People v. Allen CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD135889, SCD129108
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith L. Haller (author), Gilbert Nares, McINTYRE
Analysis
The trial court denied Allen's renewed petition for resentencing under Penal Code section 1170.126 (Proposition 36). The Court of Appeal affirmed the denial, finding that Allen had previously litigated and lost his challenges to the underlying convictions and strike findings in a prior appeal, thereby barring him from raising them again.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of renewed petition for resentencing under Penal Code section 1170.126“In February 2014, the court summarily denied Allen's petition for resentencing pursuant to section 1170.126 (Proposition 36). In June, Allen filed a renewed petition for resentencing pursuant to section 1170.126. In July, the court summarily denied the renewed petition.” | unclear | correct | agree with court The court affirmed the denial, reasoning that Allen had already challenged the validity of his strikes and the sufficiency of the evidence for his robbery conviction in a prior appeal (People v. Allen, D032264) and was therefore barred from raising those issues again. The court also noted it lacked authority to order specific performance of an out-of-state plea agreement. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appointed appellate counsel when no issues are presented for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any potentially meritorious issues and to seek leave to withdraw if none exist.
- relied: People v. Senior (1995) 33 Cal.App.4th 531 — Establishes that a defendant may not challenge orders or findings that were previously litigated and affirmed in a prior appeal.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework and relies on the law of the case to bar re-litigation of previously decided issues. However, it is a 'sound with gaps' opinion because it does not explicitly analyze the statutory requirements of Proposition 36 (Section 1170.126) to determine if Allen was statutorily eligible, relying instead solely on the preclusion of his underlying claims.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court summarily denied Hillery Allen's renewed petition for resentencing under Penal Code section 1170.126 (Proposition 36), following earlier denials of a first Proposition 36 petition and of motions to modify restitution fines in his 1997 battery and 1998 robbery cases, the latter of which carried a 25-years-to-life third-strike term. On appeal, appointed counsel filed a Wende/Anders brief, Allen filed a supplemental brief attacking his Illinois strike prior and the sufficiency of the robbery evidence, and the Court of Appeal held those claims were foreclosed by his 1999 direct appeal, found no arguable issues on independent review, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of Allen's renewed petition for resentencing under Penal Code section 1170.126 (Proposition 36)“In June, Allen filed a renewed petition for resentencing pursuant to section 1170.126. In July, the court summarily denied the renewed petition. Allen appeals the July order. We affirm.” | unclear | correct | agree with court The opinion affirms after Wende/Anders review without stating a standard or explaining why the petition failed. The result is nonetheless plainly correct on the face of the record: Allen's third-strike commitment offense was robbery (§ 211), which is both a serious felony (§ 1192.7, subd. (c)(19)) and a violent felony (§ 667.5, subd. (c)(9)), so he is categorically ineligible for resentencing under section 1170.126, subdivision (e)(1). The renewed petition also repeated a petition already denied in February 2014. The court should have said so, but the omission does not affect the outcome. |
Rejection of Allen's supplemental-brief challenges to the validity of his Illinois strike prior, the denial of a Romero hearing, and the sufficiency of the evidence of robbery (specific intent/force or fear)“He may not now challenge the orders and findings regarding the strikes or the sufficiency of the evidence to support the robbery conviction.” | de novo | correct | agree with court The court correctly treated these as attacks on the long-final 1998 judgment that cannot be relitigated in an appeal from a postjudgment order denying Proposition 36 relief. The opinion notes Allen admitted the priors, received a hearing on dismissing a strike, and litigated both the strike ruling and the sufficiency of the robbery evidence in his 1999 direct appeal (D032264), where this court rejected them. People v. Senior bars raising in a later appeal issues that were or could have been raised in an earlier one; law-of-the-case principles independently foreclose issues actually decided in D032264. Either way the claims are not cognizable here. |
Refusal to order specific performance of the 1991 Illinois plea agreement underlying the strike prior“it is clear that we do not have the authority to order specific performance of the 1991 Illinois plea agreement.” | de novo | correct | agree with court A California Court of Appeal reviewing a postjudgment order in a California criminal case has no jurisdiction over an Illinois judgment or plea bargain, and the claim is in any event outside the scope of an appeal from a section 1170.126 denial. The conclusion is correct even though the opinion gives no citation for it. |
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 before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request permission to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal, after which the court conducts its own examination of the record.
- relied: People v. Senior (1995) 33 Cal.App.4th 531 — A defendant may not raise in a subsequent appeal issues that were or could have been raised in a prior appeal from the same judgment, absent a showing of justification for the delay.
