People v. Colmenero CA4/1
- Proceeding
- appeal from postjudgment orders
- Trial court
- Superior Court of San Diego County · No. SCD114230;HC16791
- Trial judges
- Amalia L. Meza; David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Richard D. Huffman, Sr., Joan K. Irion
Analysis
The trial court denied Colmenero's petition for writ of habeas corpus as untimely and on the merits, and denied his petition for recall of sentence under Penal Code section 1170.126 due to a prior sexually violent offense. The Court of Appeal affirmed the orders, finding no reasonably arguable issues on independent review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for writ of habeas corpus“The court concluded his contention that he was outside the spirit of the three strikes law was untimely. It further concluded his prior convictions arose out of separate acts and therefore he had been correctly sentenced based on his two prior strike convictions.” | unclear | not reached | unsure The appellate court did not independently analyze the trial court's reasoning regarding timeliness or the factual determination of separate acts. Instead, the court relied on the Wende/Anders procedure, stating that a review of the record disclosed no reasonably arguable appellate issues. Because the opinion does not apply a specific standard of review (such as abuse of discretion or de novo) to the trial court's specific rulings, the standard is unclear, and the appellate court effectively affirmed by finding no error to correct. |
Denial of petition for recall of sentence under Penal Code section 1170.126“On October 7, the trial court issued an order denying his petition, finding he was ineligible for resentencing because he had a prior conviction for a sexually violent offense.” | unclear | not reached | unsure The appellate court did not address the specific statutory interpretation of section 1170.126 or the trial court's application of the 'sexually violent offense' exclusion. Counsel identified these as 'possible, but not arguable' issues, and the court's independent review found no reasonably arguable issues. Consequently, the court affirmed the denial without applying a specific standard of review to the trial court's statutory interpretation. |
Authorities
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Establishes the 'spirit of the law' test for third-strike sentencing, which Colmenero invoked in his habeas petition.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying arguable issues and conduct an independent review of the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for cases where appointed counsel finds no arguable issues. However, it provides no substantive legal analysis of the specific statutory or constitutional arguments raised in the brief, relying entirely on the negative finding of 'no reasonably arguable issues.'
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Colmenero's petition for writ of habeas corpus seeking Romero relief from his 1996 three strikes sentence (finding the claim untimely and the two prior strikes arose from separate acts) and denied his Penal Code section 1170.126 recall petition (finding him ineligible because his 1978 rape-in-concert conviction is a sexually violent offense). On appeal, appointed counsel filed a Wende brief, Colmenero filed no supplemental brief, and the Court of Appeal conducted an independent record review, found no arguable issues, and affirmed both orders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence under Penal Code section 1170.126 on the ground that defendant was ineligible because of a prior conviction for a sexually violent offense (rape in concert, § 264.1).“On October 7, the trial court issued an order denying his petition, finding he was ineligible for resentencing because he had a prior conviction for a 2 sexually violent offense.” | unclear | correct | agree with court Section 1170.126, subdivision (e)(3) incorporates section 667, subdivision (e)(2)(C)(iv)(I), which disqualifies inmates with a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b); that definition expressly lists section 264.1. Rape in concert therefore renders Colmenero ineligible regardless of the kidnapping conviction, and the ex post facto and juvenile-status issues flagged by counsel are not arguable because the disqualifier operates only to withhold a discretionary ameliorative benefit, not to increase punishment for the 1978 offense. The opinion does not spell out this analysis, but the result follows from the statutory text. |
Denial of petition for writ of habeas corpus seeking recall of the 1996 three strikes sentence under Romero, on grounds the claim was untimely and the two prior strikes arose from separate acts.“The court concluded his contention that he was outside the spirit of the three strikes law was untimely. It further concluded his prior convictions arose out of separate acts and therefore he had been correctly sentenced based on his two prior strike convictions.” | unclear | correct | agree with court The Romero claim was available and in fact litigated at the 1996 sentencing and on the 1997 direct appeal, so a habeas petition raising it eighteen years later was both untimely and barred as a matter previously raised and rejected. The result is defensible; however, under In re Clark an order denying a habeas petition is not appealable by the petitioner, so the Court of Appeal arguably should have dismissed that portion of the appeal rather than affirming on the merits. That procedural point does not change the practical outcome. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court while identifying anything in the record that might arguably support the appeal.
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — A trial court has discretion under Penal Code section 1385 to strike prior strike convictions in furtherance of justice.
