People v. Southerward CA4/1

California Court of Appeal · D081581 · 2023-07-28 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCN419010
Trial judge: James E. Simmons
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, 2026-10-13T04:31Z · confidence high

The trial court denied Southerward's petition for resentencing under Penal Code section 1172.6, finding he was a direct perpetrator who personally discharged a firearm. The Court of Appeal affirmed the denial after an independent review of the record pursuant to Wende and Anders procedures.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1172.6 “The court denied the petition without issuing an order to show cause.”	de novo	correct	agree with court The appellate court affirmed the trial court's decision, finding no error after independent review.

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appellate counsel to file a brief when no meritorious issues are identified, requesting independent review by the court.
relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for independent review of the record by the appellate court when appointed counsel identifies no meritorious issues.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the constitutional requirements for appointed counsel on appeal, including the filing of a brief identifying potentially meritorious issues.

The appellate opinion: sound — sound

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 trial court denied Quioan Southerward's Penal Code section 1172.6 resentencing petition at the prima facie stage without issuing an order to show cause, finding from the factual basis in his 2022 change-of-plea form that he admitted being the direct perpetrator who personally and intentionally discharged a firearm with express malice in the attempted murder. On appeal, appointed counsel filed a Delgadillo brief, Southerward's supplemental brief raised only an unrelated section 654 sentencing argument, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Summary denial of the section 1172.6 resentencing petition at the prima facie stage, without an order to show cause, on the ground that the record of conviction (the admitted factual basis on the plea form) showed Southerward was the direct perpetrator of the attempted murder. “Therefore, he is not eligible for relief under Penal Code section 1172.6.”	unclear	correct	agree with court The appellate court did not state a standard of review or analyze the merits; it conducted a Wende/Anders-style independent review under Delgadillo and found no arguable issue. On the facts recited, the result is defensible: a defendant's own admission in the factual basis of his plea that he personally and intentionally discharged the firearm with express malice establishes as a matter of the record of conviction that he was the actual perpetrator acting with malice, which is a proper basis for finding no prima facie case under People v. Lewis without engaging in impermissible factfinding. Additionally, the plea was entered in March 2022, after the 2019 amendments to sections 188 and 189, so Southerward could not have been convicted under the natural and probable consequences doctrine or any other theory abolished by Senate Bill 1437, making him categorically ineligible under section 1172.6, subdivision (a). The supplemental brief's section 654 argument attacks the final judgment, not the order on appeal, and was properly treated as outside the scope of this appeal. The opinion's lack of any citation to Lewis or the statutory eligibility requirements is a gap in reasoning but does not undermine the outcome.

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from the denial of a section 1172.6 petition, Wende independent review is not constitutionally required; when counsel finds no arguable issues, the court must notify the defendant, and if the defendant files a supplemental brief the court must evaluate the specific arguments presented, while retaining discretion to independently review the record.
relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for appellate review when appointed counsel finds no arguable issues: the court conducts an independent review of the entire record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition, the trial court may consider the record of conviction to determine whether the petitioner is ineligible for relief as a matter of law, but must accept the petition's allegations as true and may not engage in factfinding involving the weighing of evidence or the exercise of discretion.

The appellate opinion: sound with gaps — The opinion reaches a correct result because the defendant's own plea-form admission that he personally and intentionally shot the victim with express malice, together with the fact that his 2022 plea postdated the 2019 amendments to sections 188 and 189, make him ineligible for section 1172.6 relief as a matter of law, and the supplemental brief raised only a section 654 claim outside the scope of the appeal. However, the opinion states no standard of review and cites no authority on the prima facie standard (notably People v. Lewis) or the statutory eligibility requirements, resting instead on a bare Wende/Delgadillo independent-review conclusion.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 7/28/23 P. v. Southerward 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, D081581

Plaintiff and Respondent, v. (Super. Ct. No. SCN419010)

QUIOAN SOUTHERWARD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, James E. Simmons, Judge. Affirmed. Quioan Southerward, in pro. per.; and James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In March 2022, Quioan Southerward entered into a plea agreement in which he pleaded guilty to one count of attempted murder (Pen. Code,1 §§ 187 & 664), admitted he personally used a firearm (§ 12022.5, subd. (a)), that he personally inflicted great bodily injury on the victim (§ 12022.7, 1 All further statutory references are to the Penal Code. subd. (a)), and admitted a prior strike (§ 667, subds. (b)-(i)). The parties stipulated he would be sentenced to a term of 13 years in prison. The court ultimately sentenced Southerward to a determinate term of 13 years. In October 2022, Southerward filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing, and reviewed the record of conviction. Following a hearing, the trial court found Southerward had not stated a prima facie case for resentencing under the statute. The court denied the petition without issuing an order to show cause. At the hearing, the court found that Southerward “was a direct perpetrator to the crime of attempted murder. He admitted as such in his factual basis on his change of plea form. He admitted to being the individual who personally and intentionally discharged the firearm in this case, who committed the crime with—with express malice to commit the crime. Therefore, he is not eligible for relief under Penal Code section 1172.6.” Southerward filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to the directions provided by People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), indicating counsel has not been able to identify any meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion to conduct an independent review of the record similar to the procedure established in People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Southerward of his right to file his own brief on appeal. Southerward has responded by filing a supplemental brief. We will discuss the supplemental brief later in this opinion. This appeal arises from a postjudgment motion after a plea of guilty. We do not find it necessary to construct a statement of facts for this appeal.

2 DISUSSION As we have noted, appellate counsel has filed a Delgadillo 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 a possible issue that was considered in evaluating the potential merits of this appeal: Whether the trial court erred in summarily denying Southerward’s petition without issuing an order show cause. In his supplemental brief, Southerward raises several issues that do not address the propriety of the trial court’s conclusion Southerward was a direct perpetrator who personally and intentionally discharged the firearm that caused the victim’s injury. Instead, Southerward argues we should stay the three year term for the infliction of great bodily injury. Somehow Southerward reasons recent legislation relating to section 654 should require a modification of his sentence. Southerward does not discuss any possible errors in the trial court’s ruling on the petition for resentencing under section 1172.6. Southerward has not identified any arguably meritorious issues with regard to the order currently before us. We have exercised our discretion to independently review the record for error. Consistent with the procedures established in Wende and Anders. We have not discovered any potentially meritorious issues for reversal on appeal. Competent counsel has represented Southerward on this appeal.

3 DISPOSITION The order denying Southerward’s petition for resentencing under section 1172.6 is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.

Cites, in this corpus

People v. Delgadillo S266305 · 2022-12-19
People v. Wende Crim. 20851 · 1979-10-12