People v. Johnson CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD237199
- Trial judge
- Daniel F. Link
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Alex C. McDonald, Cynthia Aaron
Analysis
The trial court denied Johnson's petition to recall his felony sentence for second-degree burglary and resentence him to a misdemeanor under Penal Code section 1170.18, ruling that the petition failed to state facts sufficient to make a prima facie showing of eligibility. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende and Anders v. California, finding no reasonably arguable appellate issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall sentence and resentence to misdemeanor under Penal Code section 1170.18“On November 19, 2015, the court denied Johnson's petition without prejudice, ruling in relevant part that the petition 'fails to state facts sufficient to make a prima facie showing that relief should be granted.'” | de novo | correct | agree with court The appellate court affirmed the denial, finding no reasonably arguable appellate issues after independent review. The trial court's determination that the petition failed to make a prima facie showing was supported by the record, as Johnson's convictions for second-degree burglary (Penal Code section 459) are not among the offenses reclassified as misdemeanors by Proposition 47 (which primarily targeted theft-related offenses under sections 484, 488, 490, 490.5, 503, 602, and 659). Therefore, Johnson was statutorily ineligible for relief under section 1170.18, making the trial court's denial correct. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error and file a brief identifying any reasonably arguable issues, or state that none exist, in cases where counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who believes an appeal is wholly frivolous, requiring a brief identifying any arguable issues and inviting the client to file a supplemental brief.
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Explains that Proposition 47 makes certain theft-related offenses misdemeanors unless committed by ineligible defendants, and clarifies the effective date of the proposition.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing appeals where appointed counsel finds no arguable issues. The court performed the required independent review of the record and correctly identified that no reasonably arguable issues existed because the underlying offense (second-degree burglary) is not eligible for resentencing under Proposition 47.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied, without prejudice, Robert Johnson III's Penal Code section 1170.18 (Proposition 47) petition to recall his felony second degree burglary sentence and resentence him to a misdemeanor, ruling the one-page form petition failed to state facts sufficient to make a prima facie showing of eligibility. On appeal, appointed counsel filed a Wende brief raising no issues, Johnson filed no supplemental brief, and the Court of Appeal, after independent review of the record under Wende and Anders, found no reasonably arguable issues and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial without prejudice of Proposition 47 petition (Pen. Code, § 1170.18) for failure to state facts sufficient to make a prima facie showing of eligibility for resentencing“On November 19, 2015, the court denied Johnson's petition without prejudice, ruling in relevant part that the petition "fails to state facts sufficient to make a prima facie showing that relief should be granted."” | unclear | correct | agree with court The petition alleged only that Johnson was convicted of section 459 burglary, a felony that is not categorically a misdemeanor under Proposition 47; second degree burglary qualifies only if it meets the elements of shoplifting under section 459.5 (entry into a commercial establishment during business hours with intent to commit larceny of property worth $950 or less). The petitioner bears the initial burden of establishing eligibility, so a bare form petition with no facts about the burglaries supports denial without prejudice, and the appellate court's Wende review disclosing no arguable issue is consistent with that framework. The opinion itself contains no substantive analysis and no facts about the underlying offenses, so agreement rests on the described procedural posture rather than on reasoning the court articulated. |
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 error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must so advise the court and file a brief referring to anything in the record that might arguably support the appeal, after which the court conducts its own examination of the record.
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 took effect November 5, 2014, and reclassified certain drug- and theft-related felonies and wobblers as misdemeanors unless committed by ineligible defendants.
- missed: People v. Sherow (2015) 239 Cal.App.4th 875 — A Proposition 47 petitioner bears the initial burden of alleging and establishing facts showing eligibility for resentencing (e.g., that the value of the property did not exceed $950), and a petition lacking such facts may properly be denied without prejudice to refiling with evidentiary support.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende/Anders independent review is constitutionally required only on a defendant's first appeal of right from a judgment of conviction, not on appeals from postjudgment orders; in such appeals, if the defendant files no supplemental brief, the appeal may be dismissed as abandoned rather than reviewed for error.
The appellate opinion: sound with gaps — The opinion applies the standard Wende/Anders procedure, accurately describes the petition and the trial court's ruling, and reaches a result consistent with the rule that a Proposition 47 petitioner must plead facts showing eligibility, which a bare form petition citing only section 459 did not do. It contains no substantive analysis and does not cite Sherow (petitioner's burden) or address Serrano (whether Wende review even applies to a postjudgment Proposition 47 appeal), though conducting the review anyway did not prejudice the defendant and the denial was without prejudice.
