People v. Spencer CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN203697
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Judith D. McConnell, McINTYRE
Analysis
The trial court denied defendant's petition to recall his sentence under Penal Code section 1170.126, finding him ineligible because his robbery conviction was a violent felony. The Court of Appeal affirmed the denial, concluding the trial court correctly applied the statutory ineligibility provision.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence pursuant to Penal Code section 1170.126“We conclude the trial court correctly denied the petition to recall defendant's sentence. Defendant's conviction is for robbery, which is classified as a violent crime as defined in section 667.5, subdivision (c)(9), making him ineligible for recall of sentence.” | de novo | correct | agree with court The appellate court correctly identified that Penal Code section 1170.126, subdivision (b) explicitly excludes offenders whose commitment offense is a violent felony as defined in section 667.5, subdivision (c) from eligibility for sentence recall. Since robbery is listed as a violent felony in section 667.5, subdivision (c)(9), the trial court's determination of ineligibility was a correct application of the statute. The court's independent review under Wende/Anders confirmed no error in this legal conclusion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying potential issues and invites the court to independently review the record for error when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief pointing to potentially meritorious issues and allowing the court to independently review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record independently. The legal conclusion regarding ineligibility for sentence recall is supported by the plain language of Penal Code section 1170.126 and the classification of robbery as a violent felony under section 667.5.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Barry Spencer's Penal Code section 1170.126 petition to recall his 32-years-to-life three-strikes sentence, finding him ineligible because his commitment offense, robbery, is a violent felony. On appeal, appointed counsel filed a Wende brief, the defendant filed his own supplemental brief asking the court to alter his sentence, 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 for recall of sentence under Penal Code section 1170.126 on the ground that the commitment offense (robbery, § 211) is a violent felony rendering defendant ineligible“Defendant's conviction is for robbery, which is classified as a violent crime as defined in section 667.5, subdivision (c)(9), making him ineligible for recall of sentence.” | unclear | correct | agree with court Section 1170.126, subdivision (e)(1) limits resentencing eligibility to inmates serving an indeterminate three-strikes term for a current felony that is not a serious or violent felony as defined in sections 667.5, subdivision (c) or 1192.7, subdivision (c). Robbery is expressly listed as a violent felony in section 667.5, subdivision (c)(9) (and as a serious felony in section 1192.7, subdivision (c)(19)). Eligibility on these undisputed facts is a pure question of law, and the trial court's conclusion of ineligibility is compelled by the statute's text. The appellate court's refusal to exercise independent discretion to reduce the sentence is also correct; a reviewing court has no such free-standing power. |
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 arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Constitutional framework for appointed counsel's no-merit brief and the appellate court's duty to examine the record to protect an indigent defendant's right to counsel on first appeal.
The appellate opinion: sound — The opinion correctly identifies the dispositive statutory point: robbery is a violent felony under section 667.5, subdivision (c)(9), so defendant is categorically ineligible for recall under section 1170.126, subdivision (e)(1), and the court properly declined the defendant's invitation to exercise independent sentencing discretion. The opinion does not discuss whether Wende review is even required for an appeal from a postconviction order (an issue addressed in published Court of Appeal decisions such as People v. Serrano (2012) 211 Cal.App.4th 496), but conducting the fuller review was more protective of the defendant and does not affect the result.
Opinion
Filed 7/17/15 P. v. Spencer 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, D067318
Plaintiff and Respondent, v. (Super. Ct. No. SCN203697)
BARRY SPENCER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
In this criminal case, appointed counsel filed a brief presenting no argument for reversal but inviting the court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende), specifically requesting we examine the denial of defendant's request to recall his sentence pursuant to Penal Code section 1170.126.1 We gave defendant Barry Spencer an opportunity to file a brief on his own behalf, and he has done so. After independently reviewing the entire record for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL BACKGROUND
Defendant was convicted of one count of robbery in violation of section 211. It was also found he suffered two strike priors. (§§ 667, subds. (b)-(i) & 1170.12, subds.
(a)-(d).) On April 28, 2006, the court sentenced him to a total of 32 years to life in state prison: 25 years to life for the robbery conviction, two 1-year enhancements for the prison priors (§ 667.5, subd. (b)), and one 5-year enhancement for a prior serious felony conviction (§ 667, subd. (a)(1)).
On November 17, 2014, defendant filed a petition for recall of his sentence pursuant to section 1170.126. The court denied the petition, finding defendant ineligible because his commitment offense is a violent felony.
Defendant filed a timely notice of appeal. .
STATEMENT OF FACTS
Defendant states the facts of this case are not relevant to the appeal. We agree.
DISCUSSION
As we have indicated, appointed counsel has filed a brief summarizing the trial proceedings. He has not presented an argument for reversal, but requests we review the record for error in accordance with Wende, supra, 25 Cal.3d 436. In particular he 1 All further statutory references are to the Penal Code. 2 requests we examine the court's denial of the petition to recall his sentence. We have done so. We conclude the trial court correctly denied the petition to recall defendant's sentence. Defendant's conviction is for robbery, which is classified as a violent crime as defined in section 667.5, subdivision (c)(9), making him ineligible for recall of sentence.
We have also examined the entire record, including the sentencing hearing. We see no error in the questions presented and resolved by counsel and the court.
Finally, we note defendant has filed his own brief wherein he requests this court exercise its discretion to alter his sentence. Of course we are not at liberty to apply our independent discretion to reexamine and change defendant's sentence. However we wish to let counsel and defendant know we have read and considered defendant's thoughtful hand-printed brief.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Defendant has been represented by competent counsel on this appeal.
DISPOSITION
The order is affirmed.
BENKE, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J. 3
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12