- missed: In re Clark (1993) 5 Cal.4th 750 — An order denying a petition for writ of habeas corpus is not appealable by the petitioner; the remedy is a new petition in a higher court. The court affirmed the habeas denial on the merits without addressing appealability.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende/Anders independent review is not constitutionally required in appeals from postconviction orders where there is no constitutional right to counsel; the court conducted Wende review in this postjudgment appeal without addressing whether it was required.
The appellate opinion: sound with gaps — The affirmance of the section 1170.126 denial is plainly correct because rape in concert under section 264.1 is a listed sexually violent offense disqualifying the inmate from resentencing, and the Romero habeas claim was untimely and previously adjudicated. The opinion is a bare Wende disposition that does not explain its reasoning, does not address the nonappealability of the habeas denial under In re Clark, and does not acknowledge Serrano's holding on the applicability of Wende review to postjudgment orders.
Opinion
Filed 1/12/16 P. v. Colmenero 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, D067066
Plaintiff and Respondent, v. (Super. Ct. No. SCD114230; HC16791) GILBERT COLMENERO, Defendant and Appellant.
APPEAL from postjudgment orders of the Superior Court of San Diego County, David J. Danielsen and Amalia L. Meza, Judges. Affirmed.
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Gilbert Colmenero appeals orders denying his petition for writ of habeas corpus and denying his petition for recall of his sentence pursuant to Penal Code section 1170.126.1 1 All statutory references are to the Penal Code unless otherwise specified. FACTUAL AND PROCEDURAL BACKGROUND In 1978, Colmenero pleaded guilty to charges of kidnapping (§ 207), rape in concert (§ 264.1), and robbery (§ 211) and admitted the truth of a section 12022.5 allegation. He was sentenced to prison for 10 years 4 months.
In 1996, Colmenero was convicted of being a felon in possession of a firearm (former § 12021, subd. (a)) and not registering as a sex offender (former § 290, subd.
(a)(2)). The trial court denied his motion to dismiss his prior strike offenses and sentenced him under the three strikes law to an indeterminate term of 25 years to life for the first count and a concurrent six-month term for the second count. On appeal, we affirmed his sentence. (People v. Colmenero (Apr. 8, 1997, D026568) [nonpub. opn.].)
On September 30, 2014, Colmenero filed a petition for writ of habeas corpus, requesting a recall of his 1996 sentence pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497. He subsequently filed two substantively identical petitions for writ of habeas corpus. On November 12, considering all three petitions as one, the trial court issued an order denying the petition for writ of habeas corpus. The court concluded his contention that he was outside the spirit of the three strikes law was untimely. It further concluded his prior convictions arose out of separate acts and therefore he had been correctly sentenced based on his two prior strike convictions.
On September 22, 2014, Colmenero filed a petition for recall of his sentence pursuant to section 1170.126. On October 7, the trial court issued an order denying his petition, finding he was ineligible for resentencing because he had a prior conviction for a 2 sexually violent offense. Colmenero timely filed multiple notices of appeal challenging the above orders.
DISCUSSION
Colmenero's appointed counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal of the judgment, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel identifies the following possible, but not arguable, issues for our review: (1) is Colmenero eligible for resentencing under section 1170.126, subdivision (e)(2); (2) does his prior section 264.1 (i.e., rape in concert) conviction preclude his eligibility for resentencing under section 1170.126, subdivision (e)(3); (3) does his section 207 (i.e., kidnapping) conviction preclude him from resentencing under section 1170.126; (4) have the elements of a section 264.1 offense changed since 1978 so it would violate the ex post facto clause to find him ineligible for resentencing because of his prior section 264.1 conviction; (5)
have the elements of a section 207 offense changed since 1978 so it would violate the ex post facto clause to find him ineligible for resentencing because of his section 207 conviction; (6) is retroactive application of Welfare and Institutions Code section 6600 to his 1978 conviction a violation of the ex post facto clause; (7) does his juvenile status at the time of his 1978 offense preclude his disqualification based on that offense; (8)
should the trial court have considered all three of his petitions for writ of habeas corpus as a single writ; (9) did he timely file his petition for writ of habeas corpus regarding his three strikes claim; and (10) did the trial court correctly conclude his prior convictions for 3 kidnapping and rape in concert did not arise out of the same occurrence and were therefore two separate strikes?
We granted Colmenero permission to file a supplemental brief on his own behalf, but he has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Colmenero has been competently represented by counsel on this appeal.
DISPOSITION
The orders are affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Superior Court (Romero) S045097 · 1996-06-20
- People v. Wende Crim. 20851 · 1979-10-12