People v. Withers CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD258141
- Trial judge
- Roderick W. Shelton
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, William S. Dato
Analysis
The trial court denied Withers's petition for resentencing under Penal Code section 1170.95, finding he was ineligible because the record established he was the actual killer. The Court of Appeal affirmed the denial after a Wende review found no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court denied the petition by written order. The court found the record disclosed Withers was the actual killer and was thus ineligible for resentencing under section 1170.95.” | unclear | correct | agree with court The appellate court affirmed the trial court's order, stating that after reviewing the entire record as required by Wende and Anders, it had not discovered any 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 error when no arguable 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 when the appeal is wholly frivolous, requiring a brief identifying potentially arguable issues and court review.
The appellate opinion: sound with gaps — The opinion is procedurally sound in following the Wende/Anders protocol for a frivolous appeal. However, it is extremely brief and provides no substantive legal analysis or citation to the specific statutory elements of section 1170.95 or the prior conviction record, relying entirely on the prior unpublished opinion and the trial court's factual finding.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court denied Destin Lee Withers's Penal Code section 1170.95 resentencing petition after appointing counsel, receiving briefing, reviewing the record of conviction including the prior appellate opinion, and holding a hearing, finding the record showed he was the actual killer. On appeal, counsel filed a Wende brief, Withers 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 on the ground that the record of conviction showed Withers was the actual killer and therefore ineligible for relief“The court found the record disclosed Withers was the actual killer and was thus ineligible for resentencing under section 1170.95.” | unclear | correct | unsure The opinion is a Wende/Anders review and contains no substantive analysis of the trial court's actual-killer finding or of what in the record of conviction (jury instructions, verdicts, prior opinion) established it as a matter of law rather than through impermissible factfinding at the prima facie stage. The procedural steps described (appointed counsel, briefing, hearing) are consistent with section 1170.95 and People v. Lewis, and a first degree murder conviction with a felon-in-possession count and a prior-murder special circumstance makes an actual-killer finding plausible, but the opinion does not disclose enough to confirm the finding was properly drawn from the record. The result is likely correct, but it cannot be verified from this opinion. |
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 — Counsel filing a no-issue brief should identify issues that might arguably support the appeal to assist the court's review.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the section 1170.95 prima facie stage the court may consult the record of conviction, including a prior appellate opinion with caution, but may not engage in factfinding involving the weighing of evidence or credibility; the petitioner's allegations are taken as true unless refuted by the record as a matter of law.
The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure, invited a supplemental brief, reviewed the record, and affirmed, which is a defensible disposition on a petition where the trial court found the petitioner was the actual killer. However, the opinion contains no analysis of how the record of conviction established actual-killer status as a matter of law and does not cite People v. Lewis, the controlling Supreme Court authority on the prima facie inquiry decided months earlier, nor does it address whether Wende review even applies to postjudgment section 1170.95 appeals, a question then unsettled in the Courts of Appeal.
How this analysis was made · dispute it
record incompleteOpinion
Filed 11/5/21 P. v. Withers 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, D079180
Plaintiff and Respondent, v. (Super. Ct. No. SCD258141)
DESTIN LEE WITHERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Roderick W. Shelton, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, a jury convicted Destin Lee Withers of first degree murder (Pen. Code,1 § 187, subd. (a)) and being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The court found true the special circumstance 1 All further statutory references are to the Penal Code. of a previous conviction for murder (§ 190.2, subd. (a)(2)). Withers was sentenced to life in prison without the possibility of parole, plus six years. Withers appealed and this court affirmed the judgment in an unpublished opinion, People v. Withers, D071689 (Sept. 26, 2018).2 In 2020, Withers filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction, including this court’s prior opinion, and held a hearing. The court denied the petition by written order. The court found the record disclosed Withers was the actual killer and was thus ineligible for resentencing under section 1170.95. Withers 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 Withers the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the offense are fully set forth in our prior opinion. We will not repeat them here. (People v. Withers, supra, D071689.) 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 that was considered in evaluating the potential merits of this appeal. Whether the trial court correctly concluded that Withers was ineligible for resentencing under section 1170.95.
2 On our own motion, we take judicial notice of our records in case No. D071689. 2 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 Withers on this appeal. DISPOSITION The order denying Withers’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DATO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12