People v. Alexandre CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD236372
- Trial judge
- Melinda J. Lasater
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Patricia D. Benke, Truc T. Do
Analysis
The trial court denied Anthony Alexandre's petition to vacate his conviction under Penal Code section 1473.7, subdivision (a)(2), finding he was in constructive custody due to state parole and failed to demonstrate actual innocence. The Court of Appeal affirmed the denial, concluding that Alexandre's arguments regarding speedy trial violations and jurisdictional defects fell outside the statutory scope of section 1473.7.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to vacate conviction under Penal Code section 1473.7, subdivision (a)(2)“The court found Alexandre, who was then in federal custody, was on state parole, and thus, not eligible for relief under the statute.” | de novo | correct | agree with court The appellate court correctly applied the statutory requirements of section 1473.7, subdivision (a)(2), which mandates that the petitioner be out of state custody and demonstrate newly discovered evidence of actual innocence. Alexandre admitted to being on state parole (constructive custody) and failed to provide evidence of factual innocence, instead arguing speedy trial issues which are not cognizable under this specific statute. Therefore, the trial court's denial was legally sound. |
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 file a brief identifying potentially meritorious issues when they believe an appeal is frivolous.
The appellate opinion: sound — The opinion is procedurally sound as it correctly identifies the statutory limitations of section 1473.7, subdivision (a)(2), and notes that the appellant's arguments regarding speedy trial and jurisdiction do not fit the statutory definition of 'newly discovered evidence of actual innocence.' It also correctly notes the appellant's status in constructive custody barred relief under the statute.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Anthony Alexandre's Penal Code section 1473.7, subdivision (a)(2) petition to vacate his 2016 convictions, finding he was still on state parole (constructive custody) and therefore ineligible, and that the petition contained no newly discovered evidence of actual innocence. On appeal, counsel filed a Wende brief, Alexandre filed a supplemental brief arguing pretrial delay and lack of jurisdiction, 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 1473.7, subdivision (a)(2) petition on the ground that Alexandre, on state parole, remained in constructive custody and was ineligible for relief“The court found Alexandre, who was then in federal custody, was on state parole, and thus, not eligible for relief under the statute.” | unclear | correct | agree with court Section 1473.7 is available only to a person 'no longer in criminal custody.' Treating parole as constructive custody is consistent with how California courts treat parole for habeas purposes, and Alexandre did not deny he was on state parole when he filed. The opinion does not cite authority for the point or state a standard of review, but the conclusion is defensible and, in any event, the court rested affirmance on the independent actual-innocence ground as well. |
Denial of section 1473.7, subdivision (a)(2) petition on the alternative ground that it presented no newly discovered evidence of actual innocence“The court also found the petition did not contain any evidence of actual innocence as required by the statute even if Alexandre was not in constructive custody.” | unclear | correct | agree with court Subdivision (a)(2) requires newly discovered evidence of actual innocence. Alexandre's materials (driver's license, tickets, failure to appear in Los Angeles) go only to whether he was out of state for speedy-trial tolling purposes and to a claimed jurisdictional defect; they say nothing about whether he committed the charged offenses. The court correctly held those contentions fall outside the statute's scope. |
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 without merit should file a brief referring to anything in the record that might arguably support the appeal to assist the court's review.
The appellate opinion: sound with gaps — The court correctly identified the two statutory requirements of section 1473.7, subdivision (a)(2) — that the movant be out of criminal custody and present newly discovered evidence of actual innocence — and correctly found that Alexandre's speedy-trial and jurisdiction contentions satisfy neither. The opinion states no standard of review and cites no authority construing section 1473.7 (including the Supreme Court's recent decision in People v. Vivar addressing review of such motions), and it paraphrases the custody requirement loosely, but these omissions do not affect the result.
How this analysis was made · dispute it
record incompleteOpinion
Filed 6/21/21 P. v. Alexandre 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, D078457
Plaintiff and Respondent, v. (Super. Ct. No. SCD236372)
ANTHONY ALEXANDRE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Anthony Alexandre, in pro. per.; and Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, Anthony Alexandre was convicted by a jury of corporal injury to a roommate (Pen. Code,1 § 273.5, subd. (a)); stalking (§ 646.9, subd. (a)); false imprisonment by violence and menace (§§ 236 & 237); and attempting to dissuade a witness (§ 136.1, subd. (b)(1)). The jury also found Alexandre had 1 All further statutory references are to the Penal Code. personally inflicted great bodily injury on the victim (§ 12022.7, subds. (a) & (e)). Alexandre was sentenced to a determinate term of seven years four months in prison. In 2020, Alexandre filed a petition to vacate his conviction under section 1473.7, subdivision (a)(2).2 The trial court denied the petition. The court found Alexandre, who was then in federal custody, was on state parole, and thus, not eligible for relief under the statute. The court also found the petition did not contain any evidence of actual innocence as required by the statute even if Alexandre was not in constructive custody. Alexandre 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 Alexandre the opportunity to file his own brief on appeal. He has responded by filing a supplemental brief. We will discuss his submission later in this opinion. 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 issue which was considered in evaluating the potential merit of this appeal: Whether the trial court erred by denying Alexandre’s motion to vacate his conviction pursuant to section 1473.7? Alexandre filed a supplemental brief in this appeal. The record of the prior trial is not before us, but he complains the original trial was improper.
2 Section 1473.7, subdivision (a)(2) provides: “Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.” 2 As best we can tell, there was a delay in prosecution as the crimes were committed in 2011 and the prosecution appears to have taken place in 2015 and 2016. Alexandre argues the prosecutor alleged he was out of state, tolling the speedy trial time. Alexandre now presents material to show he obtained a driver’s license, received several tickets, and failed to appear for court proceedings in Los Angeles, thus substantiating his claim he did not leave the state until 2014. Section 1473.7, subdivision (a)(2), requires the petitioner to be out of state custody. Alexandre does not deny he was on state parole and thus in constructive custody when the petition was filed. The section also requires a showing of factual innocence. No such material was contained in the petition and no material regarding factual innocence has been included in Alexandre’s submission. Alexandre’s argument is wholly based on alleged pretrial delay and his contention the trial court lacked jurisdiction to conduct the original trial. Alexandre’s contentions do not come within the scope of section 1473.7, subdivision (a)(2), thus he has not raised any arguable issues for reversal on appeal. 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 Alexandre on this appeal.
3 DISPOSITION The order denying Alexandre’s petition to vacate his conviction under section 1473.7, subdivision (a)(2) is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12