People v. Glenn CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD290416
- Trial judge
- Robert J. Trentacosta
- Outcome
- affirmed — Request for judicial notice granted. Affirmed.
- Area
- criminal
- Panel
- William S. Dato (author), Richard D. Huffman, Sr., Joan K. Irion
Analysis
The trial court denied probation and sentenced the defendant to a four-year middle term in county jail for furnishing fentanyl. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of probation and imposition of a four-year middle term sentence“Here, consistent with section 17.2, the court fully considered but rejected Glenn’s request for probation, deeming that placement inappropriate given the circumstances of the case.” | de novo | correct | agree with court agree with court |
Denial of presumptive lower term sentencing based on age“Glenn was not entitled to presumptive lower term sentencing under recent amendments to the Determinate Sentencing Law despite his relative youth because he was two months past his twenty-sixth birthday at the time of the offense.” | de novo | correct | agree with court agree with court |
Scope of appeal limited to post-plea matters due to lack of certificate of probable cause“Because Glenn did not request a certificate of probable cause, he may not raise questions going to the validity of his plea.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appointed appellate counsel when no issues are raised.
- relied: People v. Kelly (2006) 40 Cal.4th 106 — Clarifies the scope of independent review required in Wende cases.
- relied: People v. Mendez (1999) 19 Cal.4th 1084 — Establishes that a certificate of probable cause is required to challenge the validity of a guilty plea.
- relied: People v. Conatser (2020) 53 Cal.App.5th 1223 — Discusses the structure of split sentences under Penal Code section 1170, subdivision (h)(5).
- relied: People v. Garcia (2018) 24 Cal.App.5th 314 — Clarifies that listing Anders issues is not required under California's Wende procedure.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to identify any issues that might arguably support an appeal.
The appellate opinion: sound — The court correctly applied the Wende standard to review the record independently and found no arguable issues. It accurately applied the statutory requirements for sentencing, including the age limit for presumptive lower terms and the scope of appeal without a certificate of probable cause.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Glenn's guilty plea to furnishing fentanyl (Health & Saf. Code, § 11352, subd. (a)), denied probation, imposed a split four-year middle term in county jail with the last year on mandatory supervision, and later corrected presentence custody credits. On appeal, appointed counsel filed a Wende brief, the Court of Appeal independently reviewed the record, found no arguable issue, granted judicial notice of the credit correction, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of probation“Here, consistent with section 17.2, the court fully considered but rejected Glenn’s request for probation, deeming that placement inappropriate given the circumstances of the case.” | unclear | correct | agree with court The opinion does not state a standard but a probation denial is reviewed for abuse of discretion; the trial court articulated a case-specific reason (foreseeable lethal consequences of furnishing fentanyl-laced heroin), and the court correctly observed that section 17.2 requires consideration of, not acceptance of, less restrictive alternatives (§ 17.2, subd. (c)). |
Selection of the four-year middle term“The court selected the middle term in the triad because it reflected “the seriousness of the conduct in this case” while offering Glenn a chance at rehabilitation.” | unclear | correct | agree with court The middle term is the default under section 1170, subdivision (b), the sentence conformed to the plea agreement, and the court correctly noted the youth-based lower-term presumption of section 1170, subdivision (b)(6)(B) did not apply because Glenn was over 26 at the time of the offense (§ 1016.7, subd. (b)). |
Imposition of split sentence with one year of mandatory supervision under section 1170, subdivision (h)(5)(B)“Consistent with section 1170, subdivision (h)(5), the court entered a split sentence with mandatory supervision for the last year of the suspended term.” | unclear | correct | agree with court Health and Safety Code section 11352 is punishable under section 1170, subdivision (h), and subdivision (h)(5) authorizes suspension of a concluding portion of the term for mandatory supervision; the appellate court's reliance on Conatser for the general framework is apt. |
Award of presentence custody credits (as corrected post-appeal under section 1237.1)“In August 2022, the court granted his request and updated the abstract of judgment to reflect the additional credit.” | unclear | correct | agree with court Section 2900.5, subdivision (a) entitles a defendant to credit for time in a court-ordered residential treatment facility; the trial court granted the additional 123 days, so no live credit issue remained and judicial notice of the amended abstract was properly taken under Evidence Code sections 452 and 459. |
Timeliness of the felony complaint and scope of appeal without certificate of probable cause“Because Glenn did not request a certificate of probable cause, he may not raise questions going to the validity of his plea.” | de novo | correct | agree with court The three-year limitations period of section 801 applies to offenses punishable under section 1170, subdivision (h), so a complaint filed two years after the offense was timely; under Mendez and section 1237.5, absent a certificate the appeal is limited to sentencing and post-plea matters. |
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 error.
