People v. Herrera CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN382416
- Trial judge
- Robert J. Kearney
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Laurence D. Rubin
Analysis
The trial court resentenced the defendant to a total term of 20 years, reducing the sentence for count 1 to the middle term after the prosecution declined to pursue an upper term on remand. The Court of Appeal affirmed the judgment following an independent review of the record pursuant to People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Resentencing to a total term of 20 years, including a middle term of six years for count 1.“The court reduced the sentence for count 1 to the middle term of six years and the reimposed the remainder of the original sentence for a total term of 20 years.” | unclear | not reached | agree with court The appellate court conducted an independent review of the record as required by People v. Wende and found no arguable issues for reversal. The court did not explicitly analyze the trial court's sentencing decision on the merits, but affirmed the judgment based on the absence of arguable error. |
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 counsel to identify any arguable issues to assist the court in its independent review of the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for independent review when counsel identifies no arguable issues. However, it is a 'sound with gaps' opinion because it fails to explicitly address the specific sentencing issue identified by counsel regarding the requirement to find aggravating factors beyond a reasonable doubt, relying instead on a general statement that no arguable issues were found.
How this analysis was made · dispute it
unusual dispositionOn remand for resentencing under amended Penal Code section 1170, subdivision (b), the trial court reduced count 1 from the upper term to the middle term of six years after the prosecution declined to seek the upper term, reimposed the remainder of the original sentence, and arrived at a total determinate term of 20 years. On appeal, appointed counsel filed a Wende brief identifying as a possible issue whether the low term was required because no aggravating factors were found true beyond a reasonable doubt; the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Resentencing on remand: imposition of the middle term of six years on count 1 and reimposition of the remainder of the original sentence for a total term of 20 years.“The court reduced the sentence for count 1 to the middle term of six years and the reimposed the remainder of the original sentence for a total term of 20 years.” | unclear | correct | agree with court Under section 1170, subdivision (b)(1)-(2) as amended by Senate Bill 567, the middle term is the presumptive term; the upper term may be imposed only on aggravating factors stipulated to or found true beyond a reasonable doubt. The absence of such findings bars the upper term but does not compel the low term. The low term is required under subdivision (b)(6) only where enumerated circumstances (e.g., childhood trauma, youth, intimate partner violence) contributed to the offense, and nothing in the opinion suggests such a showing was made. Imposing the middle term after the prosecution declined to pursue the upper term was therefore lawful, so counsel's identified issue has no arguable merit. |
Wende/Anders independent review of the record after appointed counsel found no arguable issues.“We have reviewed the record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Herrera on this appeal.” | unclear | correct | agree with court The court followed the required Wende procedure: counsel filed a no-issues brief, identified a possible issue per Anders, the defendant was invited to file a supplemental brief and did not, and the court independently reviewed the record. Nothing in the opinion indicates any defect in the resentencing proceedings, and the only identified issue fails as a matter of statutory interpretation. The procedure and conclusion are consistent with Wende. |
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 without merit should identify anything in the record that might arguably support the appeal to assist the court's review.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure and reaches the right result: the amended section 1170, subdivision (b) makes the middle term presumptive, so the lack of aggravating findings beyond a reasonable doubt did not require a low term. The opinion is minimal, does not explain why the identified issue lacks merit, and contains an internal inconsistency in the prior appeal's docket number (D079275 versus D078275), but these do not affect the outcome.
Opinion
Filed 10/23/23 P. v. Herrera 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, D081948
Plaintiff and Respondent, v. (Super. Ct. No. SCN382416)
LOUIE SANTILLAN HERRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In January 2020, Louie Santillan Herrera was convicted of multiple felony counts arising from years of molestation of his stepdaughter. He was convicted of two counts of oral copulation of a child under age 14 years and was more than 10 years younger than Herrera (Pen. Code,1 § 288a, 1 All further statutory references are to the Penal Code. subd. (c)(1)); eight counts of lewd acts with a child under age 14 (§ 288, subd. (a)) and two counts of sexual penetration of a child under age 14 (§ 289, subd. (j)). The court sentenced Herrera to a determinate term of 22 years in prison, including an upper term of eight years for count one. Herrera appealed and this court affirmed the convictions but vacated the sentence and remanded the case for a new sentencing hearing in light of intervening legislative changes to section 1170, subdivision (b)(2).2 On remand, the prosecution declined to pursue an upper term for count 1. The court reduced the sentence for count 1 to the middle term of six years and the reimposed the remainder of the original sentence for a total term of 20 years. Herrera 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 independently review the record for error as mandated by Wende. We offered Herrera the opportunity to file his own brief on appeal, but he has not responded. The facts of the offenses were fully discussed in our prior opinion. We will not discuss them further here. (People v. Herrera, supra, D079275.) DISCUSSION As we have noted appellate counsel has filed a Wende brief and asks the court to 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 2 The court affirmed the convictions in an unpublished opinion. (People v. Herrera (Sept. 20, 2022, D078275).) 2 merits of this appeal: Whether the trial court was required to impose the low term sentence since the aggravating factors were not found true beyond a reasonable doubt. We have reviewed the record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Herrera on this appeal. DISPOSITION The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
RUBIN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12