People v. Lopez CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCS274613
- Trial judge
- Theodore M. Weathers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court denied Lopez's petition for resentencing under Penal Code section 1170.95, determining that his conviction for voluntary manslaughter did not qualify for relief. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after a Wende review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“the court denied the petition for resentencing noting convictions for manslaughter are not eligible for relief under section 1170.95.” | de novo | correct | agree with court The appellate court affirmed the trial court's denial, agreeing that a conviction for voluntary manslaughter does not meet the eligibility requirements for resentencing under section 1170.95, which applies to convictions for murder. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed counsel to identify arguable issues or file a brief stating no issues exist, prompting the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation on appeal when no arguable issues exist, requiring a full record review by the court.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for error. It correctly identifies that the underlying conviction for voluntary manslaughter is statutorily ineligible for relief under section 1170.95, which is limited to murder convictions.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Jesse Lopez's Penal Code section 1170.95 resentencing petition because his conviction, by guilty plea, was for voluntary manslaughter rather than murder, which the court held is not an eligible offense. On appeal, appointed counsel filed a Wende brief, Lopez filed nothing, 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 on the ground that a voluntary manslaughter conviction is not eligible for relief“After reviewing the briefs and the record, the court denied the petition for resentencing noting convictions for manslaughter are not eligible for relief under section 1170.95.” | de novo | correct | agree with court The opinion does not expressly state a standard but characterizes the appeal as raising only issues of law, and statutory eligibility under section 1170.95 is a legal question. Section 1170.95 by its terms applies to persons convicted of felony murder or murder under a natural and probable consequences theory; a defendant who pleaded guilty to voluntary manslaughter was not convicted of murder, and published Court of Appeal decisions preceding this opinion (e.g., Cervantes, Turner) uniformly so hold. The result is consistent with the statute and the case law, though the court cites none of it. |
Summary denial at the prima facie stage without issuing an order to show cause or holding further statutory proceedings“Whether Lopez’s pro. per. petition stated prima facie showing of eligibility such that the trial court erred in summary denial without further statutory proceedings” | de novo | correct | agree with court The trial court appointed counsel and received briefing from both sides before ruling, so the petitioner received the procedural protections of the first stage. Because ineligibility appeared on the face of the record of conviction (a plea to manslaughter, not murder), no prima facie showing could be made as a matter of law and an order to show cause was not required. The Wende disposition identifies this issue but does not analyze it; the conclusion is nonetheless defensible. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal without merit should file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Turner (2020) 45 Cal.App.5th 428 — Section 1170.95 relief is limited to persons convicted of murder; those who pleaded to voluntary manslaughter in lieu of a murder charge are ineligible.
The appellate opinion: sound with gaps — The affirmance is correct because section 1170.95, as construed by every published decision before March 2021, does not reach voluntary manslaughter convictions, and the trial court afforded counsel and briefing before ruling. The opinion, however, is a bare Wende disposition that cites no section 1170.95 authority and does not address whether Wende review even applies to a postconviction appeal (People v. Cole), so it reaches the right result without engaging the governing law.
Opinion
Filed 3/22/21 P. v. Lopez 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, D077988
Plaintiff and Respondent, v. (Super. Ct. No. SCS274613)
JESSE LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2017, Jesse Lopez pleaded guilty to voluntary manslaughter as a lesser included offense of murder (Pen. Code,1 § 192, subd. (a)). Lopez admitted he personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)). The remaining charges and allegations were dismissed 1 All further statutory references are to the Penal Code. as part of a plea agreement. Lopez was sentenced to a determinate term of nine years in prison. In August 2019, Lopez filed a petition for resentencing under section 1170.95 alleging he had been convicted of either first or second degree murder and could not now be convicted in light of the changes in the definitions of malice contained in Senate Bill No. 1437. The trial court appointed counsel and received briefing from both the defense and prosecution. After reviewing the briefs and the record, the court denied the petition for resentencing noting convictions for manslaughter are not eligible for relief under section 1170.95. Lopez 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 mandate by Wende. We offered Lopez the opportunity to file his own brief on appeal, but he has not responded.
DISCUSSION2 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 2 This appeal raises only potential issues of law. The conviction was by guilty plea to manslaughter. The facts introduced at the preliminary hearing are not helpful to a Wende review of this case. Thus, we have omitted a statement of facts. 2 has identified the following possible issues that were considered in evaluating the potential merits of this appeal: 1. Whether Lopez’s pro. per. petition stated prima facie showing of eligibility such that the trial court erred in summary denial without further statutory proceedings; and 2. Whether Lopez’s conviction for voluntary manslaughter made him not eligible for relief under section 1170.95. 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 Lopez on this appeal. DISPOSITION The order denying Lopez’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12