- relied: People v. Kelly (2006) 40 Cal.4th 106 — Describes the scope of the appellate court's independent review and the content of a Wende opinion.
- relied: People v. Mendez (1999) 19 Cal.4th 1084 — Without a certificate of probable cause under section 1237.5, a defendant may not challenge the validity of a guilty plea but may raise sentencing and post-plea issues.
- relied: People v. Garcia (2018) 24 Cal.App.5th 314 — California's Wende procedure does not require counsel to list Anders issues that might arguably support the appeal.
- relied: People v. Conatser (2020) 53 Cal.App.5th 1223 — General framework for split sentences and mandatory supervision under section 1170, subdivision (h)(5).
- relied: Anders v. California (1967) 386 U.S. 738 — Federal constitutional baseline for appellate counsel's no-merit brief and court review in indigent criminal appeals.
The appellate opinion: sound — The court conducted the required independent Wende review, correctly limited the appeal's scope under Mendez and section 1237.5, and addressed the plausible sentencing issues (limitations period, lower-term presumption, section 17.2, split sentence, credits) with accurate statutory citations. Nothing in the opinion rests on a misreading of law, and the credit correction mooted the only concrete post-plea issue.
Opinion
Filed 1/24/23 P. v. Glenn 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, D079998
Plaintiff and Respondent, v. (Super. Ct. No. SCD290416)
ISAIAH LEE GLENN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Request for judicial notice granted. Affirmed. R. Chris Lim, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Following the overdose death of Stewart H., Defendant Isaiah Lee Glenn pleaded guilty to furnishing fentanyl in violation of Health & Safety Code section 11352, subdivision (a). The trial court denied probation and imposed a split four-year middle term. Glenn appealed, and appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Glenn was apprised of his right to file a supplemental brief but did not do so. Independently reviewing the entire record (People v. Kelly (2006) 40 Cal.4th 106, 119), we find no arguable issues and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 8, 2019, Glenn acquired fentanyl from codefendant Brittany Calvert and gave some to Stewart.1 Glenn and Stewart smoked the substance together in a parked van and fell asleep. Glenn awoke the next morning and returned to his apartment around 8:00 a.m. When he left, Stewart remained sleeping and was snoring. When Glenn returned around 10:30 a.m., he found Stewart hunched over the backseat, unresponsive. Glenn called 911, and his cell phone records later revealed his role in procuring and furnishing the drug. Stewart’s death was ruled an accident caused by acute fentanyl intoxication. The San Diego County District Attorney charged Glenn in June 2021 with involuntary manslaughter by unlawful act (Pen. Code, § 192, subd. (b), count 1) and furnishing a controlled narcotic (Health & Saf. Code, § 11352, subd. (a), count 2).2 In November 2021, Glenn pleaded guilty to count 2, and count 1 was dismissed. In January 2022, the court sentenced Glenn to a four-year middle term in county jail. (See § 1170, subd. (h)(2).) Glenn had requested probation, but the court concluded this was “just simply not a probation case” because furnishing heroin laced with fentanyl had “unfortunate, but imminently 1 Because Glenn pleaded guilty soon after the felony complaint was filed, we draw case-related facts from the probation report. 