People v. Jimenez CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD143996
- Trial judge
- Charles G. Rogers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, William S. Dato
Analysis
The trial court denied Jimenez's petition for resentencing under Penal Code section 1170.95, finding he was ineligible because he admitted to being the actual killer during his 1999 guilty plea. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court found that at the time of the plea, Jimenez admitted he was the actual killer of the victim; thus, Jimenez was not eligible for relief under section 1170.95.” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and request the court to review the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing an appeal where counsel identifies no arguable issues. However, it is a 'sound with gaps' opinion because it fails to explicitly state the standard of review for the trial court's factual findings regarding the plea admission, relying instead on a general statement that no arguable issues were found.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Danny Jimenez's Penal Code section 1170.95 resentencing petition after appointing counsel and receiving briefing, finding him ineligible because his 1999 guilty plea to second degree murder included an admission that he was the actual killer. On appeal, appointed counsel filed a Wende brief, Jimenez filed a supplemental brief raising matters outside the record, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition for resentencing on the ground that Jimenez was the actual killer and therefore ineligible as a matter of law“The court found that at the time of the plea, Jimenez admitted he was the actual killer of the victim; thus, Jimenez was not eligible for relief under section 1170.95.” | unclear | correct | agree with court Section 1170.95 relief is unavailable to a defendant who was the actual killer, and the record quoted in the opinion shows Jimenez stated at his plea that he "unlawfully murdered a human being by personal use of a gun." That admission directly establishes he personally killed the victim rather than being convicted on a felony-murder or natural-and-probable-consequences theory, so the eligibility ruling is supported by the record of conviction. The appellate court performed Wende/Anders review rather than articulating a standard of review, but the result follows from the plea admission. |
Jimenez's supplemental brief raised no arguable issue because it challenged his guilty plea and counsel's performance rather than the merits of the order denying the petition“His brief does not raise any issues regarding the merits of the order denying his petition for resentencing. He challenges his guilty plea and past and current representation by counsel.” | unclear | correct | agree with court An appeal from an order denying a section 1170.95 petition does not permit collateral attack on the underlying 1999 plea, and the matters Jimenez raised (letters, e-mails, complaints about counsel's communications) were outside the appellate record and unrelated to the eligibility determination. The court correctly confined its review to the order appealed from. |
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 wholly frivolous must file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The opinion correctly applies Wende/Anders review and the result is compelled by the plea admission that Jimenez personally murdered the victim with a gun, which forecloses section 1170.95 relief. It does not, however, expressly discuss the statutory text of section 1170.95 or the actual-killer exclusion, nor address whether Wende review is required in postconviction appeals, leaving the analysis conclusory even if defensible.
Opinion
Filed 2/24/21 P. v. Jimenez 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, D077863
Plaintiff and Respondent, v. (Super. Ct. No. SCD143996)
DANNY JIMENEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Danny Jimenez, in pro. per.; and Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 1999, Danny Jimenez pleaded guilty to second degree murder (Pen.
Code,1 § 187, subd. (a)) and admitted a firearm enhancement (§ 12022.5, former subd. (a)(1)). He also admitted a strike prior (§ 667, subds. (b)-(i)) and a serious felony prior (§ 667, subd. (a)(1)). He also waived his right to appeal.
1 All further statutory references are to the Penal Code. Jimenez was sentenced to an indeterminate term of 28 years to life, plus a determinate term of 13 years in prison. In January 2019, Jimenez filed a petition for resentencing under section 1170.95. The trial court appointed counsel and received briefing. In August 2020, the court denied the petition by written order. The court found that at the time of the plea, Jimenez admitted he was the actual killer of the victim; thus, Jimenez was not eligible for relief under section 1170.95. Jimenez filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating he has not been able to identify any arguable issue for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Jimenez the opportunity to file his own brief on appeal. Jimenez has responded with a supplemental brief, which we will discuss below. STATEMENT OF FACTS In his change of plea Jimenez stated that he “unlawfully murdered a human being by personal use of a gun and was unlawful [sic] in possession of a gun while being convicted—while being a convicted felon.” 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 which was considered in evaluating the potential merits of this appeal: Did the trial court err when it held as a matter of law that Jimenez did not qualify for remedial relief within the meaning of section 1170.95.
2 Jimenez filed a lengthy submission containing a number of matters outside the record on this appeal. He has included letters from counsel, e-mails, and other documents unrelated to the petition for resentencing. His brief does not raise any issues regarding the merits of the order denying his petition for resentencing. He challenges his guilty plea and past and current representation by counsel. Jimenez complains about counsel’s alleged failure to timely notify him of the progress of the litigation regarding his petition. Jimenez has not raised any arguable issues for reversal of the order denying his petition under section 1170.95. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Jimenez on this appeal. DISPOSITION The order denying appellant’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12