People v. George CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD275691
- Trial judge
- Timothy R. Walsh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court denied George's petition to recall and resentence his three strikes sentence under Penal Code section 1170.126, finding his third strike was a violent offense and thus ineligible for resentencing. The Court of Appeal affirmed the order, finding no arguable issues for reversal after a Wende/Anders review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall and resentence under Penal Code section 1170.126“The trial court denied the petition, finding George’s third strike was a violent offense and he was thus ineligible for resentencing.” | unclear | not reached | unsure The opinion is a Wende/Anders review where the court states it has reviewed the record and found no arguable issues for reversal. It does not explicitly state the standard of review (e.g., de novo or abuse of discretion) applied to the trial court's eligibility determination, nor does it provide a substantive analysis of the statutory interpretation of 'violent offense' under section 1170.126. It simply affirms the order based on the lack of arguable issues. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified by the defendant.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by the court when counsel files a no-merit brief.
The appellate opinion: sound with gaps — The opinion relies solely on the Wende/Anders framework to affirm the judgment. It does not address the specific statutory argument regarding whether the third strike qualifies as a 'violent offense' under section 1170.126, nor does it cite any authority supporting the trial court's eligibility determination. The reasoning is procedural rather than substantive.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Marvin George's petition under Penal Code section 1170.126 to recall his three strikes sentence, finding his third strike (driving under the influence causing injury with an admitted great bodily injury enhancement) was a violent felony making him ineligible for resentencing. On appeal, appointed counsel filed a Wende brief, George filed a supplemental brief, and the Court of Appeal reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall and resentence under Penal Code section 1170.126 on the ground that the current (third strike) offense is a violent felony“The trial court denied the petition, finding George’s third strike was a violent offense and he was thus ineligible for resentencing.” | unclear | correct | agree with court George admitted a section 12022.7, subdivision (a) great bodily injury enhancement attached to his DUI-causing-injury conviction. A felony in which the defendant inflicts great bodily injury as charged and proved under section 12022.7 is a violent felony (§ 667.5, subd. (c)(8)) and a serious felony (§ 1192.7, subd. (c)(8)), and section 1170.126, subdivision (e)(1) excludes from Proposition 36 relief any inmate whose current sentence was imposed for a serious or violent felony. On the facts recited, the trial court's ineligibility finding is correct, although the appellate opinion does not cite these provisions or explain the statutory basis. |
Rejection of the contentions in George's supplemental brief (invalidity of the great bodily injury enhancement, that his strike is not violent, and ineffective assistance of trial counsel)“He contends the great bodily injury enhancement is invalid, his current strike is not violent and that his trial counsel was ineffective. We have considered his list of possible issues and find none raises an arguable issue for reversal on appeal.” | unclear | correct | agree with court An appeal from the denial of a section 1170.126 petition does not reopen the underlying judgment; challenges to the admitted enhancement and to trial counsel's performance in the 2018 plea proceedings are outside the scope of this appeal, and the prior appeal (D076506) affirmed the judgment with the prison prior stricken. The claim that the strike is not violent fails because the admitted section 12022.7 enhancement brings the offense within section 667.5, subdivision (c)(8). The court's summary treatment is thin but reaches the correct result. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the entire record for arguable issues before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacking in 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 result is correct because an admitted section 12022.7 great bodily injury enhancement makes the current offense a violent felony under section 667.5, subdivision (c)(8), rendering George ineligible under section 1170.126, subdivision (e)(1). The opinion, however, never cites those provisions or explains why the trial court's ineligibility finding was right, and it does not address whether Wende review is even required in a postconviction appeal under People v. Serrano (2012) 211 Cal.App.4th 496, although conducting the review was more generous to George, not prejudicial.
Opinion
Filed 9/7/22 P. v. George 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, D080044
Plaintiff and Respondent, v. (Super. Ct. No. SCD275691)
MARVIN JAMES GEORGE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Marvin J. George, in pro. per; and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2018, Marvin James George pleaded guilty to two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subds. (a) and (b)) and one count of unlawful driving (Veh. Code, § 20001, subd. (a)). George admitted a serious bodily injury enhancement (Pen. Code,1 § 12022.7, subd. (a)), a prison prior (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)) and two prior strike convictions (§ 667, subds.(b)-(i)). George was sentenced to an indeterminate term of 25 years to life plus a determinate term of 14 years in prison. In 2019, the case was remanded to the trial court to permit the court to consider whether to dismiss the serious felony prior. On remand, the court declined to strike the prior. George appealed and this court ordered the prison prior enhancement stricken and otherwise affirmed the judgment. (People v. George (Jan. 13, 2020, D076506) [nonpub. opn.].) George filed several habeas petitions, all of which were denied. He thereafter filed a petition to recall and resentence his three strikes sentence under section 1170.126. The trial court denied the petition, finding George’s third strike was a violent offense and he was thus ineligible for resentencing. George 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 George the opportunity to 1 All further statutory references are to the Penal Code unless otherwise specified.
2 file his own brief on appeal. George has responded with a supplemental brief which we will discuss 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 an issue that was considered in evaluating the potential merits of this appeal: Whether the trial court erred in denying George’s petition for resentencing. In his supplemental brief, George raises a number of “issues,” most of which are outside this record or relate to his trial. He contends the great bodily injury enhancement is invalid, his current strike is not violent and that his trial counsel was ineffective. We have considered his list of possible issues and find none raises an arguable issue for reversal on appeal. 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 George on this appeal.
2 It is not necessary to review the facts of the offense in order to resolve this appeal. We will omit the traditional statement of facts. 3 DISPOSITION The order denying George’s petition for resentencing under section 1170.126 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12