People v. McNeely CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD194654
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Judith L. Haller, Joan K. Irion
Analysis
The trial court denied defendant's petition for resentencing under Proposition 36, finding the petition untimely and that his first-degree burglary conviction constituted a 'serious felony' making him ineligible for relief. The Court of Appeal affirmed the denial, determining that the conviction was for a serious felony under Penal Code section 1192.7, subd. (c)(18), rendering the timeliness issue moot.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Proposition 36 (Pen. Code, § 1170.126) based on ineligibility due to the offense being a 'serious felony'.“we conclude the court did not err when it found defendant was ineligible for resentencing under section 1170.126, subdivision (e)(1) because his commitment offense for his indeterminate sentence was a "serious felony" as defined in subdivision (c)(18) of section 1192.7.” | de novo | correct | agree with court The appellate court correctly applied the statutory definition of 'serious felony' in Penal Code section 1192.7, subdivision (c)(18), which explicitly includes first-degree burglary. Since the record established the burglary occurred in an inhabited dwelling (a hotel room), the conviction was for a serious felony, and the defendant was statutorily ineligible for resentencing under section 1170.126, subdivision (e)(1). |
Finding that the petition for resentencing was untimely.“Because the defendant was ineligible for resentencing under subdivision (e)(1) of section 1170.126, we need not decide in this appeal whether defendant's petition was timely.” | unclear | not reached | agree with court The appellate court declined to review the trial court's timeliness determination because it resolved the appeal on the independent ground of statutory ineligibility. This is a permissible procedural disposition that renders the timeliness issue moot. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed counsel to review the record for reasonably arguable issues when a defendant is represented by counsel who finds no arguable issues (Wende review). The court relied on this to conduct its independent review of the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any possible, though not arguable, issues to assist the court in its independent review. The court relied on this to justify the briefing format and its subsequent independent review.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory definition of 'serious felony' to the facts of the case, establishing that first-degree burglary is categorically ineligible for Proposition 36 relief. The court appropriately resolves the appeal on this dispositive ground, rendering the timeliness issue moot without needing to address it.
How this analysis was made · dispute it
unusual dispositionThe trial court denied McNeely's pro per Penal Code section 1170.126 (Proposition 36) petition for resentencing, finding it untimely and finding him ineligible because his commitment offense, first degree burglary, is a serious felony under section 1192.7, subdivision (c)(18). On a Wende appeal with no supplemental brief from the defendant, the Court of Appeal independently reviewed the record, agreed that first degree burglary is a disqualifying serious felony, declined to reach timeliness, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.126 petition on the ground defendant was ineligible under subdivision (e)(1) because his commitment offense (first degree burglary) is a serious felony listed in section 1192.7, subdivision (c)(18)“we conclude the court did not err when it found defendant was ineligible for resentencing under section 1170.126, subdivision (e)(1) because his commitment offense for his indeterminate sentence was a "serious felony" as defined in subdivision (c)(18) of section 1192.7” | unclear | correct | agree with court Section 1170.126, subdivision (e)(1) makes an inmate eligible only if the indeterminate term was not imposed for a felony listed in section 667.5, subdivision (c) or section 1192.7, subdivision (c). Section 1192.7, subdivision (c)(18) lists 'any burglary of the first degree.' The jury found defendant guilty of first degree burglary under sections 459 and 460, so he is categorically ineligible; the court's additional reliance on the probation report to show the hotel room was an inhabited dwelling was unnecessary but harmless since the jury verdict itself establishes the degree. The opinion did not articulate a standard of review, but eligibility on these facts is a pure question of statutory application and the result is plainly correct. |
Finding that the petition, filed November 17, 2014, was untimely under section 1170.126, subdivision (b)“Because the defendant was ineligible for resentencing under subdivision (e)(1) of section 1170.126, we need not decide in this appeal whether defendant's petition was timely.” | unclear | not reached | agree with court The appellate court properly declined to reach timeliness because the ineligibility finding independently supports the denial; whether good cause could excuse a filing ten days after the two-year window was not examined and need not have been. |
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 for reasonably arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende/Anders independent review procedures are constitutionally required only on a first appeal of right from a criminal conviction and do not apply to appeals from postconviction orders such as denials of resentencing petitions; the court nonetheless conducted a full Wende review here, which could only benefit defendant and does not affect the result.
