P. v. Jackson CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD240198
- Trial judge
- Dwayne K. Moring
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), O'Rourke, McINTYRE
Analysis
The trial court denied Jackson's motion to modify his stipulated sentence, asserting it lacked discretion to alter a plea bargain agreement. The Court of Appeal affirmed the judgment after conducting an independent review of the record and finding no reasonably arguable appellate issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to modify sentence“the court found that there had been a stipulated sentence pursuant to a plea bargain so it did not have "discretion to recall or modify the sentence"” | unclear | not reached | unsure The appellate court did not explicitly analyze the trial court's legal basis for denying the motion, but rather stated it found no reasonably arguable appellate issue after reviewing the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to conduct an independent review of the record to identify arguable issues when no issues are raised.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying possible but not arguable issues and request leave to withdraw.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the standard Wende/Anders protocol for reviewing appeals where counsel finds no arguable issues. However, it is a 'sound with gaps' analysis because it fails to address the specific legal argument regarding the trial court's lack of discretion to modify a stipulated sentence, relying solely on the absence of arguable issues in the record.
How this analysis was made · dispute it
unusual dispositionAfter Daniel Jackson pleaded guilty to petty theft with a prior for a stipulated two-year local sentence, the trial court declined to act on his motion to withdraw the plea and later ruled it lacked discretion to recall or modify the stipulated sentence despite his claimed terminal illness. On appeal, appointed counsel filed a Wende brief, Jackson filed nothing on his own behalf, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of (refusal to act on) motion to modify or recall the stipulated sentence on medical grounds, on the ground the court lacked discretion to alter a plea-bargained sentence“the court found that there had been a stipulated sentence pursuant to a plea bargain so it did not have "discretion to recall or modify the sentence" and took "no action at this time."” | unclear | correct | agree with court A court cannot unilaterally alter a material term of a negotiated plea, including a stipulated sentence, without the prosecution's consent, so the trial court's view that it lacked discretion to modify the sentence to probation with home detention is legally sound. The appellate court conducted the independent review Wende requires and identified no arguable issue; nothing in the quoted record suggests one. The opinion does not discuss whether an order declining to recall a sentence is even appealable (People v. Chlad), but that omission does not affect the correctness of affirmance. |
Court's decision to take no action on the motion to withdraw the guilty plea“In June 2012 the court noted that it had read the motion, but stated it "takes no action at this time."” | unclear | not reached | unsure The appellate court mentioned this procedural history but did not separately analyze it; counsel did not identify it as a possible issue. A challenge to the validity of a plea would also require a certificate of probable cause under Penal Code section 1237.5, which the opinion does not mention, so the absence of analysis is understandable in a Wende review but leaves the point unaddressed. |
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 to determine whether any arguable issue exists.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- missed: People v. Chlad (1992) 6 Cal.App.4th 1719 — An order denying a defendant's motion to recall a sentence under Penal Code section 1170, subdivision (d) is not an appealable postjudgment order because the defendant has no right to request recall and the order does not affect his substantial rights.
The appellate opinion: sound with gaps — The opinion correctly applies the Wende/Anders procedure, and the trial court's conclusion that it could not modify a stipulated plea-bargained sentence is legally sound, so the affirmance is defensible. It does not, however, address whether the order declining to recall the sentence was appealable at all, or whether any plea-related challenge was barred for lack of a certificate of probable cause, which a more complete opinion would have noted.
Opinion
Filed 6/13/13 P. v. Jackson 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, D062614
Plaintiff and Respondent, v. (Super. Ct. No. SCD240198)
DANIEL JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed.
John L. Dodd & Associates and John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In April 2012 defendant Daniel Jackson entered a guilty plea to petty theft with a prior in exchange for a stipulated sentence of two years to be served locally. A prior grant of probation was revoked. In May 2012 Jackson filed a motion to withdraw his guilty plea. In June 2012 the court noted that it had read the motion, but stated it "takes no action at this time."
In July 2012 Jackson filed a motion seeking to modify his sentence due to his "terminal illness and need for adequate medical care." He requested probation with home arrest and GPS monitoring. He had been diagnosed with HIV and hepatitis C. In August 2012 the court found that there had been a stipulated sentence pursuant to a plea bargain so it did not have "discretion to recall or modify the sentence" and took "no action at this time."
Jackson filed a timely notice of appeal and asks us to examine the record and determine if there are any issues deserving of further briefing. (People v. Wende (1979)
25 Cal.3d 436 (Wende).) We have done so, find none, and hence affirm the judgment.
FACTUAL BACKGROUND
On June 1, 2011, officers observed Jackson at an intersection, appearing "nervous and hyperactive" and saw that "his face was shiny and wet." He was searched and the officers found four grams of marijuana and 0.2 grams of methamphetamine. He also appeared to be under the influence of a controlled substance.
On April 5, 2012, Jackson took an item from a Walmart without paying.
DISCUSSION
On appeal, Jackson's appointed appellate counsel filed an opening brief pursuant to Wende requesting that we conduct an independent review of the record to determine whether there are any arguable appellate issues. (Wende, supra, 25 Cal.3d 436.) Under Anders v. California (1967) 386 U.S. 738, he listed as a possible but not arguable issue 2 whether the court erred in denying his motion to modify his sentence. We granted Jackson permission to file a brief on his own behalf. He has not responded.
We have examined the record pursuant to Wende and considered the possible issue referred to by appointed counsel. We find no reasonably arguable appellate issue.
Competent counsel has represented Jackson on this appeal.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12