People v. Birch CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD127314
- Trial judge
- J. Danielson
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Cynthia Aaron (author), Richard D. Huffman, Sr., Joan K. Irion
Analysis
The trial court denied Birch's petition for recall of sentence under the Three Strikes Reform Act of 2012, determining he was ineligible because his current conviction for residential burglary is a serious felony. The Court of Appeal affirmed the denial after an independent review of the record and consideration of Birch's supplemental arguments regarding his original sentence.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence under Penal Code section 1170.126“the trial court stated that Birch was ineligible for resentencing under section 1170.126 because his current commitment was for the serious felony offense of residential burglary (§§ 459, 460).” | de novo | correct | agree with court The appellate court affirmed the trial court's order. The court applied the standard that a petitioner is ineligible for resentencing under section 1170.126 if the current conviction is for a serious or violent felony. Since residential burglary is a serious felony under section 1192.7, subdivision (c)(18), the trial court correctly found Birch ineligible. The appellate court's independent review under Wende/Anders confirmed no error. |
Imposition of two separate five-year serious felony prior enhancements (Penal Code section 667, subdivision (a)(1))“The record in this case does not demonstrate that the trial court in the underlying case erred in imposing two separate five-year serious felony prior enhancements (§ 667, subd. (a)(1))” | abuse of discretion | correct | agree with court Birch argued in his supplemental brief that the enhancements were improper because the priors were not brought and tried separately. The appellate court reviewed the record and found no demonstration of error. The court treated this as a claim regarding the original sentence, noting that even if cognizable, it did not support reversal. |
Imposition of sentence for prison priors (Penal Code section 667.5)“the court in the underlying case imposed sentence on only a single prison prior (667.5, subd. (b)).” | abuse of discretion | correct | agree with court Birch contended the trial court erred by sentencing him for two prison priors. The appellate court reviewed the record and determined the trial court imposed sentence on only a single prison prior, with execution stayed. Thus, the claim was factually incorrect based on the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when presenting no argument for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who wish to withdraw from a criminal appeal, requiring a brief identifying any potentially meritorious issues and an independent court review.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory eligibility requirements of the Three Strikes Reform Act and properly conducts the required independent review under Wende/Anders. It addresses the specific arguments raised in the supplemental brief by referencing the record, confirming that the trial court's factual findings regarding the nature of the current offense and the number of priors were accurate.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Ronald Birch's Penal Code section 1170.126 petition for recall of his 35-years-to-life Three Strikes sentence, finding him ineligible because his current commitment offense, first degree burglary, is a serious felony under section 1192.7, subdivision (c)(18). On appeal, appointed counsel filed a Wende brief, Birch filed a supplemental brief attacking his original 1997 enhancements, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.126 petition for recall of sentence on the ground that the current commitment offense (first degree burglary, §§ 459, 460) is a serious felony under § 1192.7, subd. (c)(18), rendering Birch ineligible for resentencing“the trial court stated that Birch was ineligible for resentencing under section 1170.126 because his current commitment was for the offense of residential burglary (§§ 459, 460), which is a serious felony as defined by section 1192.7, subdivision (c)(18).” | de novo | correct | agree with court Section 1170.126, subdivision (b) limits relief to inmates serving indeterminate third-strike terms for offenses that are not serious or violent felonies, and section 1192.7, subdivision (c)(18) expressly lists any first degree burglary as a serious felony. The record shows Birch's 1997 conviction was for first degree burglary with a 25-years-to-life third-strike term, so ineligibility follows directly from the statute; the court's independent Wende/Anders review of this legal question was appropriate and the result is compelled. |
Rejection of Birch's supplemental claim that the 1997 sentencing court erred in imposing two five-year § 667, subd. (a)(1) serious felony prior enhancements because the priors were not brought and tried separately“The record in this case does not demonstrate that the trial court in the underlying case erred in imposing two separate five-year serious felony prior enhancements (§ 667, subd. (a)(1))” | unclear | correct | agree with court The court assumed without deciding that a challenge to the original 1997 sentence could be raised in an appeal from the denial of a recall petition, then rejected the claim because nothing in the record showed the two priors arose from charges not brought and tried separately. Because the appellant bears the burden of showing error on an adequate record and the original sentence became final long ago, the disposition is defensible; the court did not need to resolve cognizability given the absence of record support. |
Rejection of Birch's supplemental claim that the 1997 sentencing court imposed sentence on two § 667.5 prison priors“the court in the underlying case imposed sentence on only a single prison prior (667.5, subd. (b)).” | unclear | correct | agree with court The claim rested on a factual premise contradicted by the record, which shows one prison prior finding with execution of sentence stayed. The court correctly disposed of the claim on that basis; although staying rather than imposing or striking a § 667.5, subd. (b) enhancement is itself irregular under People v. Langston, that aspect of the 1997 judgment was not before the court on appeal from the 2014 order and could only have favored Birch. |
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 before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must so advise the court and the court must conduct its own examination of the record to protect the indigent defendant's right to counsel.
