People v. Sullivan CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. CRN25114
- Trial judge
- Harry M. Elias
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court denied Sullivan's petition for resentencing under Penal Code section 1170.95, finding he failed to establish a prima facie case for relief based on his admissions during his 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“Based on these admissions, the trial court denied Sullivan’s petition for resentencing pursuant to 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 file a brief identifying arguable issues and the court to independently review the record for error when counsel finds none.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying arguable issues and the court to independently review the record for error when counsel finds none.
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 issues. However, it is a 'sound with gaps' opinion because it fails to explicitly articulate the legal standard for the prima facie showing required under section 1170.95 or cite to the specific case law (such as People v. Strong) governing that standard, relying instead on a general statement that no arguable issues were found.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court denied Marcus Sullivan's Penal Code section 1170.95 resentencing petition at the prima facie stage because, in his 1994 guilty plea to first degree felony murder, he admitted he personally shot and killed the victim. On appeal, appointed counsel filed a Wende brief, Sullivan's supplemental letter attacked only his original plea, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition for failure to state a prima facie case for relief, based on defendant's plea admissions that he was the actual killer“Based on these admissions, the trial court denied Sullivan’s petition for resentencing pursuant to section 1170.95.” | unclear | correct | agree with court Section 1170.95 relief is unavailable to one who was the actual killer (see § 189, subd. (e)(1)), and the opinion recites that Sullivan admitted in his change of plea that he was the person who shot the victim causing death. A plea admission in the record of conviction establishing actual-killer liability defeats a prima facie showing as a matter of law, so the trial court's ruling appears correct. The opinion, however, states no standard of review, cites no section 1170.95 authority on what materials may be consulted at the prima facie stage, and takes its factual summary from the appellant's opening brief rather than quoting the plea record directly. |
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 lacking in merit should identify anything in the record that might arguably support the appeal to assist the court's review.
The appellate opinion: sound with gaps — The result is defensible because an admitted actual killer is categorically ineligible for section 1170.95 relief, and the court did review the record and address the supplemental brief. But the opinion applies Wende review to a postconviction appeal without acknowledging the then-existing split on whether Wende procedures apply in that setting (e.g., People v. Cole and People v. Flores, 2020), states no standard of review, and cites no section 1170.95 authority explaining why plea admissions in the record of conviction may defeat a prima facie showing.
Opinion
Filed 2/25/21 P. v. Sullivan 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, D078235
Plaintiff and Respondent, v. (Super. Ct. No. CRN25114)
MARCUS SULLIVAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Marcus Sullivan, in pro. per.; and Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In April 1994, Marcus Sullivan pleaded guilty to first degree murder committed during a robbery and admitted he was armed with, and personally used a firearm (Pen. Code,1 §§ 187, subd. (a), 211, 12022, subd. (a), & 12022.5, subd. (a)). Sullivan pleaded guilty to conspiracy (§ 182, subd. (a)(1)), 1 All further statutory references are to the Penal Code. robbery, and burglary (§§ 211, 459). In his change of plea, Sullivan admitted he was the person who shot the victim causing death. Sullivan also pleaded guilty to multiple offenses in a consolidated case not involving homicide. Sullivan was sentenced to life in prison without the possibility of parole. Sullivan appealed and this court affirmed the judgment in an unpublished opinion. (People v. Sullivan (Oct. 4, 1995, D021436) [nonpub. opn.].) In 2020, Sullivan filed a petition for resentencing under section 1170.95. The trial court found Sullivan had failed to present a prima facie case for relief and denied the petition. Sullivan filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel 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 Sullivan the opportunity to file his own brief on appeal. Sullivan has responded with a letter brief, which we will discuss below. STATEMENT OF FACTS The facts of the offense are fully set forth in our prior opinion. We will include the summary of the facts from the appellant’s opening brief to provide background. The following facts were admitted by appellant in the course of his guilty plea to the felony murder case:2 2 Since the consolidated case is based on charges unrelated to this petition, those facts are not summarized here. 2 On February 22, 1993, Sullivan and co-defendant Charles Waddey agreed to commit a robbery. Sullivan armed himself with a 30-30 rifle, and Waddey carried a hand gun. Both wore bandanas. They drove to the Stop N Go Market in Oceanside and Waddey held one of the clerks at gunpoint while Sullivan trained his rifle on the other clerk, Angel A. Sullivan shot and killed Angel A. while Waddey robbed the other clerk. As they fled the scene, Sullivan saw that two people in a car parked in front of the store were watching him. He pointed the rifle at them briefly, asked, “What are you looking at?” then ran to the getaway car. Based on these admissions, the trial court denied Sullivan’s petition for resentencing pursuant to section 1170.95. 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: Did the trial court err in concluding appellant failed to establish a prima facie case for relief. Sullivan’s submission does not address the order denying his petition under section 1170.95. Instead he complains about his original guilty plea, which was upheld in our previous opinion on direct appeal. Sullivan’s submission does not raise any arguable issues for reversal on appeal. We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Sullivan on this appeal.
3 DISPOSITION The order denying Sullivan’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12