People v. Spencer CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE257643
- Trial judge
- Daniel G. Lamborn
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Cynthia Aaron, Truc T. Do
Analysis
The trial court denied Spencer's petition for resentencing under Penal Code section 1170.95, finding she was ineligible because she was the actual killer. The Court of Appeal affirmed the denial after an independent review of the record pursuant to People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court found Spencer had not demonstrated a prima facie case for relief under section 1170.95 and denied Spencer’s petition for resentencing.” | de novo | 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 arguable issues when no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for error. However, it is a 'sound with gaps' opinion because it fails to articulate the specific legal standard for determining 'actual killer' status under section 1170.95 or cite to the controlling authority (People v. Strong) that defines this statutory element, relying instead on the trial court's factual finding without independent legal analysis.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Julie Lynn Spencer's Penal Code section 1170.95 resentencing petition at the prima facie stage after reviewing the record of conviction and the prior appellate opinion, finding she acted alone and was the actual killer of the victim. On appeal, appointed counsel filed a Wende/Anders brief, Spencer 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 |
|---|---|---|---|
Denial of section 1170.95 petition for resentencing at the prima facie stage on the ground that the record of conviction established Spencer acted alone and was the actual killer, making her statutorily ineligible for relief“After reviewing the material, the court found the record established Spencer acted alone and was the actual killer of the victim.” | unclear | correct | agree with court Section 1170.95 relief is limited to persons convicted under felony-murder or natural-and-probable-consequences theories who could not be convicted of murder after the 2019 amendments to sections 188 and 189; an actual killer who acted alone remains liable for murder under section 189, subdivision (e)(1) and under a malice theory, so she cannot make a prima facie showing. The facts recited from the prior opinion (Spencer personally beat, cut, bound, and attempted to burn the victim, who died of those injuries) support the actual-killer finding, and the trial court appointed counsel and received briefing before ruling. The opinion does not discuss the standard of review or whether the jury was instructed on any imputed-malice theory, and it does not address the then-pending question whether the record of conviction may be consulted at the prima facie stage, but the result is consistent with the prevailing published Court of Appeal authority at the time. |
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 arguable error in a first appeal of right.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous should file a brief referring to anything in the record that might arguably support the appeal so the court can conduct its own review.
- missed: Conservatorship of Ben C. (2007) 40 Cal.4th 529 — Wende independent review is constitutionally required only in a criminal defendant's first appeal of right and does not automatically extend to other appeals; the court applied Wende to a postconviction section 1170.95 appeal without addressing whether that procedure was required or merely discretionary.
The appellate opinion: sound with gaps — The court reached a defensible result because an actual killer who acted alone is categorically ineligible for section 1170.95 relief, and the record facts recited support that finding. It skipped any discussion of whether Wende review applies to a postconviction resentencing appeal (Conservatorship of Ben C.) and of the then-contested question whether the trial court could rely on the record of conviction and prior appellate opinion at the prima facie stage, resolving the appeal in a few conclusory sentences.
How this analysis was made · dispute it
record incompleteOpinion
Filed 4/12/21 P. v. Spencer 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, D078136
Plaintiff and Respondent, v. (Super. Ct. No. SCE257643)
JULIE LYNN SPENCER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In March 2007, a jury convicted Julie Lynn Spencer of second degree murder (Pen. Code,1 § 187, subd. (a)); robbery with the use of a knife (§§ 211, 12022, subd. (b)(1)); attempted arson (§§ 664 & 451, subd. (a)); cruelty to an adult with great bodily injury (§§ 368, subd. (b)(1) & 12022.7, subd. (c));
1 All further statutory references are to the Penal Code. caretaker theft (§ 368, subd. (e)); false imprisonment of a dependent adult (§ 368, subd. (f)); and two counts of forgery (§ 470, subd. (d)). Spencer was sentenced to an indeterminate term of 15 years to life plus two years in prison. Spencer appealed and this court affirmed her conviction in an unpublished opinion. (People v. Spencer (July 31, 2008, D051183) [nonpub. opn.].) In 2019, Spencer filed a form petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing from the parties, reviewed the record of conviction and considered this court’s prior opinion. After reviewing the material, the court found the record established Spencer acted alone and was the actual killer of the victim. The court found Spencer had not demonstrated a prima facie case for relief under section 1170.95 and denied Spencer’s petition for resentencing. Spencer 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 and asks the court to review the record for error as mandated by Wende. We offered Spencer the opportunity to file her own brief on appeal, but she has not responded. STATEMENT OF FACTS The facts of the offenses are fully set forth in our prior opinion. Appellate counsel has included a summary of the facts from our opinion. We incorporate it here for convenience. On December 10, 2005, Spencer attacked Parks in his mobile home. She punched and kicked him, cut him, bound him with a vacuum cord and 2 attempted to set fire to Parks and his mobile home. Spencer took both of Parks’s hearing aids and all of his telephones. Because of his injuries and the removal of the phones, Parks was unable to summon help. He was able to crawl into bed and the next morning he was able to crawl to his car and drive the short distance to his neighbor in order to get help. Parks suffered four facial fractures, a broken rib, lacerations on his hand and ear and multiple bruises over his body. He was taken to the hospital where he remained until he stabilized. Parks was then sent to a nursing home. After a short time his condition deteriorated, and he was returned to the hospital. He was returned to the nursing home on January 3, 2006, and died there four days later. The medical examiner testified that Parks died as a result of the injuries inflicted on him on December 10, 2005, together with his pre-existing condition. The examiner concluded that the injuries inflicted on Parks were significant and life threatening to him given his pre-existing condition. The examiner denied that any injuries that may have been caused by a fall from his wheelchair at the nursing home acted as an intervening cause of death. 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 court improperly conclude Spencer was statutorily ineligible for relief pursuant to section 1170.95 because she was the actual killer?
3 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 Spencer on this appeal. DISPOSITION The order denying Spencer’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12