People v. Davey CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD134140
- Trial judge
- Kenneth K. So
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court denied Davey's motion to recall his sentence under Penal Code section 1170.126, finding that resentencing would pose an unreasonable public safety risk. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende, finding no reasonably arguable appellate issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to recall sentence under Penal Code section 1170.126“The trial court found that resentencing Davey would pose an unreasonable public safety risk and denied his petition.” | abuse of discretion | not reached | unsure The opinion does not explicitly state the standard of review applied by the appellate court, though the appointed counsel identified 'abuse of discretion' as the potential issue. The court affirmed based on an independent review under Wende. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by the court when appointed counsel files a Wende brief presenting no argument for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potentially arguable issues while stating there is no arguable ground for appeal.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the established Wende/Anders protocol for reviewing cases where appointed counsel finds no arguable issues. However, it is a 'sound with gaps' opinion because it provides no substantive legal analysis of the trial court's discretion or the statutory requirements of Penal Code section 1170.126, relying entirely on the absence of a brief from the appellant.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court denied Kevin Davey's petition under Penal Code section 1170.126 to recall his 25-years-to-life third-strike sentence for failing to register as a sex offender, finding that resentencing him would pose an unreasonable risk of danger to public safety based on his sexual offenses against children, extensive prison disciplinary record, admitted sexual interest in boys, and a psychologist's report. On appeal, appointed counsel filed a Wende brief, Davey 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 petition to recall sentence under Penal Code section 1170.126 on the ground that resentencing would pose an unreasonable risk of danger to public safety“The trial court found that resentencing Davey would pose an unreasonable public safety risk and denied his petition.” | abuse of discretion | correct | agree with court The only issue counsel flagged was whether the trial court abused its discretion, and the record recited in the opinion—convictions for sexual offenses against minors, out-of-state aggravated sodomy of a nine-year-old and aggravated burglaries, an extensive prison disciplinary record, admissions of a desire to have sex with boys, and a psychologist's opinion that he is an obvious sexual threat—amply supports a dangerousness finding under section 1170.126, subdivision (f). Trial counsel also effectively conceded Davey might be categorically ineligible as a sexually violent offender, so the denial was correct on either basis. The court's conclusion that no arguable issue exists is well supported. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no 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 may so advise the court, identifying anything in the record that might arguably support the appeal, and the court then independently examines the record.
The appellate opinion: sound with gaps — The opinion correctly follows the Wende/Anders procedure, identifies the issue counsel flagged, and the recited record supports the trial court's dangerousness finding, so the affirmance is defensible. It does not state the governing standard of review or the substantive framework for the section 1170.126, subdivision (f) dangerousness determination, and it does not address whether Wende review was even required in a postconviction resentencing appeal, but those omissions do not affect the result.
Opinion
Filed 3/25/15 P. v. Davey 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, D065984
Plaintiff and Respondent, v. (Super. Ct. No. SCD134140)
KEVIN ROGER DAVEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Kevin Roger Davey appeals the denial of his motion to recall his sentence under Penal Code section 1170.126. Davey had been convicted in California of committing sexual offenses against minors. He had also been convicted of aggravated sodomy against a nine-year-old child and aggravated burglaries in other states. In 1998, Davey pleaded guilty to failing to register as a sex offender and was sentenced to 25 years to life.
Appointed appellate counsel filed a brief presenting no argument for reversal, but invited this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436. After having independently reviewed the entire record for error, as required by Anders v. California (1967) 386 U.S. 738 and Wende, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Davey filed a motion to recall his sentence under Penal Code section 1170.126.
At a hearing on April 11, 2014, Davey said he was mentally ill and needed treatment. He was not seeking release into the community but wanted to attend a program designed for violent sexual offenders committed to the state mental health system. Davey's trial counsel acknowledged if Davey qualified as a sexually violent predator, he would not be eligible for a hearing to recall his sentence under section 1170.126.
The People presented evidence concerning Davey's prior criminal offenses and extensive prison disciplinary record, his admissions that he wanted to have sexual relations with boys, and a psychologist's report stating that he obviously represents a sexual threat to the community were he not incarcerated.
The trial court found that resentencing Davey would pose an unreasonable public safety risk and denied his petition.
2 DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel has presented no argument for reversal, and invited this court to review the record for error in accordance with People v. Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California, supra, 386 U.S. 738, counsel identified the following as a possible, but not arguable, issue: "Did the trial court abuse its discretion in rendering judgment?"
A review of the record pursuant to Wende and Anders, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue. Davey has been represented by competent counsel on this appeal. We granted Davey permission to file a brief on his own behalf. He has not responded.
DISPOSITION
The judgment is affirmed.
MCDONALD, J.
WE CONCUR:
MCCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12