The appellate opinion: sound — The opinion correctly applies section 1170.126, subdivision (e)(1) and section 1192.7, subdivision (c)(18): a first degree burglary conviction is a listed serious felony and categorically disqualifies the inmate, so affirmance was required regardless of timeliness. It did not address whether Wende review applies to a postconviction resentencing appeal (People v. Serrano) and contains a minor citation slip (section 1192 for 1192.7), but neither affects the plainly correct result.
Opinion
Filed 7/14/15 P. v. McNeely 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, D067359
Plaintiff and Respondent, v. (Super. Ct. No. SCD194654)
DONALD RICHARD McNEELY, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury in March 2006 found defendant Donald Richard McNeely guilty of first degree burglary (Pen. Code, §§ 459 & 460).1 Defendant waived jury trial and admitted 1 All further statutory references are to the Penal Code. as true two serious felony priors, one prison prior and 11 strike priors. The court sentenced defendant to a total indeterminate term of 38 years eight months to life.
On November 17, 2014, defendant as a pro per filed a petition for resentencing "under Proposition 36." Section 1170.126, added by Proposition 36 and effective November 7, 2012, permits a person serving an indeterminate term of imprisonment under the three strikes law to file a petition for recall of sentence and to request resentencing. The court denied the petition, finding it was untimely. The court also found defendant's first degree burglary conviction was a "serious felony" as defined by section 1192, subdivision (c)(18) and thus he was not eligible for the relief afforded by section 1170.126, subdivision (e)(1).
Defendant timely appealed from the order denying his petition. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel filed a brief on behalf of defendant setting forth the facts of the case and requesting this court review the entire record. In addition, pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel set forth the following possible, but not arguable, issues to assist us in conducting our Wende review: (1) whether the court erred in finding defendant's petition was untimely; and (2) whether the court erred in finding defendant's commitment offense for his indeterminate sentence was a "serious felony" as defined in section 1192.7, subdivision (c)(18) and thus did not qualify for the relief provided by section 1170.126.
On our own motion, we gave defendant 30 days to file a brief on his behalf with this court. He did not file any supplemental brief. We now affirm the order denying his petition.
2 FACTUAL OVERVIEW2
On October 24, 2005, victim Badr Bakry notified the police that sometime between 8:00 a.m. and 2:45 p.m. somebody had entered his hotel room and taken his laptop computer, digital camera and digital tape recorder, all of which were in a black bag that was also taken. The following day, victim Courtney Galbreath notified the police that while attending a seminar at the same hotel, someone had taken her company laptop computer and its case, which contained her wallet, identification and credit cards.
A few days later, an employee from a computer repair business contacted the police to report that a man later identified as defendant brought in a laptop that was password protected. The man wanted the employee to "unlock" the computer. The employee noticed the laptop computer was registered to Bakry. The employee called Bakry, and he confirmed his laptop had been stolen from his hotel room a few days earlier.
When the police arrived, they admonished defendant and he waived his rights.
When confronted about the laptop, defendant claimed to have recently purchased it at auction on the Internet for $340. When the police logged on to a store computer to obtain the record of the purchase, defendant claimed he could not remember his password for the auction site.
On further questioning by the police, defendant's story changed. He next claimed he met someone three days earlier in Mission Valley and purchased the laptop for $320.
2 This summary is derived from the probation report prepared in connection with defendant's March 2006 conviction for first degree burglary. 3 Defendant stated he could not remember the name of the person whom he bought it from.
Defendant then stated he purchased two computers and a brief case for $500 from an individual that defendant knew was a thief. Although defendant admitted to the police that his circumstances "looked bad," he suggested the officers arrest the individual who sold defendant the items.
When officers searched defendant's car they found a digital camera and checkbooks with Bakry's name on them. They also found a laptop computer that was later determined to belong to Galbreath. Defendant was arrested. At the time of his arrest, defendant was a parolee at large.
DISCUSSION
Based on our independent review of the entire record, we conclude the court did not err when it found defendant was ineligible for resentencing under section 1170.126, subdivision (e)(1) because his commitment offense for his indeterminate sentence was a "serious felony" as defined in subdivision (c)(18) of section 1192.7. Subdivision (c) of section 1192.7 states a "serious felony" includes burglary "of the first degree."
Here, the record clearly shows defendant's burglary conviction involved an inhabited dwelling, namely a hotel room, and thus was a burglary in the first degree within the meaning of section 460. Because the defendant was ineligible for resentencing under subdivision (e)(1) of section 1170.126, we need not decide in this appeal whether defendant's petition was timely.
Finally, a review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 has disclosed no other reasonably arguable appellate issue.
4 DISPOSITION
The court's order denying defendant's petition brought under Proposition 36 is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12