People v. Thornton CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE334918
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- McINTYRE (author), Judith D. McConnell, O'Rourke
Analysis
The trial court denied William Cecil Thornton's petition to reduce his felony conviction for failing to register as a sex offender to a misdemeanor under Proposition 47. The Court of Appeal affirmed the denial, holding that the offense is not eligible for resentencing under Penal Code section 1170.18 and that other challenges to the plea were not reviewable without a certificate of probable cause.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to reduce conviction to a misdemeanor under Proposition 47 (Penal Code § 1170.18)“Here, the trial court properly denied Thornton's petition for recall of sentence because his offense of failing to register as a sex offender is not among the eligible offenses listed in subdivision (a) of section 1170.18.” | de novo | correct | agree with court agree with court |
Challenge to validity of plea (improper inducement, unconstitutionality, lack of jurisdiction)“Thornton's first three contentions each arose prior to his plea and effectively challenge the validity of his plea. Accordingly, they are not reviewable in the absence of a certificate of probable cause.” | unclear | not reached | agree with court agree with court |
Challenge to sex offender registration order based on intent equivalence“This challenge is not cognizable on this appeal of an order denying relief under Proposition 47.” | unclear | not reached | agree with court agree with court |
Authorities
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 makes certain drug- and theft-related offenses misdemeanors and created a resentencing provision at section 1170.18 for eligible defendants.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel must review the record for error when presenting no argument for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel must review the record for error when presenting no argument for reversal.
- relied: People v. Stubbs (1998) 61 Cal.App.4th 243 — Challenges to the validity of a plea are not reviewable on appeal in the absence of a certificate of probable cause.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court denied William Thornton's in propria persona petition under Penal Code sections 17 and 1170.18 (Proposition 47) to reduce his felony conviction for failing to register as a sex offender to a misdemeanor. On a Wende appeal with a supplemental pro se brief, the Court of Appeal held the plea-related and registration-related contentions were not cognizable, held failure to register is not a Proposition 47 eligible offense and section 17(b) relief was unavailable, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall and resentencing under Penal Code section 1170.18 (Proposition 47) because failure to register as a sex offender is not an eligible offense“Here, the trial court properly denied Thornton's petition for recall of sentence because his offense of failing to register as a sex offender is not among the eligible offenses listed in subdivision (a) of section 1170.18.” | unclear | correct | agree with court The opinion does not state a standard of review, but eligibility under section 1170.18 is a question of statutory interpretation reviewed de novo. Section 1170.18, subdivision (a) enumerates specific drug and theft offenses (Health & Safety Code sections 11350, 11357, 11377 and Penal Code sections 459.5, 473, 476a, 490.2, 496, 666); failure to register under section 290 is not among them. The court correctly relied on Rivera's description of the measure's scope. |
Denial of request to reduce the felony to a misdemeanor under Penal Code section 17, subdivision (b)“Finally, under certain limited circumstances, a trial court may reduce a wobbler to a misdemeanor under subdivision (b) of section 17. Thornton, however, is not eligible for such treatment.” | unclear | correct | agree with court The court states the conclusion without explaining why. The result is nonetheless correct on the facts recited: section 17(b) applies only to wobblers and only where the court imposed a punishment other than state prison or granted probation; Thornton was sentenced to six years in prison on a felony failure-to-register count, so no section 17(b) avenue was open. The reasoning is thin but the outcome follows from the statute. |
Refusal to reach contentions that the plea was improperly induced, the plea and sentence were unconstitutional, and the court lacked jurisdiction to order registration, as challenges to the validity of the plea requiring a certificate of probable cause“Thornton's first three contentions each arose prior to his plea and effectively challenge the validity of his plea. Accordingly, they are not reviewable in the absence of a certificate of probable cause.” | de novo | not reached | agree with court The result is correct: issues going to the validity of the 2013 plea and judgment cannot be raised in an appeal from a 2015 post-judgment order denying Proposition 47 relief. The court's stated rationale (lack of a certificate of probable cause under section 1237.5 and Stubbs) is somewhat imprecise, because section 1237.5 governs appeals from the judgment after a plea, whereas this is an appeal from a later post-judgment order; the more direct ground is that the judgment is long final and not before the court. The imprecision does not affect the outcome. |
Refusal to reach the contention that Tennessee sexual battery lacks an intent element equivalent to the California offense, treated as a non-cognizable challenge to the registration order“This challenge is not cognizable on this appeal of an order denying relief under Proposition 47.” | de novo | not reached | agree with court The registration order was part of the 2013 judgment on the plea; an appeal from the denial of a Proposition 47 petition does not reopen the underlying judgment or the equivalence determination for the out-of-state conviction. Declining to reach the issue was correct. |
Wende/Anders independent review of the record finding no arguable issues“Based on that independent review, we have determined there are no arguable issues on appeal.” | de novo | correct | agree with court The court followed Wende and Anders and addressed the defendant's supplemental contentions. It did not discuss whether Wende review is even required in an appeal from a post-conviction order (see People v. Serrano (2012) 211 Cal.App.4th 496), but because it conducted the review and considered the pro se arguments anyway, the omission did not prejudice the defendant. |
Authorities
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 reduces certain enumerated drug- and theft-related offenses to misdemeanors and section 1170.18 permits petitions for recall of sentence only for those designated felonies.
