People v. Rogers CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD106382
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Cynthia Aaron
Analysis
The trial court denied Rogers's petition to recall his 1994 burglary sentences under Proposition 47 (Pen. Code, § 1170.18), treating his habeas corpus petition as such. The Court of Appeal affirmed the denial, finding no reasonably arguable issues on appeal after a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall sentences under Penal Code section 1170.18“Our review has not disclosed any reasonably arguable issues for reversal on appeal.” | de novo | correct | agree with court The court correctly applied the standard of review for a Proposition 47 resentencing petition, which is de novo. The trial court's denial was proper because the defendant's 1994 convictions for first-degree residential burglary are not eligible for resentencing under Proposition 47, which only applies to offenses committed on or after November 4, 2014. The appellate court's Wende/Anders review confirmed no error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no arguable issues are identified, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal when no arguable issues exist, requiring a brief identifying potential issues and court review.
The appellate opinion: sound — The opinion is procedurally sound as it correctly identifies the applicable standard of review (de novo) for the Proposition 47 petition and correctly notes that the 1994 convictions are ineligible for resentencing. It appropriately handles the defendant's supplemental brief by directing him to the proper remedy (habeas corpus in the trial court) rather than addressing trial errors on appeal from a resentencing order.
How this analysis was made · dispute it
unusual dispositionThe trial court treated Rogers's 2015 habeas petition as a petition to recall his 1994 first degree residential burglary sentences under Penal Code section 1170.18 (Proposition 47) and denied it. On appeal, counsel filed a Wende brief, Rogers's supplemental brief attacked only his 1994 convictions, and the Court of Appeal, finding no arguable issues after independent review, affirmed the denial order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's recharacterization of Rogers's petition for writ of habeas corpus as a petition to recall sentence under section 1170.18“The trial court deemed the petition for writ of habeas corpus to be a petition to recall the sentences under section 1170.18.” | unclear | correct | agree with court The habeas petition itself sought Proposition 47 recall relief, so construing it as a section 1170.18 petition gave Rogers the procedure he asked for; the appellate court identified this as a possible but not arguable issue under Wende/Anders and found no error. Nothing in the opinion suggests Rogers was prejudiced by the recharacterization, and the court properly noted that any challenge to the 1994 convictions must be brought by habeas petition in the superior court. |
Denial of petition to recall first degree residential burglary sentences under Proposition 47 (section 1170.18)“Our review has not disclosed any reasonably arguable issues for reversal on appeal.” | unclear | correct | agree with court Section 1170.18 permits resentencing only for the specific felonies reduced to misdemeanors by Proposition 47; first degree residential burglary under section 459 is not among them, so Rogers was ineligible as a matter of law and denial was required. Although the opinion does not spell out this statutory analysis, the result is compelled by the text of section 1170.18, and the Wende review found no arguable issue. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should file a brief referring to anything in the record that might arguably support the appeal, and the court then decides whether the appeal is wholly frivolous.
The appellate opinion: sound with gaps — The result is plainly right because first degree residential burglary is not an offense covered by section 1170.18, and the court correctly redirected Rogers's collateral attack on his 1994 convictions to a superior court habeas petition. The opinion, however, never states the statutory basis for ineligibility and does not address whether Wende review even applies to a postconviction Proposition 47 appeal (see People v. Serrano (2012) 211 Cal.App.4th 496), simply conducting the review without discussion.
Opinion
Filed 11/12/15 P. v. Rogers 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, D068182
Plaintiff and Respondent, v. (Super. Ct. No. SCD106382)
TYRONE ROGERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Laura R. Sheppard for Defendant and Appellant.
No appearance for Respondent.
In 1994, Tyrone Rogers was convicted by a jury of two counts of first degree residential burglary (Pen. Code,1 § 459). He was ultimately sentenced to a term of four years in prison.
1 All further statutory references are to the Penal Code unless otherwise specified. In 2015, while serving a prison sentence for a different offense, Rogers filed a petition for writ of habeas corpus in this case, seeking among other relief, the recall of his burglary sentences pursuant to Proposition 47 (§ 1170.18). The trial court deemed the petition for writ of habeas corpus to be a petition to recall the sentences under section 1170.18. The court entered a written order denying the petition to recall the sentences.
Rogers filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has been unable to identify any reasonable arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Rogers the opportunity to file his own brief on appeal.2 Rogers has filed a supplemental brief, in which he seeks habeas relief from his 1994 convictions. His brief does not address any issue regarding the denial of his Proposition 47 petition. We will discuss Rogers's brief further below.
DISCUSSION
As we have noted, counsel has asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. To assist the court in its review of the record, counsel has indicated the following possible, but not arguable issues, consistent with the requirements of Anders v. California (1967 386 U.S. 738 (Anders):
1. Whether the trial court erred in treating Rogers's petition for writ of habeas corpus as a petition to recall the sentences under section 1170.18?
2 The facts underlying the 1994 conviction are not relevant to any possible issue on this appeal. Accordingly we will not set forth a statement of facts. 2 2. Whether the trial court abused its discretion in denying relief under section 1170.18?
3. Whether Rogers's convictions for first degree residential burglary are subject to resentencing under Proposition 47?
In his supplemental brief, Rogers claims various errors occurred in his 1994 trial.
The brief appears to be a petition for writ of habeas corpus relief. Rogers has not filed this petition for writ of habeas corpus in the trial court, nor has he filed an original proceeding in this court. His remedy, if any, regarding his 1994 conviction lies in a petition for writ of habeas corpus filed in the San Diego Superior Court.
We have reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. Our review has not disclosed any reasonably arguable issues for reversal on appeal. Competent counsel has represented Rogers on this appeal.
DISPOSITION
The order denying the petition to recall the sentences under section 1170.18 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12