People v. Fierro CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF32625
- Trial judge
- L. Brooks Anderholt
- Outcome
- modified — Affirmed as modified.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Patricia D. Benke
Analysis
The trial court accepted Fierro's guilty plea to second-degree murder, sentenced him to 30 years to life, and awarded 67 days of custody credits, though the abstract of judgment erroneously listed only 64 days. On appeal, the Court of Appeal affirmed the judgment but modified it to correct the abstract of judgment to reflect the proper 67 days of credits.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Award of 67 days of custody credits (discrepancy with abstract of judgment showing 64 days)“The sentencing transcript shows the court awarded Fierro 67 days of credit. The abstract of judgment only reflects 64 days of custody credits. We will order the abstract of judgment be amended to reflect the proper number of days.” | unclear | error | agree with court The appellate court identified a clerical error where the abstract of judgment did not match the sentencing transcript. It modified the judgment to correct the record to reflect the 67 days actually awarded by the trial court. |
Denial of certificate of probable cause“Fierro requested a certificate of probable cause but the court denied his request. Fierro filed a separate notice of appeal on June 27, 2014 and did not request a certificate of probable cause.” | unclear | not reached | unsure The court noted the denial but did not analyze it as a reversible error, likely because the appeal proceeded on the merits via the Wende/Anders review without a CPC, or because the issue was not deemed reasonably arguable. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by the appellate court when appointed counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and the court to review the record independently.
The appellate opinion: sound — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing a record where counsel finds no arguable issues. It correctly identifies and corrects a clerical discrepancy in the abstract of judgment based on the sentencing transcript.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court accepted Fierro's guilty plea to second degree murder with an admitted strike prior, sentenced him under the plea agreement to 30 years to life consecutive to a seven-year term in another case, awarded 67 days of custody credits, and denied his request for a certificate of probable cause. On appeal, counsel filed a Wende/Anders brief; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed the judgment as modified to correct the abstract of judgment, which reflected only 64 days of credit instead of the 67 days actually awarded.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and sentence following guilty plea (independent Wende/Anders review of the entire record, including validity of appellate waiver, constitutional validity of the plea, factual basis, and effective assistance of counsel)“We have reviewed the entire record consistent with the mandate of Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738. We have not identified any reasonably arguable issues for reversal on appeal.” | unclear | correct | agree with court Where appointed counsel files a Wende brief and the defendant files nothing, the reviewing court's duty is to independently review the record for arguable issues. The court did so, correctly noted that absent a certificate of probable cause under section 1237.5 the appeal cannot challenge the validity of the plea, and found nothing arguable. The opinion recites that Fierro confessed and led authorities to the weapon, supporting a factual basis, and the sentence matched the negotiated agreement. Nothing in the opinion suggests any error was overlooked. |
Award of 67 days of custody credits as orally pronounced, versus the 64 days recorded in the abstract of judgment“The sentencing transcript shows the court awarded Fierro 67 days of credit. The abstract of judgment only reflects 64 days of custody credits. We will order the abstract of judgment be amended to reflect the proper number of days.” | de novo | error (other) | agree with court The oral pronouncement of judgment controls over the abstract of judgment, and a discrepancy in the abstract is a clerical error that an appellate court may correct on its own motion at any time. The court properly treated the 64-day entry as clerical error and ordered the abstract conformed to the 67 days actually awarded. The court did not cite authority for this correction (e.g., People v. Mitchell), but the result is plainly correct. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issues exist.
- 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, after which the court conducts its own examination of the record.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure, correctly recognizes the section 1237.5 limitation on review after a guilty plea without a certificate of probable cause, and corrects a clear clerical discrepancy between the oral pronouncement of credits and the abstract of judgment. It is brief and cites no authority for the abstract correction, but that omission does not affect the soundness of the result in a routine no-issue appeal.
Opinion
Filed 1/27/15 P. v. Fierro 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, D066233
Plaintiff and Respondent, v. (Super. Ct. No. JCF32625)
EDWARD CORTEZ FIERRO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed as modified.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Edward Cortez Fierro entered into a plea agreement, under the terms of which he pleaded guilty to one count of second degree murder (Pen. Code,1 § 187) and admitted one strike prior (§ 667, subds. (b)-(i)). Pursuant to the agreement, Fierro was sentenced 1 All further statutory references are to the Penal Code unless otherwise specified. to an indeterminate term of 30 years to life, consecutive to a seven-year term for a separate case. Among other terms the trial court awarded Fierro 67 days of custody credits.2 Fierro filed a notice of appeal. He requested a certificate of probable cause but the court denied his request. Fierro filed a separate notice of appeal on June 27, 2014 and did not request a certificate of probable cause.
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 she has been unable to identify any reasonably arguable issues for reversal on appeal.
Counsel requests this court to review the record for error as mandated by Wende. We offered Fierro the opportunity to file his own brief on appeal but he has not responded.
STATEMENT OF FACTS
Since this is an appeal from a judgment following a guilty plea, and there is no certificate of probable cause (§ 1237.5), it is sufficient to note that Fierro confessed to the killing of the victim in this case. He also told authorities where the murder weapon was located.
2 The sentencing transcript shows the court awarded Fierro 67 days of credit. The abstract of judgment only reflects 64 days of custody credits. We will order the abstract of judgment be amended to reflect the proper number of days. 2 DISCUSSION As we have noted counsel has indicated she is unable to identify any reasonably arguable issues for reversal on appeal. Counsel has, however, identified possible, but not arguable issues to assist the court in our review of the record. The possible issues are:
1. Whether the waiver of appellate rights as part of the plea bargain was valid?
2. Whether the court abused its discretion in denying a certificate of probable cause?
3. Was the guilty plea constitutionally valid?
4. Was there an adequate factual basis for the guilty plea?
5. Were the custody credits properly calculated?
6. Did Fierro receive effective assistance of counsel?
We have reviewed the entire record consistent with the mandate of Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738. We have not identified any reasonably arguable issues for reversal on appeal. We have noted, as pointed out by appellate counsel, that the abstract of judgment does not accurately reflect the credits as actually awarded by the court. We will order the abstract of judgment modified to award an additional three days of credits. Fierro has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is modified to award Fierro three additional days of custody credits for a total of 67 days. The superior court is directed to modify the abstract of judgment 3 accordingly and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12