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed 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 — Constitutional framework for appointed counsel's no-merit brief and the appellate court's independent review.
- relied: People v. Stubbs (1998) 61 Cal.App.4th 243 — Contentions that arose before and go to the validity of a guilty plea are not reviewable on appeal absent a certificate of probable cause under section 1237.5.
The appellate opinion: sound with gaps — The court reached the correct result: failure to register is plainly outside the offenses enumerated in section 1170.18, subdivision (a), and the defendant's remaining contentions attacked a final judgment not before the court. The opinion skips explanation of why section 17(b) is unavailable, frames the plea-validity bar imprecisely in terms of a certificate of probable cause rather than the finality of the judgment, and does not address whether Wende review applies to post-conviction appeals, though none of these gaps affects the disposition.
Opinion
Filed 3/1/16 P. v. Thornton 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, D068987
Plaintiff and Respondent, (Super. Ct. No. SCE334918) v.
WILLIAM CECIL THORNTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1987, William Cecil Thornton was convicted in Tennessee of sexual battery, triggering a duty to register as a sex offender if he lived in California. In 2013, a peace officer stopped Thornton and Thornton admitted that he had failed to update his registration. Thornton pleaded guilty for failing to register as a sex offender and admitted a strike prior allegation and two prison priors. The trial court ordered him to register as a sex offender. The trial court sentenced him to six years in prison, consisting of the base term of two years, doubled as a result of the strike and one year for each prison prior.
Thornton later filed a petition, in propria persona, to reduce his conviction to a misdemeanor under Penal Code section 17 and Proposition 47, the Safe Neighborhoods and Schools Act, Penal Code section 1170.18. (Undesignated statutory references are to the Penal Code.) (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).)
The prosecution opposed the petition. The trial court denied the petition and Thornton timely appealed.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. We also granted Thornton permission to file a brief on his own behalf. Thornton did so, contending: (1) the trial court improperly induced his plea; (2) his plea and sentence were unconstitutional; (3) the court lacked jurisdiction to require him to register as a sex offender; (4) the intent required for sexual battery in Tennessee is not equivalent to the intent required for this crime in California; and (5) the trial court erred when it declined to reduce his conviction to a misdemeanor.
Thornton's first three contentions each arose prior to his plea and effectively challenge the validity of his plea. Accordingly, they are not reviewable in the absence of 2 a certificate of probable cause. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
Thornton's contention pertaining to the intent required for sexual battery amounts to a challenge to the court's order requiring him to register as a sex offender. This challenge is not cognizable on this appeal of an order denying relief under Proposition 47.
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Rivera, supra, 233 Cal.App.4th at p. 1091.)
Proposition 47 created a resentencing provision, codified at section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce the felony to a misdemeanor. (Rivera, at p. 1092.)
Here, the trial court properly denied Thornton's petition for recall of sentence because his offense of failing to register as a sex offender is not among the eligible offenses listed in subdivision (a) of section 1170.18. Finally, under certain limited circumstances, a trial court may reduce a wobbler to a misdemeanor under subdivision (b) of section 17. Thornton, however, is not eligible for such treatment. (See, § 17, subd.
(b).)
In addition to considering Thornton's submission, we examined the entire record to determine if there are any other arguable issues on appeal. Based on that independent review, we have determined there are no arguable issues on appeal. Competent counsel has represented Thornton on this appeal.
3 DISPOSITION
The order is affirmed.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Rivera H041742 · 2015-01-29
- People v. Stubbs H016362 · 1998-02-03
- People v. Wende Crim. 20851 · 1979-10-12