pursuant to Wende and Anders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to dismiss the parole revocation petition as untimely“Whether the trial court erred in denying Thornton's motion to dismiss the petition as being untimely.” | unclear | correct | agree with court agree with court |
Sufficiency of evidence to prove failure to register, possession of prohibited material, and failure to attend programs“Whether the evidence was sufficient to prove Thornton failed to register, possessed prohibited material on his cell phone, and failed to attend required programs.” | substantial evidence | correct | agree with court agree with court |
Constitutional challenge to Penal Code section 290 registration requirement“The difficulty with this contention is that it is addressed to a requirement imposed in the underlying criminal case, and it is not an issue which can be raised in an appeal from a later parole revocation.” | unclear | correct | agree with court agree with court |
Claim of improper identification by parole agent“This issue was not raised in the trial court.” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for arguable issues when no issues are raised in the brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and request the court to review the record for error.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for arguable issues. It properly dismisses the appellant's arguments as either waived, not raised below, or unrelated to the scope of the parole revocation appeal.
How this analysis was made · dispute it
unusual dispositionThe superior court, after an evidentiary hearing at which Thornton represented himself, denied his motions (including a motion to dismiss the parole revocation petition as untimely), found he violated parole by failing to register under Penal Code section 290, failing to complete programs, and possessing prohibited material, and revoked and reinstated parole with 135 days custody. On appeal, counsel filed a Wende/Anders brief, Thornton filed a supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Thornton's motion to dismiss the parole revocation petition as untimely“Thornton filed a number of motions all of which were denied, including a motion to dismiss the petition.” | unclear | correct | unsure The court flagged this only as a possible, non-arguable issue under Anders and did no analysis of the timeliness rules; it concluded after Wende review that nothing arguable existed. The opinion supplies no facts about filing dates, so the result cannot be independently verified, but nothing in the opinion suggests error. |
Finding that the evidence sufficed to prove Thornton failed to register, possessed prohibited material, and failed to complete programs“Thornton was required to update his registration by no later than October 3, 2013, however he failed to do so.” | substantial evidence | correct | agree with court The parole agent's testimony that Thornton missed the October 3 registration deadline, had not completed programs, and had nude photos on his phone constitutes substantial evidence; Thornton's contrary testimony presented a credibility question for the trier of fact. The court's implicit sufficiency conclusion is consistent with the deferential standard. |
Rejection of Thornton's constitutional challenge to the section 290 registration requirement in a parole revocation appeal“it is addressed to a requirement imposed in the underlying criminal case, and it is not an issue which can be raised in an appeal from a later parole revocation.” | de novo | correct | agree with court A registration requirement imposed as part of the underlying judgment is not reviewable in an appeal from a later parole revocation order; the court correctly treated it as outside the scope of the appeal. No authority is cited, but the proposition is a straightforward application of the rule that an appeal from a post-judgment order does not reopen the judgment. |
Thornton's claims regarding in-court identification, law library access, self-representation standards, and a false petition/perjury“Again, these are issues without any basis in the record.” | unclear | not reached | agree with court The court declined these claims as forfeited (identification not raised below) or unsupported by the appellate record. Treating unraised and record-less claims as non-arguable is consistent with ordinary appellate principles, though the court's treatment is cursory and cites no authority. |
Order revoking and reinstating parole with 135 days custody“The order revoking and reinstating parole is affirmed.” | abuse of discretion | correct | agree with court Given the admitted prior violation and the new violations proven at the hearing, revocation and reinstatement with a short custody term is within the court's discretion, and the opinion reports nothing suggesting an abuse. The Wende review found no arguable issue. |
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 arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court, identifying anything in the record that might arguably support the appeal, and the court then reviews the record.
The appellate opinion: sound with gaps — The court properly conducted Wende/Anders review, addressed each issue in the defendant's supplemental brief, and reached the defensible conclusion that no arguable issue existed. It cites no authority for its scope-of-appeal and forfeiture rulings and does not analyze the timeliness motion, leaving the reasoning thin though the result is correct.
Opinion
Filed 8/1/14 P. v. Thornton 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, D065230
Plaintiff and Respondent, v. (Super. Ct. No. PLV64547)
WILLIAM THORNTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Desiree Bruce-Lyle, Judge. Affirmed.
Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
As of August 29, 2013, William Thornton was on parole for second degree robbery. Parole authorities filed a petition in the superior court to revoke parole pursuant to Penal Code section 3000.01. The petition alleged various violations including possession of a methamphetamine pipe and burglary tools. Thornton waived hearing on the petition and admitted the violation. The court revoked and reinstated parole subject to 39 days custody with credit for 39 days served. The court also imposed a requirement that he complete an outpatient treatment program and BI program.
In October 2013, Thornton was arrested for failing to register as a sex offender, failure to complete his programs and possession of pornographic material.
Thornton requested and received a hearing on the parole revocation petition. He represented himself at that hearing. Thornton filed a number of motions all of which were denied, including a motion to dismiss the petition.
Follow an evidentiary hearing the court revoked and reinstated parole on the original terms and conditions and imposed 135 days custody with credit for 108 days.
Thornton filed a petition for rehearing, which was denied. He thereafter filed a timely notice of appeal.
Appellate 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) indicating counsel has not been able to find an arguable issue for reversal on appeal. Counsel requests this court to review the record for error. We offered Thornton the opportunity to file his own brief on appeal, and he has responded. We will address the issues raised by Thornton below.
STATEMENT OF FACTS
State parole agent Mike Shanahan testified that Thornton was on parole as a convicted sex offender. Thornton was required to wear a CPS device and to register 2 pursuant to Penal Code section 290. He was also ordered not to possess pornographic material.
Thornton was required to update his registration by no later than October 3, 2013, however he failed to do so. Thornton was arrested on October 17, 2013. As of that point Thornton had failed to complete the required programs. At the time of his arrest he had three pictures of a nude female on his cell phone.
Thornton testified he had gone to the El Cajon Police Department on October 3, 2013, but was told to come back on October 8. Thornton said that when he was arrested he was on his way to the Sheriff's Department in order to register.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, indicating she is unable to find any arguable issues for reversal on appeal. Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the following possible, but not arguable issues:
1. Whether the trial court erred in denying Thornton's motion to dismiss the petition as being untimely.
2. Whether the evidence was sufficient to prove Thornton failed to register, possessed prohibited material on his cell phone, and failed to attend required programs.
As we have noted, Thornton has filed his own brief on appeal. His brief is somewhat rambling, but we can discern a few issues that we should identify.
First, Thornton contends the requirement that he register under Penal Code section 290 deprives him of several constitutional rights. The difficulty with this contention is 3 that it is addressed to a requirement imposed in the underlying criminal case, and it is not an issue which can be raised in an appeal from a later parole revocation.
Next Thornton complains he was not properly identified by the parole agent in court. He has included his own drawing of the courtroom to illustrate his point. This issue was not raised in the trial court.
Thornton next makes a generalized complaint about access to the jail law library and contends the court was wrong when it told him he would not get special treatment because he represented himself. He argues that he should be held to a lower requirement than would be the case for an attorney. Again, these are issues without any basis in the record.
Finally, Thornton argues the petition filed by the parole agent was false and that another agent perjured herself. These issues are not based on the record on appeal.
In sum, Thornton has not raised any arguable issues for reversal on appeal.
Pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 we have reviewed the entire record and have not discovered any arguable issues for reversal on appeal. Thornton has been represented by competent counsel on this appeal.
4 DISPOSITION
The order revoking and reinstating parole is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12