People v. Torricellas CA4/1

California Court of Appeal · D079747 · 2022-05-10 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. CR72156
Trial judge: Howard H. Shore
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:51Z · confidence low

The trial court denied the defendant's second petition for resentencing under Penal Code section 1170.95 on the grounds that it was repetitive and the prior denial had been affirmed on appeal. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after a Wende/Anders review of the record.

Ruling reviewed	Standard	The court	The model
Denial of the second petition for resentencing under Penal Code section 1170.95 as repetitive. “In November 2021, the trial court denied the second petition on the grounds the petition was repetitive, and the earlier denial had been upheld on appeal.”	unclear	correct	agree with court The appellate court affirmed the denial, stating that after reviewing the entire record as required by Wende and Anders, it had not discovered any arguable issues for reversal on appeal. The court implicitly accepted the trial court's determination that the second petition was barred by the prior affirmed denial, despite the appellant's argument that new issues were raised.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when counsel cannot identify any, and the court must independently review the record.
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 the record and a court review.

The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework, correctly identifying the duty to review the record when counsel files a no-merit brief. However, it is substantively thin, as it dismisses the appellant's specific arguments regarding the law of the case and plea agreement violations without detailed legal analysis, relying solely on the conclusion that no arguable issues were found.

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

The trial court denied Theresa Torricellas's second Penal Code section 1170.95 resentencing petition as repetitive, because her first petition had been denied and that denial affirmed on appeal (D077815). On appeal, appointed counsel filed a Wende/Anders brief, the appellant filed a lengthy pro. per. submission, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of second section 1170.95 petition on the ground it was repetitive of a previously denied petition whose denial had been affirmed on appeal “In November 2021, the trial court denied the second petition on the grounds the petition was repetitive, and the earlier denial had been upheld on appeal.”	unclear	correct	unsure The court conducted only Wende/Anders independent review and did not articulate a standard of review or analyze the successive-petition question on the merits. Denying a duplicative petition that raises the same claim already finally adjudicated is generally defensible, but the opinion does not explain why the first denial was proper, does not state whether the second petition raised new facts or law, and does not address Senate Bill No. 775 (effective Jan. 1, 2022, while the appeal was pending), which other courts treated as permitting successive petitions. The record quoted is too thin to confirm the result beyond doubt.
Appellant's pro. per. claims (law of the case inapplicable, breach of 1985 plea agreement by use of plea-colloquy statements, ineffective assistance and fraud by prior counsel) do not present arguable issues “While Appellant raises many “issues,” she has not identified any arguable issues for reversal on appeal based on this record.”	unclear	correct	unsure The court summarily rejected the pro. per. contentions without analysis. Claims attacking trial counsel from 1985, the plea agreement, and counsel on the prior petition and appeal are largely outside the scope of an appeal from the denial of a second section 1170.95 petition and are more properly raised by habeas corpus, so the conclusion is plausible, but the opinion gives no reasoning the reader can verify.

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 no meritorious issues should file a brief referring to anything in the record that might arguably support the appeal to assist the court's review.
missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent-review procedures are constitutionally required only in a defendant's first appeal of right and do not apply to appeals from postconviction orders; the court should at least have acknowledged why it conducted Wende review here.

The appellate opinion: sound with gaps — The result is defensible because a second petition raising the same claim already finally rejected on appeal may properly be denied, and the court did conduct an independent record review. But the opinion skips any analysis of whether Wende review applies to a postconviction appeal (Serrano), does not explain why the successive petition was barred, and does not consider the effect of Senate Bill No. 775, which took effect while the appeal was pending and had been held to permit successive petitions.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 5/10/22 P. v. Torricellas 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, D079747

Plaintiff and Respondent, v. (Super. Ct. No. CR72156)

THERESA TORRICELLAS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed. Theresa Torricellas, in pro. per; and Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

In 1985, Appellant pleaded guilty to second degree murder (Pen. Code,1 § 187, subd. (a)) and admitted the use of a gun (§ 12022, subd. (a)). Appellant was sentenced to an indeterminate term of 16 years to life in prison.

1 All further statutory references are to the Penal Code. In 2019, Appellant filed a petition for resentencing pursuant to section 1170.95. After the appointment of counsel, the petition was summarily denied. Appellant appealed the denial of her petition, and this court affirmed the order in an unpublished opinion, People v. Torricellas, D077815 (June 25, 2021).2 Appellant’s petition for review was denied by the California Supreme Court on September 15, 2021 (S270274). In October 2021, Appellant filed a second petition for resentencing under section 1170.95. In November 2021, the trial court denied the second petition on the grounds the petition was repetitive, and the earlier denial had been upheld on appeal. Appellant filed a timely notice of appeal from the denial of the second petition. 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 Appellant the opportunity to file her own brief on appeal. Appellant has responded with a lengthy submission (61 pages of brief and 47 pages of exhibits). We will discuss the submission later in this opinion.3 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 2 We grant appellant’s request for judicial notice of this court’s record in case No. D077815.

3 The facts of the offense are not relevant to the resolution of this appeal. We will omit a statement of facts. 2 has identified the following possible issue which was considered in evaluating the potential merits of this appeal. Whether it was error for the trial court to deny the petition under section 1170.95 on the grounds a previous petition had been filed and denied. In her lengthy brief, Appellant argues many issues. She claims the law of the case doctrine did not apply here because she raised new issues in her second petition and her separate habeas petition. She contends the prosecution violated her 1985 plea agreement by using her statements, under oath at the time of the plea, in the review of her 2019 petition. She claims the statements she made were false and were only made to accomplish the guilty plea. Appellant claims her trial counsel, counsel on the first petition, and counsel in the earlier appeal were all ineffective and some committed fraud. While Appellant raises many “issues,” she has not identified any arguable issues for reversal on appeal based on this record. 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 Appellant on this appeal.

3 DISPOSITION The order denying Appellant’s second petition for resentencing under section 1170.95 is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12