The appellate opinion: sound with gaps — The result is clearly right: Allen's commitment offense of robbery is a serious and violent felony that makes him ineligible for Proposition 36 resentencing, and his attacks on the strike prior and robbery conviction were litigated and rejected in his 1999 direct appeal. The opinion, however, never articulates the statutory basis for ineligibility under section 1170.126, subdivision (e), does not address the then-recent clarification in Teal v. Superior Court (2014) 60 Cal.4th 595 that such denials are appealable, and does not confront whether Wende review applies at all to a postjudgment appeal rather than a first appeal of right.
Opinion
Filed 4/14/15 P. v. Allen 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, D066401
Plaintiff and Respondent, v. (Super. Ct. Nos. SCD135889, SCD129108) HILLERY D. ALLEN, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
PROCEDURAL BACKGROUND
In August 1997, in Case No. SCD129108, Hillery Darnell Allen entered a negotiated guilty plea to battery with serious bodily injury (Pen. Code,1 § 243, subd. (d))
1 Further statutory references are to the Penal Code. and admitted having suffered a prior serious felony conviction (§ 667, subd. (a)) based on a 1991 Illinois conviction of burglary of an inhabited dwelling. The court dismissed a strike (§ 667, subds. (b)-(i)) based on the same Illinois conviction and placed Allen on probation. The court later revoked probation.
In September 1998, in Case No. SCD135889, Allen was found guilty of robbery (§ 211) in a court trial. Allen admitted he had prior convictions in the Illinois case and in Case No. SCD129108 and, based on those convictions, the court found he had two serious felony priors and two strikes. In October, the court declined to dismiss the strikes and sentenced Allen to prison for 25 years to life for robbery, five years for each serious felony prior and a concurrent four-year middle term for battery with serious bodily injury (Case No. SCD129108). In November 1999, this court affirmed the judgment in Case No. SCD135889 (People v. Allen (Nov. 29, 1999, D032264) [nonpub. opn.].). We take judicial notice of the opinion in that appeal.
In January and December 2011, the trial court denied Allen's motions for modification of the restitution fines imposed as part of his sentence in both trial court cases. In June 2012, the court denied Allen's petition for writ of error coram nobis and motion for modification of sentence which again sought modification of the restitution fines in both cases. In February 2014, the court summarily denied Allen's petition for resentencing pursuant to section 1170.126 (Proposition 36). In June, Allen filed a renewed petition for resentencing pursuant to section 1170.126. In July, the court summarily denied the renewed petition. Allen appeals the July order. We affirm.
2 DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, 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).
We granted Allen permission to file a brief on his own behalf. He has filed a supplemental brief in which he contends his Illinois conviction did not qualify as a strike and the California court violated his constitutional rights by denying him a hearing regarding dismissal of the strike. Allen seeks specific performance of the 1991 plea agreement underlying the Illinois prior conviction. He also challenges his robbery conviction, arguing there was no evidence of the required specific intent, so the conviction should have been reduced to one for theft.
In Case No. SCD135889, Allen admitted having suffered the Illinois conviction and the conviction in Case No. SCD129108 which formed the basis for the strikes. The trial court held a hearing on his request to dismiss one of his strikes and denied the request. (People v. Allen, supra, D032264, at pp. 10-11.) This court concluded the denial was not an abuse of discretion. (Id. at pp. 12-13). In Case No. SCD135889, the trial court declined to find Allen guilty of grand theft person as a lesser included offense of robbery, noting the force and fear element required for robbery was present. In People v. Allen, supra, this court rejected Allen's contention there was no evidence of force or fear and therefore the evidence was insufficient to convict him of robbery.
(Id. at pp. 3-7.) Thus, in People v. Allen, supra, Allen had a full opportunity to challenge 3 his robbery conviction and the validity of his strikes and did in fact do so. He may not now challenge the orders and findings regarding the strikes or the sufficiency of the evidence to support the robbery conviction. (People v. Senior (1995) 33 Cal.App.4th 531, 535-538.) Although Allen's argument regarding specific performance is not completely clear, it is clear that we do not have the authority to order specific performance of the 1991 Illinois plea agreement.
A review of the record pursuant to Wende and Anders has disclosed no reasonably arguable appellate issues. Allen has been competently represented by appellate counsel.
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
MCINTYRE, J.
Cites, in this corpus
- People v. Senior H012457 · 1995-03-24
- People v. Wende Crim. 20851 · 1979-10-12