How this analysis was made · dispute it
record incompleteOpinion
Filed 8/26/16 P. v. Johnson 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, D069387
Plaintiff and Respondent, v. (Super. Ct. No. SCD237199)
ROBERT JOHNSON III,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Daniel F.
Link, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Robert Johnson III appeals from an order of the superior court denying his petition to recall his felony sentence for second degree burglary and to resentence him to a misdemeanor pursuant to Penal Code section 1170.18, subdivision (a), which was enacted as part of Proposition 47.1 Johnson's brief on appeal, filed by appointed appellate counsel, presents no argument for reversal, but invites this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
Johnson did not respond to separate invitations from appellate counsel and from this court to file a supplemental brief. 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 AND PROCEDURAL BACKGROUND
In September 2012 the district attorney filed an amended information, charging Johnson with seven counts of second degree burglary in violation of section 459 (counts 1-7) and one count of failure to appear while on bail in violation of section 1320.5 (count 8). In count 8, the amended information alleged a penalty enhancement under section 12022.1, subdivision (b), based on Johnson having been released on his own recognizance pending final judgment on an earlier felony offense at the time of the charged failure to appear while on bail on a more recent felony offense.
Finally, the amended information also alleged: Johnson suffered one strike prior within the meaning of sections 667, subdivisions (b)-(i), 1170.12 and 668; three prison priors 1 "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with . . . Section 459.5 . . . of the Penal Code, as th[at] section[] ha[s] been . . . added by this act." (Pen. Code, § 1170.18, subd. (a); further undesignated statutory references are to the Pen. Code.) 2 within the meaning of sections 667.5, subdivision (b) and 668; and five probation denial priors within the meaning of section 1203.
Pursuant to a negotiated plea agreement, Johnson pleaded guilty to the charges in all eight counts of the information and admitted the allegations of the penalty enhancement in count 8 and the three prison priors within the meaning of sections 667.5, subdivision (b) and 668. In addition, the People agreed to strike the prior strike conviction, Johnson agreed to waive all actual custody days and credits at the time of sentencing, and together the parties agreed to a sentence of 12 years eight months.
In November 2012 the court sentenced Johnson to a prison term of 12 years eight months and ordered that he pay various fees, fines, assessments and victim restitution.
On November 4, 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act; and under the California Constitution (art. II, § 10, subd. (a)), it became effective the following day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) "Proposition 47 makes certain . . . 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)." (Id. at p. 1091.)
In April 2015 Johnson filed a one-page form petition, requesting that his "felony sentence(s)" be recalled and that the "conviction(s)" be reduced "to (a) misdemeanors."2 2 As part of an October 2015 "Notice of Request for Ruling," Johnson attached a copy of an unfiled Los Angeles County Superior Court one-page form "Motion to Reduce Charge to Misdemeanor Proposition 47," dated July 20, 2015, requesting that his felony 3 (§ 1170.18, subds. (b) & (d).) Other than the requested relief, the petition alleges only that Johnson "was convicted of a felony offense(s) (PC459) that is/are now (a)
misdemeanor(s) pursuant to . . . section 1170.18." The People opposed the petition, asserting that Johnson is not entitled to the requested relief on the basis that "[n]o counts [are] eligible under [section] 1170.18." On November 19, 2015, the court denied Johnson's petition without prejudice, ruling in relevant part that the petition "fails to state facts sufficient to make a prima facie showing that relief should be granted."
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal; mentions no reasonably arguable appellate issues, pursuant to Anders, supra, 386 U.S. 738; and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Counsel invited Johnson to file a brief on his own behalf, and we granted Johnson permission to file a brief on his own behalf, but Johnson has not responded.
Our 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 issues.
Johnson has been adequately represented by counsel in this appeal.
charge be reduced to a misdemeanor. We express no opinion as to the effect, if any, of this motion. 4 DISPOSITION The judgment is affirmed.
IRION, J.
WE CONCUR:
MCDONALD, Acting P. J.
AARON, J.
Cites, in this corpus
- People v. Rivera H041742 · 2015-01-29
- People v. Wende Crim. 20851 · 1979-10-12