People v. Cervantes CA4/1

California Court of Appeal · D081063 · 2023-05-08 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCE403126
Trial judge: Kenneth K. So
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:35Z · confidence low

The trial court resentenced the defendant to 14 years in prison following a remand for legislative changes, selecting the middle term for the assault conviction and correcting custody credits. The Court of Appeal affirmed the judgment as modified, finding no arguable issues for reversal after an independent review of the record.

Ruling reviewed	Standard	The court	The model
Resentencing to 14 years in prison (middle term selection and custody credit correction) “On remand, the trial court selected the middle term sentence for the assault charge, thereby reducing Cervantes’s term to 14 years in prison. Custody credits were corrected.”	abuse of discretion	not reached	agree with court The appellate court did not review the merits of the trial court's resentencing decision because the Wende review found no arguable issues for reversal. The court affirmed the judgment as modified without addressing the specific arguments raised by the defendant regarding further sentence reductions or fine adjustments.
Failure to adjust section 1202.4, subdivision (b) fine downward “Whether the trial court erred in failing to adjust the section 1202.4, subdivision (b) fine downward in light of the reduction in the prison term.”	unclear	not reached	unsure The court identified this as a potential issue raised by appellate counsel but concluded that the defendant's brief did not raise any arguable issues for reversal. The court did not provide specific legal analysis on the fine adjustment but affirmed the judgment based on the Wende review.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying arguable issues or, if none exist, to request the court to independently review the record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by the appellate court when counsel files a no-merit brief.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a no-merit brief. However, it is a 'sound with gaps' opinion because it fails to explicitly address the specific statutory arguments raised by the defendant in his supplemental brief, relying instead on a general statement that no arguable issues were found.

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

On remand after a prior appeal, the trial court resentenced Cervantes to the middle term on his assault with a deadly weapon conviction, reducing his aggregate sentence from 16 to 14 years and correcting custody credits. Appointed counsel filed a Wende brief, Cervantes filed a supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed the judgment as modified.

Ruling reviewed	Standard	The court	The model
Resentencing on remand: selection of the middle term for the assault conviction (14-year aggregate) rather than a further reduction “On remand, the trial court selected the middle term sentence for the assault charge, thereby reducing Cervantes’s term to 14 years in prison.”	abuse of discretion	correct	agree with court Counsel's first Anders issue was framed as whether the court abused its discretion by failing to further reduce the sentence. The opinion gives no analysis of the resentencing hearing, but selection of the middle term after the remand for recent legislative changes (consistent with amended section 1170, subdivision (b)) is a facially proper exercise of discretion, and nothing in the opinion suggests an improper factor. Without any description of the hearing, I cannot verify independently, but the conclusion is defensible.
Failure to adjust the section 1202.4, subdivision (b) restitution fine downward after the prison term was reduced “Whether the trial court erred in failing to adjust the section 1202.4, subdivision (b) fine downward in light of the reduction in the prison term.”	unclear	correct	unsure The restitution fine amount is discretionary within the statutory range, and nothing requires a proportional reduction when a term is shortened unless the court originally used the statutory formula and the record so indicates. The opinion does not state the fine amount or how it was calculated, so the issue cannot be fully evaluated, but the court's implicit conclusion that it is not arguable is plausible on a Wende review.
Rejection of Cervantes's supplemental contentions that all enhancements should be dismissed under legislative enactments not before the trial court “Cervantes’s brief does not raise any arguable issues for reversal on appeal in light of the record.”	unclear	correct	unsure The court summarily characterized the supplemental brief as unclear and not raising arguable issues. The enhancements here (section 12022.7 GBI, section 667(a)(1) serious felony prior, and a strike) are not the type invalidated by recent legislation such as section 1172.75, so dismissal was not mandatory. However, the court did not explain which enactments Cervantes invoked or why section 1385, subdivision (c) (effective January 1, 2022, before the resentencing) would not apply, leaving the analysis thin.

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 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. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal, the Court of Appeal's opinion must set forth the contentions personally raised by the defendant in a supplemental brief and explain why they fail; the opinion here only cursorily describes and dismisses Cervantes's contentions without citing Kelly or explaining the reasons.

The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure and reached a defensible result, since the middle-term resentencing and the enhancements at issue present no obvious error. But the opinion offers no analysis of either Anders issue or of Cervantes's supplemental claims (including whether section 1385, subdivision (c) was considered at resentencing), and does not cite People v. Kelly, which governs how supplemental contentions must be addressed.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 5/8/23 P. v. Cervantes 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, D081063

Plaintiff and Respondent, v. (Super. Ct. No. SCE403126)

EMILIO ORTIZ CERVANTES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Emilio Ortiz Cervantes, in pro. per.; and Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. A jury convicted Emilio Ortiz Cervantes of assault with deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and found he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Cervantes admitted a serious felony prior conviction (§ 667,subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)).

1 All further statutory references are to the Penal Code. The court selected the upper term for the assault conviction, which was doubled due to the strike prior. The total term imposed for the conviction and enhancements was 16 years in prison. Cervantes appealed and this court affirmed the conviction and true findings on the enhancements. The court remanded the case for resentencing in light of recent legislative changes. (People v. Cervantes (May 16, 2022, D079691).) On remand, the trial court selected the middle term sentence for the assault charge, thereby reducing Cervantes’s term to 14 years in prison. Custody credits were corrected. Cervantes 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 Cervantes the opportunity to file his own brief on appeal. He has responded by filing a supplemental brief. We will discuss his submission later in this opinion.

STATEMENT OF FACTS2 Appellate counsel has provided an accurate summary of the facts of the offense. We will incorporate that summary to provide background for the case. On November 11, 2020, at around 2:20 p.m., Joann C. walked over to a bus stop in El Cajon. She noticed a man sitting at a bench. She sat down. As Joann made small talk with the man, she noticed a folding knife on the bench, partially open. Less than a minute after noticing the knife, Joann stood up to see if the bus was coming. As she made a comment about the bus, 2 Appellant’s request to augment, or for judicial notice of, transcript portions from case No. D079691, is granted. 2 the man abruptly came up to her and hit her two times in the chest. Feeling unable to breathe, Joann stumbled out into traffic for help. About a minute later, Joann realized she had been stabbed. While waiting for the police to arrive, she watched the man walk away at a leisurely pace. Based on Joann’s description of the man, the police arrested Cervantes a short distance away. Joann identified Cervantes as the man who had stabbed her. DNA evidence discovered on a knife, found in the bushes behind the bus stop, corresponded with DNA samples taken from both Joann and Cervantes. DNA uncovered on a matching sheath, found along Cervantes’ predicted route linked the sheath to him. Dr. Michelle Hamel treated Joann for her injuries. She observed two stab wounds, which had penetrated the chest cavity, causing a partially collapsed lung. Using local anesthetic, a tube was inserted to release the blood, though no surgery was required for the lung itself. Apart from having her stitches removed a week later, no follow-up treatment was necessary. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to independently 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 possible issues that were considered in evaluating the potential merits of this appeal. 1. Did the court abuse its discretion by failing to further reduce Cervantes’s sentence? 2. Whether the trial court erred in failing to adjust the section 1202.4, subdivision (b) fine downward in light of the reduction in the prison term.

3 Cervantes’s submission is somewhat unclear. He quotes several statutes and seems to argue he should have the benefit of statutory changes which were not before the trial court. He claims all of the sentence enhancements in this case should have been dismissed under other legislative enactments. Cervantes’s brief does not raise any arguable issues for reversal on appeal in light of the record. We have reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Cervantes on this appeal. DISPOSITION The judgment as modified by resentencing is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.

Cites, in this corpus

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