People v. Nowden CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD256605
- Trial judge
- Desiree A. Bruce-Lyle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion, Buchanan
Analysis
The trial court denied Nowden's petition for resentencing under former section 1170.95 (now § 1172.6) without issuing an order to show cause, finding the record of conviction conclusively established she was the actual killer and thus ineligible for relief. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to People v. Wende and People v. Delgadillo, finding no potentially meritorious issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under former section 1170.95 (now § 1172.6) without issuance of an order to show cause.“The court found the record established Nowden was the actual killer and was not eligible for relief under section 1172.6 as a matter of law. The court denied the petition without issuing an order to show cause.” | de novo | correct | agree with court agree with court |
Assignment of the petition to a judge other than the original sentencing judge.“Desiree [TRIAL JUDGE] was assigned to hear the petition although she was not the original sentencing judge.” | abuse of discretion | not reached | unsure unsure |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief identifying no meritorious issues and requesting independent review of the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the court to independently review the record for error when appointed counsel identifies no meritorious issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the constitutional framework for appointed counsel to withdraw from representation by filing a brief identifying potentially meritorious issues.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Delgadillo framework for independent review when counsel identifies no meritorious issues. However, it is a 'sound with gaps' opinion because it fails to explicitly state the standard of review for the underlying § 1172.6 denial or cite the specific statutory criteria (e.g., People v. Strong) that allow for denial without an order to show cause, relying instead on a general statement that no errors were found.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court denied Nowden's Penal Code section 1172.6 resentencing petition at the prima facie stage without issuing an order to show cause, finding the change of plea form, in which she admitted personally using a deadly weapon and intentionally killing the victim, established she was the actual killer and ineligible for relief as a matter of law. On appeal, counsel filed a Delgadillo brief, Nowden's own letter raised only a complaint about her original serious felony prior enhancement, and the Court of Appeal exercised its discretion to independently review the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition at the prima facie stage on the ground the record of conviction (change of plea form admitting intentional killing with personal use of a deadly weapon) established Nowden was the actual killer and ineligible as a matter of law“The court found the record established Nowden was the actual killer and was not eligible for relief under section 1172.6 as a matter of law. The court denied the petition without issuing an order to show cause.” | unclear | correct | agree with court Section 1172.6 relief is unavailable to a defendant who was the actual killer and acted with intent to kill; a plea admission that she intentionally killed the victim while personally using a deadly weapon is part of the record of conviction and refutes the petition's allegations without factfinding. The opinion does not state a standard of review or cite People v. Lewis, but the result follows from the admitted plea facts recited in the opinion. |
Assignment of the section 1172.6 petition to a judge other than the original sentencing judge“Desiree [TRIAL JUDGE] was assigned to hear the petition although she was not the original sentencing judge.” | unclear | correct | agree with court Section 1172.6, subdivision (b)(1) directs that the petition go to the sentencing judge if available and otherwise to the presiding judge for assignment; the opinion does not say why a different judge heard the matter, but because the petition was properly denied as a matter of law on the face of the plea admissions, any assignment irregularity could not have been prejudicial. The court flagged this as an Anders issue and found it not arguable, which is a defensible conclusion on this record. |
Nowden's pro. per. request to vacate the term imposed for the serious felony prior on her original sentence“She focuses on her original sentence on the serious felony prior and asks the court to vacate the term for the prior.” | unclear | not reached | agree with court The appeal is from the order denying the section 1172.6 petition, and a challenge to a stipulated enhancement imposed in 2015 is outside the scope of that appeal; the court correctly treated it as not presenting an issue for reversal of the order before it. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from a postjudgment section 1172.6 denial, Wende independent review is not constitutionally required, but the Court of Appeal may exercise its discretion to conduct such review after the defendant is notified and given the chance to file a supplemental brief.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for independent appellate review of the record when appointed counsel finds no arguable issues on a first appeal of right.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous should file 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 court may consult the record of conviction to determine whether the petitioner is ineligible as a matter of law but may not engage in factfinding or weighing of evidence; the opinion did not cite this governing standard when approving the prima facie denial.
The appellate opinion: sound with gaps — The court followed Delgadillo and Wende/Anders procedure, considered the two issues counsel flagged, and reached a result compelled by the plea admissions recited in the opinion. It did not, however, articulate the prima facie standard from People v. Lewis or explain why assignment to a non-sentencing judge was permissible or harmless, leaving the reasoning on both flagged issues implicit.
Opinion
Filed 9/27/23 P. v. Nowden 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, D081660
Plaintiff and Respondent, v. (Super. Ct. No. SCD256605)
TIFFANY LATOYA NOWDEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Desiree A. Bruce-Lyle, Judge. Affirmed. Tiffany Latoya Nowden, in pro. per.; and Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2015, Tiffany Latoya Nowden pleaded guilty to second degree murder (Pen. Code,1 § 187, subd. (a)) and admitted she personally used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)).
1 All further statutory references are to the Penal Code. Nowden also admitted a serious felony prior conviction (§ 667, subd. (a)(1)). The parties stipulated to a term of 20 years to life in prison. Nowden was sentenced in accordance with the plea agreement. In 2022, Nowden filed a form petition for resentencing under former section 1170.95 (now renumbered § 1172.6). Judge Desiree Bruce-Lyle was assigned to hear the petition although she was not the original sentencing judge. The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. At the hearing, the court reviewed the change of plea form in which Nowden admitted she personally used the deadly weapon and intentionally killed the victim without deliberation and premeditation. The court found the record established Nowden was the actual killer and was not eligible for relief under section 1172.6 as a matter of law. The court denied the petition without issuing an order to show cause. Nowden filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion to independently review the record for error as we would do in a case controlled by People v. Wende (1979) 25 Cal.3d 436 (Wende). We advised Nowden of her right to file her own brief on appeal. She has responded with a brief letter. Her submission does not address any possible issues for reversal of the ruling on the order that is currently before us. She focuses on her original sentence on the serious felony prior and asks the court to vacate the term for the prior. In short, 2 Nowden does not raise any possibly meritorious issues for reversal of the current order. STATEMENT OF FACTS In her change of plea, Nowden admitted she intentionally killed the victim while personally using a deadly weapon. DISCUSSION As we have noted appellate counsel has filed a brief pursuant to People v Delgadillo, supra, 14 Cal.5th 216. Counsel has asked 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. Was it prejudicial error to assign this petition to a different judge than the one who originally sentenced Nowden? 2. Does the record of conviction conclusively establish Nowden was ineligible for relief as a matter of law? We have exercised our discretion to independently review the record for error consistent with the procedures in Wende and Anders. We have not discovered any potentially meritorious issues for reversal on appeal. Competent counsel has represented Nowden on this appeal.
3 DISPOSITION The order denying Nowden’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12