People v. Fowler CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD166210
- Trial judge
- Michael T. Smyth
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Cynthia Aaron, Buchanan
Analysis
The trial court denied Fowler's petition to reduce his robbery convictions to misdemeanors and resentence him under Penal Code section 1170.18, finding none of the counts were eligible. The Court of Appeal affirmed the order, finding no arguable issues for reversal after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.18“The court denied the petition, finding none of the robbery or attempted robbery counts was eligible for resentencing under section 1170.18.” | unclear | correct | unsure The appellate court conducted an independent review of the record pursuant to People v. Wende and Anders v. California, finding no arguable issues for reversal. The opinion does not specify the standard of review applied to the trial court's factual findings or legal conclusions, nor does it provide detailed reasoning for why the counts were ineligible, relying instead on the absence of arguable error in the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to identify arguable issues and the court to independently review the record when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who believes an appeal is wholly frivolous, requiring a brief identifying potential issues and court review.
The appellate opinion: sound with gaps — The opinion is procedurally sound in following the Wende/Anders protocol by identifying potential issues and stating that an independent review was conducted. However, it is substantively thin, as it fails to explain why the trial court's determination that the counts were ineligible under section 1170.18 was correct, offering no legal analysis or factual basis for the affirmance.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Charles Fowler's 2021 petition under Penal Code section 1170.18 (Proposition 47) to reduce his 2003 robbery and attempted robbery convictions to misdemeanors and be resentenced, finding none of the counts eligible. On appeal, appointed counsel filed a Wende brief, Fowler filed nothing, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.18 on the ground that robbery (§ 211) and attempted robbery (§§ 664/211) are not offenses eligible for Proposition 47 relief“The court denied the petition, finding none of the robbery or attempted robbery counts was eligible for resentencing under section 1170.18.” | unclear | correct | agree with court The appellate court did not state a standard of review; it conducted independent Wende/Anders review of the record and found no arguable issue. The result is plainly right: section 1170.18 applies only to specified theft and drug offenses (e.g., §§ 459.5, 473, 476a, 490.2, 496, 666 and certain Health and Safety Code violations), and second degree robbery, a serious and violent felony under §§ 667.5(c) and 1192.7(c), is not among them. Eligibility is a question of law on which the trial court could not have reached a different conclusion. |
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 frivolous should file a brief referring to anything in the record that might arguably support the appeal, to assist the court's independent review.
The appellate opinion: sound with gaps — The opinion correctly affirms because robbery and attempted robbery are categorically outside section 1170.18, and the court performed the independent record review Wende and Anders describe. It does not state the governing law on Prop 47 eligibility or address whether Wende review is even required in a postconviction appeal (compare People v. Serrano (2012) 211 Cal.App.4th 496), but the court's choice to review the record anyway could only benefit the appellant and does not affect the result.
Opinion
Filed 6/15/22 P. v. Fowler 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, D079972
Plaintiff and Respondent, v. (Super. Ct. No. SCD166210)
CHARLES BENJAMIN FOWLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2003, Charles Benjamin Fowler was convicted of 10 counts of second degree robbery (Pen. Code,1 § 211) and one count of attempted second degree robbery (§§ 664 & 211). He was sentenced under the three strikes law to consecutive 25 years to life on counts 1-10 and 12, plus five years for a prior 1 All further statutory references are to the Penal Code. serious felony conviction (§ 667, subd. (a)(1)) for an aggregate term of 280 years in prison. In 2021, Fowler filed a petition to reduce the conviction to misdemeanors and be resentenced pursuant to section 1170.18. The court denied the petition, finding none of the robbery or attempted robbery counts was eligible for resentencing under section 1170.18. Fowler 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 Fowler the opportunity to file his own brief on appeal, but he has not responded.2 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 possible issues that were considered in evaluating the potential merits of this appeal: 1. Did the trial court err in denying Fowler’s petition for resentencing pursuant to section 1170.18? 2. Did the trial court err in finding that none of the counts were eligible for resentencing under section 1170.18? 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 Fowler on this appeal.
2 The facts of the offenses are not relevant to the questions on this appeal. We will omit a statement of facts. 2 DISPOSITION The order denying Fowler’s petition for resentencing under section 1170.18 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
BUCHANAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12