People v. Smith CA4/1

California Court of Appeal · D078632 · 2021-08-18 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Bernardino County · No. 16CR016505
Trial judge: Lisa M. Rogan
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, Patricia Guerrero

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:03Z · confidence low

The trial court denied Smith's petition to strike or modify his firearm enhancements under Penal Code section 12022.53, subdivision (h), reinstating his original sentence while reducing the restitution fine. The Court of Appeal affirmed the order, finding no arguable issues for reversal after an independent review of the record pursuant to Wende and Anders.

Ruling reviewed	Standard	The court	The model
Denial of petition to strike or modify firearm enhancements under Penal Code section 12022.53, subdivision (h) “The judge concluded the facts of the offenses and the “extensive use of the gun” during the robberies convinced the judge that striking or modifying the enhancements was not warranted.”	abuse of discretion	not reached	unsure The appellate court did not explicitly apply the abuse of discretion standard to the trial court's decision; instead, it conducted an independent review of the record under Wende and Anders and concluded that no arguable issues for reversal were identified.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires 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 independent review of the record by the appellate court when appointed counsel files a brief stating no arguable issues exist.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — A defendant must make a record in the trial court to support a constitutional challenge to a sentence; if the record is insufficient, the remedy is typically a petition for habeas corpus.

The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of Wende and Anders, correctly identifying that no arguable issues were found in the record. However, it fails to explicitly address the specific legal standard (abuse of discretion) for the trial court's denial of the section 12022.53(h) petition, relying instead on the absence of identified errors in the Wende review.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

On remand after the first appeal, the trial court held a hearing, acknowledged its discretion under Penal Code section 12022.53, subdivision (h), and declined to strike or modify Smith's three section 12022.53, subdivision (b) firearm enhancements, reinstating the 23-year-eight-month sentence while reducing the restitution fine to $250. Appointed counsel filed a Wende brief, Smith filed a supplemental brief asserting cruel and unusual punishment, and the Court of Appeal, finding no arguable issues after independent review, affirmed the order denying resentencing.

Ruling reviewed	Standard	The court	The model
Denial of Smith's motion on remand to strike or modify the section 12022.53, subdivision (b) firearm enhancements under section 12022.53, subdivision (h) “The judge concluded the facts of the offenses and the “extensive use of the gun” during the robberies convinced the judge that striking or modifying the enhancements was not warranted.”	abuse of discretion	correct	agree with court The opinion recites that the trial judge expressly recognized her discretion, weighed Smith's favorable prison record against the facts of the robberies and the extensive gun use, and gave reasons on the record. A reasoned refusal to strike after considering both aggravating and mitigating factors is the classic exercise of discretion that is not disturbed on appeal, and counsel's second Anders issue (failure to consider a lesser term) is answered by the opinion's statement that the court considered and declined to 'strike or modify' the enhancements. The court did not discuss the then-existing split (People v. Morrison vs. People v. Tirado) on whether a lesser uncharged enhancement could be imposed, but the record as described shows modification was considered, so no arguable error appears.
Smith's supplemental-brief claim that his sentence is cruel and unusual punishment, supported by materials outside the appellate record “To the extent Smith wishes to pursue a constitutional challenge to his sentence, he must make a record in the trial court to support such challenge.”	unclear	not reached	agree with court The court declined to reach the constitutional claim because it rested on an article and other materials not in the record and no record had been made in the trial court, directing Smith to habeas corpus. This is consistent with the rule that appellate review is confined to the record and that claims depending on extra-record facts belong in a habeas petition; the citation to People v. Mendoza Tello, an ineffective-assistance case, is an analogy rather than a direct holding, but the result is correct. The court satisfied its Wende/Kelly duty to address issues raised in a supplemental brief, though it did not cite People v. Kelly.

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 before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacks merit should identify anything in the record that might arguably support the appeal to assist the court's review.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Claims that depend on facts outside the appellate record (there, ineffective assistance of counsel) are properly raised by petition for writ of habeas corpus rather than on direct appeal.