2 Further undesignated statutory references are to the Penal Code. 2 foreseeable consequences.” The court selected the middle term in the triad because it reflected “the seriousness of the conduct in this case” while offering Glenn a chance at rehabilitation. It ordered the last year of the four-year jail term suspended under section 1170, subdivision (h)(5)(B) and specified terms of mandatory supervision. Glenn was ordered to pay a $300 restitution fine and victim restitution in an amount to be determined. After Glenn filed a notice of appeal, appellate counsel filed a motion before the trial court to correct the calculation of presentence custody credits. (§ 1237.1.) The motion sought an additional 123 days of presentence custody credit for time Glenn spent at a court-mandated residential treatment facility. (See § 2900.5, subd. (a).) In August 2022, the court granted his request and updated the abstract of judgment to reflect the additional credit.3 DISCUSSION Appointed appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but asked this court to review the entire record for error in accordance with Wende, supra, 25 Cal.3d 436.4 Independently reviewing the record, we discern no reasonably arguable appellate issue. The felony complaint filed two years after the offense was timely. (§ 801 [three-year limitations period for offenses punishable under § 1170, 3 We grant Glenn’s request for judicial notice of the court order awarding him 123 additional days of presentence custody credit and the amended abstract of judgment. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) 4 Counsel did not identify any issues under Anders v. California (1967) 386 U.S. 738 (Anders) that “might arguably support the appeal” (id. at p. 744), but a listing of Anders issues is not required by California’s Wende procedure. (See People v. Garcia (2018) 24 Cal.App.5th 314, 324.) 3 subd. (h)]; see Health & Saf. Code, § 11352, subd. (a) [specifying punishment under Pen. Code, § 1170, subd. (h)].) Because Glenn did not request a certificate of probable cause, he may not raise questions going to the validity of his plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1088 (Mendez); § 1237.5; Cal. Rules of Court, rule 8.304(b).) Accordingly, his notice of appeal challenges only “the sentence or other matters occurring after the plea that do not affect the validity of the plea.” A certificate of probable cause is not required to challenge the sentence or post-plea matters. (Mendez, supra, 19 Cal.4th at p. 1088.) But the record discloses no reasonably arguable appellate issue concerning sentencing. In accordance with the plea agreement, the trial court sentenced Glenn to four years in county jail, selecting the middle term. (Health & Saf. Code, § 11352, subd. (a).) Consistent with section 1170, subdivision (h)(5), the court entered a split sentence with mandatory supervision for the last year of the suspended term. (See generally, People v. Conatser (2020) 53 Cal.App.5th 1223, 1227.) After the notice of appeal was filed, the court granted Glenn’s request to amend the award of presentence custody credits to account for time spent in a court ordered rehabilitation program prior to sentencing. Glenn was not entitled to presumptive lower term sentencing under recent amendments to the Determinate Sentencing Law despite his relative youth because he was two months past his twenty-sixth birthday at the time of the offense. (See §§ 1170, subd. (b)(6)(B), 1016.7, subd. (b).) Effective January 1, 2023, courts must consider alternatives to incarceration— including probation—under new legislation, consistent with the express legislative intent “that the disposition of any criminal case use the least restrictive means available.” (§ 17.2; see Stats. 2022, ch. 775, § 2 (Assem. Bill No. 2167).) But nothing in that legislation compels a trial court to accept a 4 less restrictive option. (Stats. 2022, ch. 775, § 1(e); see § 17.2, subd. (c).) Here, consistent with section 17.2, the court fully considered but rejected Glenn’s request for probation, deeming that placement inappropriate given the circumstances of the case. Having reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, we find no reasonably arguable appellate issue. Glenn has been adequately represented by counsel in this appeal. DISPOSITION The judgment is affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Kelly S133114 · 2006-11-27
- People v. Mendez No. S066175 · 1999-01-14
- People v. Wende Crim. 20851 · 1979-10-12