People v. Ribera CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN367140
- Trial judge
- Harry M. Elias
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Cynthia Aaron, Joan K. Irion
Analysis
The trial court resentenced the defendant to 75 years to life after striking a prior conviction and reducing a vehicle count to a misdemeanor on remand. The Court of Appeal affirmed the judgment after finding no arguable issues for reversal during its independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the resentenced judgment (75 years to life) following the trial court's exercise of discretion to strike the serious felony prior and reduce the vehicle count.“We have reviewed the entire record as mandated by Wende and Anders. We have not identified any arguable issues for reversal on appeal.” | de novo | correct | agree with court The appellate court applied the standard Wende/Anders review, which requires an independent examination of the record to identify arguable issues. Since the court found no such issues and the trial court's actions (striking the prior, reducing the count) were discretionary and not challenged with specific legal arguments in the brief, the affirmance is procedurally correct. The court correctly noted that competent counsel represented the defendant. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the requirement for appointed appellate counsel to file a brief identifying arguable issues and for the court to conduct an independent review of the record if no issues are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires that when appointed counsel finds no arguable issues, they must file a brief explaining why and the court must independently review the record to ensure the appeal is not frivolous.
The appellate opinion: sound — The opinion is procedurally sound as it strictly follows the Wende/Anders protocol for handling appeals where counsel finds no merit. The court explicitly states it reviewed the entire record and found no arguable issues, which is the correct legal standard for this type of appeal. The disposition is consistent with the lack of identified legal errors in the resentencing process described.
How this analysis was made · dispute it
unusual dispositionOn remand after a prior appeal, the trial court accepted reduction of the Vehicle Code section 10851 count to a misdemeanor, granted Rivera's motion to strike the section 667, subdivision (a)(1) serious felony prior in furtherance of justice, resentenced him to 75 years to life, and amended the abstract of judgment. Rivera appealed; appointed counsel filed a Wende/Anders brief identifying only whether the abstract reflected the sentence, Rivera filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Resentencing on remand to 75 years to life after striking the serious felony prior and reducing the vehicle count to a misdemeanor, with amended abstract of judgment“The court granted Rivera's motion to strike the serious felony prior conviction in the furtherance of justice. Rivera was resentenced to an indeterminate term of 75 years to life. The court amended the abstract of judgment to reflect the new sentence.” | unclear | correct | agree with court The appeal is from a new judgment entered after resentencing, so Wende independent review was the proper procedure. The trial court did everything the remittitur permitted and granted the defendant all relief he sought (misdemeanor reduction and striking the prior), and the only issue counsel flagged—accuracy of the abstract—was reviewed and found unproblematic. Nothing in the opinion suggests any error, and the 84-to-75 reduction is consistent with striking a five-year enhancement plus the felony vehicle count. The opinion is minimal, however, so agreement rests on the court's representation that it reviewed the whole record. |
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 before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous must file a brief referring to anything in the record that might arguably support the appeal to assist the court's review.
The appellate opinion: sound — The court applied the correct Wende/Anders procedure to a direct appeal from a resentencing judgment, invited a supplemental brief from the defendant, and independently reviewed the record, which is all the law requires. The opinion is cursory and does not expressly explain its conclusion on the single flagged issue (the abstract), but no argument was presented that it failed to answer.
Opinion
Filed 9/11/20 P. v. Ribera 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, D077040
Plaintiff and Respondent, v. (Super. Ct. No. SCN367140)
NATHAN C. RIVERA, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2018, a jury convicted Nathan C. Rivera of first degree murder (Pen.
Code,1 § 187, subd. (a)) and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)). Rivera admitted recidivist enhancements including a serious 1 All further statutory references are to the Penal Code unless otherwise specified. felony prior (§ 667, subd. (a)(1)). Rivera was sentenced to a term of 84 years to life. Rivera appealed and this court affirmed the murder conviction but reversed the Vehicle Code count. The matter was remanded to permit the People to retry the Vehicle Code count or accept reduction to a misdemeanor. The sentence was vacated to permit the trial court to exercise its discretion to consider striking the serious felony prior. (People v. Rivera (June 18, 2019, D073575) [nonpub. opn.].) On remand, the People declined to retry the vehicle count and accepted reduction to a misdemeanor. The court granted Rivera's motion to strike the serious felony prior conviction in the furtherance of justice. Rivera was resentenced to an indeterminate term of 75 years to life. The court amended the abstract of judgment to reflect the new sentence. Although he prevailed on all the issues then pending in the trial court, Rivera nonetheless appealed. 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 arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Rivera the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS We granted Rivera's request for judicial notice, including the record of our previous unpublished opinion. The facts of the underlying offense are fully set forth in that opinion. (People v. Rivera, supra, D073575.) There is no need to repeat them here.
2 DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issue that was considered in evaluating the potential merits of this appeal: Does the abstract of judgment properly reflect the sentence imposed. We have reviewed the entire record as mandated by Wende and Anders. We have not identified any arguable issues for reversal on appeal. Competent counsel has represented Rivera on this appeal. DISPOSITION The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12