People v. Trader CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD253344, SCD251764, SCD250682
- Trial judge
- Robert F. O'Neill
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald
Analysis
The trial court denied Trader's motion to modify his executed sentence to include mandatory supervision, finding it lacked jurisdiction. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to modify executed sentence under Penal Code section 1170, subdivision (h)(5)(A)“The trial court denied the motion, finding the court lacked jurisdiction to modify an executed sentence.” | unclear | not reached | unsure The appellate court did not explicitly apply a standard of review to the trial court's jurisdictional determination. Instead, the court conducted an independent review of the entire record as mandated by People v. Wende and Anders v. California, concluding that no reasonably arguable issue for reversal existed. Because the court found no error in the record, it affirmed the judgment without specifically analyzing the trial court's jurisdictional ruling on the merits. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record to identify any reasonably arguable issues for reversal when counsel cannot find any.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potentially arguable issues while stating they are not reasonably arguable, allowing the court to review the record independently.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework, correctly identifying the lack of reasonably arguable issues and affirming the judgment. However, it is a 'sound with gaps' opinion because it fails to address the specific legal question of whether the trial court lacked jurisdiction to modify an executed sentence, relying solely on the absence of arguable issues rather than substantive legal analysis.
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Trader, after guilty pleas in three cases, to a stipulated 11-year-four-month term in local custody with no mandatory supervision, and seven months later denied his motion to modify the executed sentence to add a period of mandatory supervision, finding it lacked jurisdiction. On appeal, counsel filed a Wende brief, Trader filed no supplemental brief, and the Court of Appeal reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of post-sentencing motion to modify an executed sentence to order a portion served on mandatory supervision under Penal Code section 1170, subdivision (h)(5)(A), for lack of jurisdiction“The trial court denied the motion, finding the court lacked jurisdiction to modify an executed sentence.” | unclear | correct | agree with court Once a sentence has been executed and the statutory window for recall under Penal Code section 1170, subdivision (d) has passed, a trial court generally lacks jurisdiction to modify the sentence absent an unauthorized sentence or other statutory authority; a motion filed seven months after sentencing on a stipulated term falls outside any such authority, so the denial was proper. The opinion does not articulate a standard of review because it is a Wende review, and it does not cite the substantive jurisdictional authority, but the result is consistent with settled law. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court 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 should refer the court to anything in the record that might arguably support the appeal.
- missed: People v. Karaman (1992) 4 Cal.4th 335 — A trial court loses jurisdiction to modify a sentence once execution of the sentence has begun, subject to limited statutory exceptions.
- missed: People v. Turrin (2009) 176 Cal.App.4th 1200 — A trial court lacks jurisdiction to modify an executed sentence outside Penal Code section 1170, subdivision (d) or correction of an unauthorized sentence, and an order denying such a motion is not appealable, requiring dismissal rather than affirmance.
The appellate opinion: sound with gaps — The court properly conducted an independent Wende/Anders review and reached a defensible result, since the trial court plainly had no jurisdiction to modify a stipulated, executed sentence seven months after imposition. The opinion, however, does not address whether an order denying a motion the trial court had no jurisdiction to grant is appealable at all, an issue under which the appeal arguably should have been dismissed rather than the judgment affirmed, and it cites no substantive authority on the jurisdictional question.
Opinion
Filed 2/26/16 P. v. Trader 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, D068955
Plaintiff and Respondent, v. (Super. Ct. No. SCD253344, SCD251764, SCD250682) JOSEPH TRADER, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Ashley N. Johndro for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
This case involves convictions by guilty pleas in three separate cases. In case SCD251764 Joseph Trader pleaded guilty to one count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), with a Penal Code section 12022.1 enhancement for committing the crime while out on bail, and two Health & Safety Code section 11370.2, subdivision (c) violations for previous felony convictions. As part of the plea agreement the remaining charges and allegations were dismissed and Trader stipulated to a 10-year sentence.
In case SCD250682 Trader pleaded guilty to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). The remaining counts and allegations were dismissed and Trader stipulated to a consecutive eight-month term.
In case CD253344 Trader pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378). Trader stipulated to a consecutive eight-month term for this offense.
The trial court sentenced Trader to an 11-year four-month term in local custody.
The court did not suspend any part of the sentence and did not order any period of mandatory supervision.
Seven months after sentencing Trader filed a motion to modify his sentence and to order a portion of the sentence to be served in mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(A)). The trial court denied the motion, finding the court lacked jurisdiction to modify an executed sentence. Trader filed a notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she has not been able to identify any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende.
2 We offered Trader the opportunity to file his own brief on appeal, however, he has not responded.1
DISCUSSION
As we have noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436 requesting the court to review the record for error. In order to assist the court in its review, as mandated by Anders v California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible, but not reasonably arguable issue for reversal on appeal:
Whether the trial court had jurisdiction to modify the sentence, which had been executed, and in which no portion had been suspended under Penal Code section 1170, subdivision (h)(5)(A).
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not been able to identify any reasonable arguable issue for reversal on appeal. Competent counsel has represented Trader on this appeal.
1 The convictions in this case arise out of guilty pleas to two counts of possession of methamphetamine for sale, and one count of transportation of methamphetamine. The sentences for each count was stipulated by the parties. We find it unnecessary to discuss the "facts" of the offense in this opinion. 3 DISPOSITION The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12