People v. Dennis CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD253372, SCD254868
- Trial judge
- Charles R. Gill
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Gilbert Nares, Patricia D. Benke
Analysis
The trial court accepted Dennis's guilty pleas to petty theft with a prior and robbery, struck one of his two prior strikes, and sentenced him to 12 years in prison for the robbery and 16 months for the theft. The Court of Appeal affirmed the judgments after an independent review of the record under the Wende/Anders procedure found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's decision to strike only one of Dennis's two prior strikes during sentencing for robbery.“counsel identified as a possible but not arguable issue whether the trial court abused its discretion in declining to strike both of Dennis's prior strikes.” | abuse of discretion | not reached | agree with court The appellate court did not explicitly analyze the merits of the strike decision but concluded that the issue was 'possible but not arguable' and that an independent review of the record disclosed no reasonably arguable appellate issue. This is consistent with the Wende/Anders procedure where counsel identifies issues that are not worth arguing. |
Trial court's denial of Dennis's ex parte motion to recall and modify his sentence.“Dennis subsequently made an ex parte motion to recall and modify his sentence, which the trial court denied.” | unclear | not reached | unsure The opinion notes the denial of the motion but does not identify it as an issue raised on appeal or analyzed by the court. The court's independent review found no reasonably arguable issues, implying this ruling was not successfully challenged or was deemed non-arguable. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying any arguable issues and invites the court to independently review the record if no issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying arguable issues and allowing the court to conduct an independent review.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for handling appeals where appointed counsel finds no arguable issues. The court explicitly states it conducted an independent review of the entire record and found no reasonably arguable appellate issues, which is the required standard in such cases.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Dennis's guilty pleas to petty theft with a prior and robbery, struck one of two prior strikes, sentenced him to 12 years in prison on the robbery and modified the petty theft probation to a concurrent 16-month term, and denied an ex parte motion to recall the sentence. On appeal, appointed counsel filed a Wende brief, Dennis filed no 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 defendant's request to strike both prior strike convictions (Romero motion), after the court struck one strike and imposed a 12-year sentence“counsel identified as a possible but not arguable issue whether the trial court abused its discretion in declining to strike both of Dennis's prior strikes.” | abuse of discretion | correct | agree with court The court identified the abuse-of-discretion standard through counsel's Anders issue and, after independent Wende review, found no arguable error. Given a serious robbery conviction, two prior strikes (arson and domestic violence) and prison priors, a decision to strike only one strike is well within discretion under Romero and Williams; the opinion's brief treatment is consistent with Wende practice, though it supplies no analysis of its own. |
Entry of judgment on guilty pleas in both cases, including modification of probation in the petty theft case to a concurrent 16-month prison term by agreement of the parties, and denial of the ex parte motion to recall and modify the sentence“A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue.” | unclear | correct | agree with court The court conducted the independent record review required by Wende and Anders and found no arguable issue. The modification of probation to a concurrent term was stipulated by the parties, and certificates of probable cause were obtained, so the procedural posture was proper; nothing in the opinion suggests error, but the opinion contains no substantive discussion to evaluate. |
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 no meritorious issues may file a brief referring to anything in the record that might arguably support the appeal, and the court must then examine the record.
- missed: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — A trial court has discretion under Penal Code section 1385 to strike prior strike convictions, and that decision is reviewed for abuse of discretion.
- missed: People v. Carmony (2004) 33 Cal.4th 367 — A trial court's refusal to strike a prior strike is reviewed for abuse of discretion and will be upheld unless the decision is irrational or arbitrary.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure, correctly recites the abuse-of-discretion standard for the strike issue counsel flagged, and reaches a result that the described record readily supports. It does not cite Romero or Carmony or offer any analysis of why declining to strike the second strike was not arguable, which is typical of Wende affirmances but leaves a small gap.
Opinion
Filed 2/19/15 P. v. Dennis 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, D066391
Plaintiff and Respondent, v. (Super. Ct. No. SCD253372, SCD254868) MATTHEW MARK DENNIS, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles R.
Gill, Judge. Affirmed.
Gideon Margolis for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Matthew Mark Dennis appeals from the judgments following his guilty pleas in two separate criminal prosecutions. 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). Dennis has not 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
Dennis filed a single notice of appeal from the judgment in two separate criminal cases against him.
In the first case (case No. SCD253372), Dennis was charged with petty theft with a prior theft conviction (Pen. Code, §§ 484, 666)1 and possession of paraphernalia used for narcotics (Health & Saf. Code, § 11364.1, subd. (a)). The information further alleged that Dennis had prison priors (§§ 667.5, 668) and two prior strikes (§§ 667, subd. (b)-(i), 1170.12, 668). The two prior strikes, which Dennis incurred in 2004, were for arson (§ 451, subd. (b)) and domestic violence (§§ 273.5, 1192.7, subd. (c)(8)). According to the probation officer's report, the petty theft occurred on January 12, 2014, when Dennis shoplifted a bottle of rum, worth $23.99, from a supermarket. When Dennis was arrested, police found a glass pipe in his pocket.
On January 27, 2014, Dennis pled guilty to the petty theft with a prior theft conviction, and the People dismissed the remainder of the complaint. The trial court granted formal probation to Dennis, with the condition that he serve 180 days in local custody, along with the payment of fines and restitution.
1 Unless otherwise indicated, all further statutory citations are to the Penal Code. 2 In the second case (case No. SCD254868), Dennis was charged with robbery (§ 211). The information also alleged prison priors and the same two prior strikes that were alleged in case No. SCD253372. According to the probation officer's report, the robbery occurred on August 2, 2013, when Dennis entered a credit union, demanded that the teller give him money, and left with $5,116. Dennis was not charged with the robbery until March 2014, when he was identified as the perpetrator as the result of an anonymous tip.
Dennis pled guilty to the robbery on June 2, 2014. The trial court indicated when taking Dennis's guilty plea that, during sentencing, it intended to strike one of Dennis's prior strikes. In connection with sentencing, Dennis filed a motion to strike one or both of his prior strikes. At the July 15, 2014 sentencing hearing, the trial court struck one of Dennis's prior strikes and sentenced Dennis to a 12-year prison term. Dennis subsequently made an ex parte motion to recall and modify his sentence, which the trial court denied.
During the sentencing on the robbery conviction (i.e., case No. SCD254868), the parties agreed that the trial court should modify the sentence on the petty theft conviction (i.e., case No. SCD253372) so that Dennis did not have to continue to remain on probation in that case. Specifically, with the agreement of the parties, the trial court ordered that the probation in case No. SCD253372 be modified to a 16-month prison sentence, which Dennis would serve concurrently with the sentence for the robbery conviction.
3 Dennis filed a combined notice of appeal from the judgment in cases Nos. SCD253372 and SCD254868, and obtained certificates of probable cause from the trial court for the appeal in both cases.
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 a possible but not arguable issue whether the trial court abused its discretion in declining to strike both of Dennis's prior strikes.
After we received counsel's brief, we gave Dennis an opportunity to file a supplemental brief, but Dennis did not respond.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue. Dennis has been adequately represented by counsel on this appeal.
4 DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR:
BENKE, Acting P. J.
NARES, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12