- missed: People v. Teal (2014) 60 Cal.4th 595 — An order denying a section 1170.126 petition for recall of sentence, including on the ground of ineligibility, is an appealable postjudgment order under section 1237, subdivision (b); the court assumed appealability without citing this then-recent controlling authority.
The appellate opinion: sound with gaps — The opinion correctly identifies that first degree burglary is a listed serious felony under section 1192.7, subdivision (c)(18), which disposes of eligibility under section 1170.126 as a matter of law, and it addresses both of Birch's supplemental contentions on the record. It skips the threshold questions of appealability (People v. Teal) and whether attacks on a long-final original sentence are cognizable in this appeal, assuming them away rather than deciding them, but the result is unaffected.
Opinion
Filed 4/22/15 P. v. Birch 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, D066437
Plaintiff and Respondent, v. (Super. Ct. No. SCD127314)
RONALD BIRCH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David. J.
Danielson, Judge. Affirmed.
Michelle Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. I.
INTRODUCTION
Ronald Birch filed a petition for recall of sentence pursuant to the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126.)1 Section 1170.126, subdivision (b)
permits individuals who are serving indeterminate sentences under the Three Strikes law and whose current conviction is not based on a serious or violent felony, to file a petition for recall of sentence. The trial court denied Birch's petition. In its order, the trial court stated that Birch was ineligible for resentencing under section 1170.126 because his current commitment was for the offense of residential burglary (§§ 459, 460), which is a serious felony as defined by section 1192.7, subdivision (c)(18).
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). Birch filed a supplemental brief in which he raises two claims pertaining to the imposition of his original sentence. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S.
738 (Anders) and Wende, and considering the issues raised in Birch's supplemental brief, we affirm.
1 Unless otherwise specified, all subsequent statutory references are to the Penal Code. 2 II.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, a jury found Birch guilty of first degree burglary (§§ 459, 460) (count 1)
and resisting arrest (§ 148) (count 2). In addition, Birch was found to have suffered two strike priors (§§ 667, subds. (b)-(i), 1170.12), two serious felony priors (§§ 667, subd.
(a)(1)), and a prison prior (§§ 667.5, subd. (b)).2 At sentencing, the trial court sentenced Birch to an aggregate term of 35 years to life in prison. The court imposed an indeterminate sentence of 25 years to life on count 1 pursuant to section 667, subdivisions (b) through (i). As to count 2, the court imposed 271 days of local time to be served concurrently with the sentence on count 1. The court also imposed two determinate five-year sentences for the serious felony priors (§ 667, subd.
(a)(1)) to be served consecutively to the sentence on count 1. The court stayed execution of the sentence on the prison prior (§§ 667.5, subd. (b)).
In June 2014, Birch filed a petition for resentencing pursuant to section 1170.126.
In July 2014, the trial court entered an order denying Birch's petition. In its order, the court stated that Birch was ineligible for resentencing under section 1170.126 because his current commitment was for the serious felony offense of residential burglary (§§ 459, 460).
2 The record does not reflect whether these findings were made by a jury, the court, or by way of an admission. 3 III.
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.
After this court received counsel's brief, we gave Birch an opportunity to file a supplemental brief. Birch filed a brief in which he contends that the trial court in the underlying case erred in imposing two separate five-year serious felony prior enhancements (§ 667, subd. (a)(1)) because his prior convictions had not been brought and tried separately, as is required. Birch also appears to contend that the trial court in the underlying case imposed sentences for two prison priors (§ 667.5), and that the court erred in so sentencing him.
Even assuming that these claims relating to Birch's original sentence are cognizable in this appeal from his petition to recall, neither claim supports reversal of the judgment. The record in this case does not demonstrate that the trial court in the underlying case erred in imposing two separate five-year serious felony prior enhancements (§ 667, subd. (a)(1)), and the court in the underlying case imposed sentence on only a single prison prior (667.5, subd. (b)).3 3 As noted previously, the court stayed the execution of the sentence on the prison prior (§ 667.5). 4 A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues raised in Birch's supplemental brief, has disclosed no reasonably arguable appellate issue. Birch has been adequately represented by counsel on this appeal.
IV.
DISPOSITION
The order is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12