The appellate opinion: sound with gaps — The opinion correctly applies Wende/Anders review, addresses the only issue raised in the defendant's supplemental brief, and reaches a defensible result given that the trial judge expressly recognized and exercised her section 12022.53(h) discretion with stated reasons. It skips, however, any discussion of whether Wende review applies to this postjudgment appeal (the issue addressed in People v. Serrano and People v. Cole), does not cite People v. Kelly for its treatment of the supplemental brief, and does not mention the then-unresolved Morrison/Tirado split on imposing a lesser firearm enhancement, which bears on counsel's second Anders issue.

How this analysis was made · dispute it

Opinion

Filed 8/18/21 P. v. Smith 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, D078632

Plaintiff and Respondent, v. (Super. Ct. No. 16CR016505)

MARK CHRISTOPHER SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Lisa M. Rogan, Judge. Affirmed. Mark Christopher Smith, in pro. per.; and Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2017, following a joint jury trial with a codefendant, Mark Christopher Smith was convicted of three counts of robbery (Pen. Code,1 § 211). The jury also found Smith personally used a firearm in each count and found true enhancements alleged under section 12022.53, subdivision (b).

1 All further statutory references are to the Penal Code. The court sentenced Smith to a determinate term of 23 years eight months in prison. The court also imposed a $10,000 restitution fine. Smith appealed and this court affirmed the convictions but remanded the case to permit the trial court to exercise newly acquired discretion to strike or modify the firearm enhancements. (People v. Moore, et al. (Jan. 24, 2019, D074567) [nonpub. opn.].)2 On remand, Smith petitioned the trial court to exercise its discretion to strike or modify the enhancements. The court appointed counsel and held a hearing. After considering the petition, the facts of the offenses and Smith’s favorable prison record, the court declined to strike or modify the enhancements and reinstated the sentence. The court did reduce the restitution fine to $250. In its statements denying Smith’s petition, the trial judge acknowledged her discretion to strike or modify the firearm enhancements and recognized Smith had done well in prison. The judge concluded the facts of the offenses and the “extensive use of the gun” during the robberies convinced the judge that striking or modifying the enhancements was not warranted. Smith filed a timely notice of appeal from the order denying his request to modify his sentence. 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 Smith the opportunity to 2 We have taken judicial notice of our prior opinion in case No. D074567. We decline, however, to take judicial notice of similar but separate postjudgment proceedings regarding the codefendant (case No. D076879). 2 file his own brief on appeal and he has responded with a supplemental brief. We will address Smith’s submission below. STATEMENT OF FACTS The facts of the underlying offenses are fully set forth in our prior opinion. We will not repeat them here. (People v. Moore, et al., supra, D074567.) 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, 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. Did the lower court abuse its newly granted discretion under section 12022.53, subdivision (h) by denying Smith’s motion for resentencing to strike his enhancements for personal use of a handgun under section 12022.53, subdivision (b)? 2. Did the lower court abuse its newly granted discretion under section 12022.53, subdivision (h) by not considering whether to reduce the base term of the enhancement to three or four years, as authorized by section 12022.53, subdivision (b)? In his supplemental brief, Smith argues his sentence amounts to cruel and unusual punishment. In support of his contention, Smith includes an article and other materials which are not part of the record on this appeal. To the extent Smith wishes to pursue a constitutional challenge to his sentence, he must make a record in the trial court to support such challenge. The record on this appeal does not provide support for the contentions he raises in his supplemental brief. Smith’s remedy, if any, is by way of a 3 petition for habeas corpus filed in the Superior Court. (People v. Mendoza Tello (1997) 15 Cal.4th 264.) 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 Smith on this appeal. DISPOSITION The order denying Smith’s motion for resentencing is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.

Cites, in this corpus

People v. Mendoza Tello S055184 · 1997-04-17
People v. Wende Crim. 20851 · 1979-10-12