People v. Perry CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD275494
- Trial judge
- Theodore M. Weathers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Patricia Guerrero
Analysis
The trial court denied Perry's petition for writ of error corum nobis, finding it presented no factual claims suggesting the judgment should not have been rendered in the agreed-upon manner. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to People v. Wende and finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for writ of error corum nobis“The trial court denied the petition finding the petition presented “no factual claims that suggest judgment should not have been rendered in the agreed-upon manner.”” | unclear | correct | agree with court The appellate court affirmed the trial court's denial, stating it had reviewed the entire record and found no arguable issues for reversal. The opinion does not explicitly state the standard of review (e.g., abuse of discretion) but implies the trial court's factual finding was supported by the record. |
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, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation in an appeal where no arguable issues exist, requiring a brief identifying potential issues and a court review.
The appellate opinion: sound — The opinion is procedurally sound as it follows the established Wende/Anders protocol for reviewing appeals where counsel identifies no issues. It correctly notes the independent review of the record and the lack of arguable errors.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Devonte Perry's pro. per. petition for writ of error coram nobis attacking his stipulated 34-year-four-month sentence, finding the petition presented no factual claims suggesting the judgment should not have been rendered as agreed, and also denied a certificate of probable cause. On appeal, appointed counsel filed a Wende brief, Perry filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed the order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for writ of error coram nobis attacking stipulated sentence following guilty plea“The trial court denied the petition finding the petition presented “no factual claims that suggest judgment should not have been rendered in the agreed-upon manner.”” | abuse of discretion | correct | agree with court Coram nobis lies only where a petitioner shows a fact existed that, without his fault, was not presented to the court, that does not go to the merits, and that could not have been discovered earlier; denial is reviewed for abuse of discretion (People v. Kim). The trial court found no factual claims of that kind, and nothing in the opinion suggests the petition identified any newly discovered fact rather than a legal attack on the stipulated sentence, which coram nobis cannot reach. The appellate court's affirmance is consistent with that law even though it never cites Kim or articulates the standard beyond listing counsel's potential issues. |
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 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.
- missed: People v. Kim (2009) 45 Cal.4th 1078 — Sets the three-part test for coram nobis relief (newly discovered fact not presented through no fault of petitioner, not going to the merits, not discoverable earlier with due diligence), confirms the writ does not reach legal errors or attacks on a plea's consequences, and establishes abuse-of-discretion review of a denial.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende/Anders independent review is constitutionally required only in a first appeal of right from the judgment of conviction, not in appeals from postconviction orders; in such appeals the court may dismiss as abandoned if the defendant files no supplemental brief.
The appellate opinion: sound with gaps — The affirmance is defensible: a coram nobis petition that raises no factual claims fails under People v. Kim, and conducting a Wende-style review of a postconviction order, while not required, does not prejudice the defendant. The opinion nonetheless skips the governing coram nobis authority and does not address whether Wende review even applies to an appeal from a postjudgment coram nobis denial under Serrano and its progeny.
Opinion
Filed 5/5/21 P. v. Perry 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, D078509
Plaintiff and Respondent, v. (Super. Ct. No. SCD275494)
DEVONTE J. PERRY, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In April 2019, Devonte J. Perry entered into a plea agreement with a stipulated sentence. Perry pleaded guilty to robbery (Pen. Code,1 § 211) and attempted murder (§§ 187, subd. (a) & 666). Perry admitted he personally discharged a firearm (§ 12022.53, subd. (c)) and inflicted great bodily injury 1 All further statutory references are to the Penal Code. (§ 12022.7, subd. (a)). The parties stipulated to a sentence of 34 years four months in prison. The remaining charges and allegations were dismissed. In June 2019, Perry was sentenced in accordance with the plea agreement. In November 2020, Perry filed a pro. per. petition for writ of error corum nobis attacking the stipulated sentence. The trial court denied the petition finding the petition presented “no factual claims that suggest judgment should not have been rendered in the agreed-upon manner.” Perry filed a notice of appeal and requested a certificate of probable cause. The court denied the request for a certificate of probable cause. 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 Perry the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS In his change of plea, Perry stated he took personal property from another by means of force and used a firearm. He admitted that on a different occasion he attempted to murder a human being using a firearm. 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 issues that were considered in evaluating the potential merits of this appeal: 1. Whether the court abused its discretion in denying the petition.
2 2. Whether Perry established some facts existed which, without his fault, were not presented to the court prior to his plea. 3. Whether the new evidence was not related to the merits of his case. 4. Whether Perry could have discovered the new evidence sooner than he did. 5. Whether such evidence, if presented prior to the plea, would have prevented rendition of the judgment. 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 Perry on this appeal. DISPOSITION The order denying Perry’s petition for writ of error corum nobis is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12