People v. Bozeman CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD132807
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- O'Rourke (author), Judith L. Haller, McINTYRE
Analysis
The trial court denied Bozeman's petition for resentencing under Penal Code section 1170.126, ruling he was ineligible due to prior sex crime convictions. The Court of Appeal affirmed the order after a Wende/Anders review found no arguable errors.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.126“In January 2014, the trial court denied Bozeman's petition for resentencing under section 1170.126, ruling he was ineligible for resentencing because he "has a number of sex crimes convictions, including one in the state of Ohio as an adult."” | de novo | correct | agree with court The appellate court affirmed the denial, noting that counsel conceded Bozeman had prior convictions for offenses listed in the exclusionary clause of section 1170.126, subdivision (e)(3), which renders him ineligible for resentencing under that statute. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appellate counsel when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appellate counsel to file a brief identifying any arguable issues or explaining why none exist.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to a case where counsel concedes the legal basis for the trial court's ruling. The court's reliance on the statutory exclusion for sex offenses is supported by the record and counsel's concession.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Steve Bozeman's petition under Penal Code section 1170.126 to recall his 25-years-to-life Three Strikes sentence, finding him ineligible because of prior sex-crime convictions, including an adult Ohio conviction. On appeal, appointed counsel filed a Wende/Anders brief conceding disqualifying priors, Bozeman filed a supplemental brief, and the Court of Appeal reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.126 on the ground that defendant's prior sex-offense convictions render him ineligible under subdivision (e)(3).“the trial court denied Bozeman's petition for resentencing under section 1170.126, ruling he was ineligible for resentencing because he "has a number of sex crimes convictions, including one in the state of Ohio as an adult."” | unclear | correct | agree with court Section 1170.126, subdivision (e)(3) makes an inmate ineligible for resentencing if he has a prior conviction for an offense listed in section 667, subdivision (e)(2)(C)(iv) or 1170.12, subdivision (c)(2)(C)(iv), which include specified sex offenses. Appellate counsel expressly conceded Bozeman has such priors, and the court conducted an independent Wende review and found no arguable issue. On this record the ineligibility ruling appears correct, though the opinion does not identify the specific priors or address whether the Ohio conviction qualifies under California's elements-based comparison. |
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 must so advise the court and refer to anything in the record that might arguably support the appeal, with the court then conducting its own examination.
- missed: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal where the defendant files a pro per supplemental brief, the Court of Appeal's opinion should identify the contentions raised by the defendant and explain why they fail.
The appellate opinion: sound with gaps — The result is defensible: counsel conceded disqualifying priors under section 1170.126, subdivision (e)(3), and the court performed the required independent record review. However, the opinion acknowledges Bozeman filed his own brief yet does not describe or address its contentions as People v. Kelly directs, and it does not discuss whether Wende review even applies to this postjudgment appeal (see People v. Serrano (2012) 211 Cal.App.4th 496) or specify the disqualifying priors.
How this analysis was made · dispute it
record incompleteOpinion
Filed 11/6/14 P. v. Bozeman 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, D065353
Plaintiff and Respondent, v. (Super. Ct. No. SCD132807)
STEVE BOZEMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala Harris, Attorney General, for Plaintiff and Respondent.
In 1998, a jury convicted Steve Bozeman of possession of a controlled substance (Health & Saf. Code, § 11350 subd. (a)), resisting arrest (Pen. Code,1 § 148, subd. (a))
and destruction of evidence. (§ 135.) The court found true allegations he had suffered 1 All further statutory references are to the Penal Code. two prison priors and five strike priors under the "Three Strikes" Law. The court sentenced him to an indeterminate term of 25 years to life.
In January 2014, the trial court denied Bozeman's petition for resentencing under section 1170.126, ruling he was ineligible for resentencing because he "has a number of sex crimes convictions, including one in the state of Ohio as an adult."
DISCUSSION
There are no relevant facts to discuss in this appeal. Appellate counsel presents no argument for reversal of the trial court's order, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), raising the possible but not arguable appellate issue of whether the court erred in determining that Bozeman did not qualify for recall of his sentence under section 1170.126. Counsel concedes Bozeman "does have prior convictions for offenses listed in the exclusionary clause of section 1170.126, subdivision (e)(3)." We offered Bozeman the opportunity to file his own brief on appeal and he has done so.
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any arguable appellate issue. Competent counsel has represented Bozeman on this appeal.
2 DISPOSITION
The order denying Bozeman's petition to recall his sentence is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12