People v. Readus CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCS184170
- Trial judge
- Michael T. Smyth
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, O'Rourke
Analysis
The trial court summarily denied Readus's petition for resentencing under Penal Code section 1170.18, determining that his robbery conviction was not eligible for reduction to a misdemeanor. The Court of Appeal affirmed the denial, finding no arguable issues for reversal on appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.18“Robbery convictions cannot be resentenced as misdemeanors under that statute as a matter of law.” | de novo | correct | agree with court The court correctly identified that Penal Code section 1170.18 (Proposition 47) does not apply to robbery convictions, as robbery is not a 'wobbler' offense eligible for reduction to a misdemeanor under that specific statute. The appellate court affirmed the trial court's legal conclusion that the petition was properly denied because the underlying offense was ineligible for resentencing under the cited statute. |
Failure to appoint counsel before denying the petition“Did the trial court prejudicially err in failing to appoint counsel before denying the petition?” | de novo | not reached | unsure The appellate court noted this issue was raised by counsel and the appellant but did not explicitly analyze it in the discussion section, instead focusing on the lack of arguable issues regarding the eligibility of the robbery conviction. The court affirmed the order without addressing the appointment of counsel issue in detail, likely because the legal ineligibility of the offense rendered the procedural issue moot or non-prejudicial. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed counsel to review the record for arguable issues when no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying potential issues and the court to review the record independently.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of Wende and Anders review, correctly identifying that no arguable issues exist regarding the legal eligibility of a robbery conviction for resentencing under Proposition 47. However, it is a 'sound with gaps' opinion because it fails to explicitly address the appellant's argument regarding the failure to appoint counsel, relying instead on the broader finding of no arguable issues.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court summarily denied, without appointing counsel, Pierre Readus's Penal Code section 1170.18 (Proposition 47) petition to resentence his 2004 robbery conviction as a misdemeanor, finding robbery ineligible for relief. On appeal, after appointed counsel filed a Wende brief and Readus filed a one-page supplemental statement arguing the robbery involved less than $950 and that counsel should have been appointed, the Court of Appeal reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.18 (Proposition 47) petition on the ground that a robbery conviction is not eligible for reduction to a misdemeanor“Robbery convictions cannot be resentenced as misdemeanors under that statute as a matter of law.” | de novo | correct | agree with court Section 1170.18 permits resentencing only for the specific theft- and drug-related offenses that Proposition 47 redefined as misdemeanors (e.g., sections 459.5, 473, 476a, 490.2, 496, 666; Health & Saf. Code sections 11350, 11357, 11377). Robbery under section 211 is not among them and remains a straight felony under section 213, not a wobbler, so the $950 value of the property taken is legally irrelevant. The trial court was correct as a matter of law and the appellate court's conclusion follows directly from the statute's text. |
Summary denial of the petition without appointing counsel for the petitioner“The court summarily denied the petition without appointing counsel, on the grounds the robbery count was not eligible for resentencing under section 1170.18.” | unclear | correct | agree with court Where a petition is facially ineligible as a matter of law, there is no factual dispute or resentencing stage at which counsel could assist, and any error in not appointing counsel would be harmless because no counsel could make robbery an eligible offense. The opinion does not expressly analyze this issue or cite authority on the right to counsel in Proposition 47 proceedings, but the result is defensible. The published authority recognizing a right to counsel at the resentencing stage (People v. Rouse) does not extend to a threshold eligibility determination resolved against the petitioner as a matter of law. |
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 wholly frivolous 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 — Independent Wende review is not constitutionally required in appeals from postconviction orders such as resentencing petitions; when counsel finds no issues the court may dismiss unless the defendant files a supplemental brief raising issues. The court here nonetheless conducted full Wende review, which was more favorable to the defendant and did not affect the result.
- missed: People v. Rouse (2016) 245 Cal.App.4th 292 — A Proposition 47 petitioner has a right to appointed counsel at the resentencing stage after eligibility is established; the opinion did not address this authority when disposing of the claim that counsel should have been appointed, although it is distinguishable because the petition was ineligible on its face.
The appellate opinion: sound with gaps — The result is plainly correct because robbery is not an offense covered by section 1170.18 and is not a wobbler, so the trial court had to deny the petition regardless of the property's value. The opinion is cursory, however: it does not cite the statutory text or any authority on the ineligibility of robbery, does not explain why the failure to appoint counsel was not error or was harmless, and does not address Serrano's holding on the scope of Wende review in postconviction appeals.
Opinion
Filed 7/8/22 P. v. Readus 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, D080063
Plaintiff and Respondent, v. (Super. Ct. No. SCS184170)
PIERRE RENEE READUS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed. Pierre Readus, in pro. per.; and Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This appeal is from the denial of a post-judgment petition for resentencing of a robbery conviction under Penal Code 1 section 1170.18 1 All further statutory references are to the Penal Code unless otherwise stated. (Proposition 47). Robbery convictions cannot be resentenced as misdemeanors under that statute as a matter of law. In 2004, Pierre Renee Readus pleaded guilty to robbery (§ 211) and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)). Readus was granted probation, but after a series of probation revocations, in 2005, he was sentenced to prison for two years eight months. In 2021, Readus filed a petition for resentencing under section 1170.18 to resentence his robbery conviction as a misdemeanor. The court summarily denied the petition without appointing counsel, on the grounds the robbery count was not eligible for resentencing under section 1170.18. Readus 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 been unable 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 Readus the opportunity to file his own brief on appeal. Readus has responded, filing a one-page statement. We will discuss his submission below.
DISCUSSION2 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 two issues that were considered in evaluating the potential merits of this appeal: 1. Is a robbery conviction eligible for reduction to a misdemeanor under section 1170.18?
2 The facts of the prior crimes are not relevant to the resolution of this appeal. 2 2. Did the trial court prejudicially err in failing to appoint counsel before denying the petition? In his one-page response, Readus asserts he took less than $950 in the robbery; thus, he should have his robbery conviction reduced to a misdemeanor. He also asserts the court erred in denying appointed counsel. Readus’s supplemental brief does not raise any arguable issues for reversal on appeal. On this record, Readus does not raise any arguable issue that robbery is a “wobbler” offense that could legally be reduced to a misdemeanor. 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 Readus on this appeal. DISPOSITION The order denying Readus’s petition for resentencing under section 1170.18 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12