People v. McGowan CA4/1

California Court of Appeal · D080396 · 2022-08-30 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD209770, SCD221451
Trial judge: Michael S. Groch
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), O'Rourke, William S. Dato

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:45Z · confidence low

The trial court denied McGowan's petition for resentencing under Penal Code section 1170.22, finding the statute inapplicable to his case. The Court of Appeal affirmed the denial after an independent review of the record pursuant to People v. Wende.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.22 “The trial court denied the resentencing petition finding section 1170.22 was not applicable to McGowan’s case.”	unclear	correct	unsure The appellate court affirmed the trial court's order, stating it had reviewed the entire record and found no arguable issues for reversal. The opinion does not provide specific legal reasoning for why section 1170.22 was inapplicable, but the affirmation implies the trial court's determination was correct.

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 file a brief identifying potentially meritorious issues when they believe an appeal is frivolous.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing appeals where counsel identifies no arguable issues. However, it is substantively thin because it provides no legal analysis explaining why section 1170.22 was inapplicable, relying solely on the conclusion that no errors were found in the record.

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 San Diego Superior Court denied Weusi McGowan's March 2022 petition for resentencing under Penal Code section 1170.22, finding that statute inapplicable to his 2009 convictions for robbery (with great bodily injury, deadly weapon, strike and serious felony prior findings), assault on a public official, and assault on a juror. On appeal, appointed counsel filed a Wende/Anders brief, McGowan 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 petition for resentencing under Penal Code section 1170.22 on the ground the statute does not apply to McGowan's convictions (no prima facie case for relief) “The trial court denied the resentencing petition finding section 1170.22 was not applicable to McGowan’s case.”	unclear	correct	agree with court The court conducted independent Wende/Anders review rather than applying a stated standard. McGowan's convictions were for robbery with weapon and injury enhancements, assault on a public official, and assault on a juror; nothing in the opinion suggests any of these offenses falls within section 1170.22's resentencing scheme, and neither counsel nor McGowan identified an argument that it does. On this record the affirmance appears correct, though the opinion does not explain what section 1170.22 covers or why it is inapplicable, so the conclusion cannot be fully verified from the opinion alone.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the Court of Appeal independently reviews the entire record for arguable error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacks arguable merit should identify anything in the record that might arguably support the appeal to assist the court's review.

The appellate opinion: sound with gaps — The opinion follows standard Wende/Anders procedure and reaches a defensible result, since none of McGowan's offenses plausibly fits section 1170.22 and no one identified a contrary argument. It does not, however, explain the scope of section 1170.22 or address the published authority questioning whether Wende review applies at all to appeals from postjudgment resentencing orders (e.g., People v. Serrano (2012) 211 Cal.App.4th 496; People v. Cole (2020) 52 Cal.App.5th 1023), which are not binding on this division but were a live issue at the time.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 8/30/22 P. v. McGowan 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, D080396

Plaintiff and Respondent, v. (Super. Ct. Nos. SCD209770, SCD221451) WEUSI MCGOWAN, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2009, Weusi McGowan entered into a plea agreement which completed the resolution of two cases. In case No. SCD209770, he pleaded guilty to robbery (Pen. Code,1 § 211) and admitted personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a deadly weapon 1 All further statutory references are to the Penal Code. (§ 12022, subd. (b)(1)). McGowan admitted a strike prior (§ 667, subds. (b)-(i)) and two serious felony priors (§ 667, subd. (a)(1)). The parties stipulated to a determinate term of 28 years and eight months in prison. In case No. SCD221451, McGowan pleaded guilty to assault on a public official (§ 217.1, subd. (a)) and assault on a juror (§ 241.7). McGowan was sentenced consecutively to the prior case for a total term of 31 years and four months. In March 2022, McGowan filed a petition for resentencing under section 1170.22. The trial court denied the resentencing petition finding section 1170.22 was not applicable to McGowan’s case. McGowan 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 McGowan the opportunity to file his own brief on appeal, but he has not responded. The facts of the multiple offenses are not relevant to the resolution of this appeal. Accordingly, we will not include a statement of facts in this opinion. 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 possible issue that was considered in evaluating the potential merits of this appeal: Whether the trial court erred in finding 2 McGowan’s petition for resentencing did not state a prima facie case for relief. 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. DISPOSITION The order denying McGowan’s petition for resentencing under section 1170.22 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DATO, J.

Cites, in this corpus

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