People v. Burney CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD238174
- Trial judge
- Eugenia A. Eyherabide
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion, Julia C. Kelety
Analysis
The trial court, on remand, exercised its discretion under People v. Tirado and declined to strike or modify the firearm enhancement, reinstating a 50 years to life sentence. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende found no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's decision to reinstate the 50 years to life sentence by refusing to strike or modify the firearm enhancement under People v. Tirado.“The court determined the interests of justice did not justify striking or modifying the term for the use of a firearm. The court reinstated the 50 years to life sentence.” | unclear | not reached | unsure The opinion does not explicitly state the standard of review applied to the trial court's discretionary decision. It notes that counsel filed a Wende brief and the court independently reviewed the record, but it does not articulate whether it applied an abuse of discretion standard to the trial court's ruling on the enhancement. Because the opinion is silent on the specific standard of review for this ruling, it is classified as unclear. |
Authorities
- relied: People v. Tirado (2022) 12 Cal.5th 688 — Establishes the trial court's discretion to strike or modify firearm enhancements under certain circumstances.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to identify arguable issues and mandates the court to independently review the record for error if no issues are found.
The appellate opinion: sound with gaps — The opinion is procedurally sound in that it correctly identifies the Wende protocol and states that an independent review was conducted. However, it is a 'sound with gaps' opinion because it fails to articulate the standard of review applied to the trial court's discretionary decision on the firearm enhancement, relying solely on the negative finding of 'no arguable issues' without analyzing the trial court's reasoning against the legal standard.
How this analysis was made · dispute it
unusual disposition unusual dispositionOn remand under People v. Tirado, the trial court held a hearing, weighed Burney's mental health evidence and the circumstances of the murder, declined to strike or modify the section 12022.53, subdivision (d) firearm enhancement, and reinstated the 50-years-to-life sentence. On appeal, appointed counsel filed a Wende brief, Burney filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's refusal on remand to strike or modify the section 12022.53, subdivision (d) firearm enhancement under People v. Tirado and section 1385, reinstating the 50-years-to-life sentence“The court determined the interests of justice did not justify striking or modifying the term for the use of a firearm.” | unclear | correct | agree with court The opinion recites that the trial court held a hearing, reviewed factors for and against striking, and considered the totality of the mental health evidence and offense circumstances before declining relief, which is the discretionary exercise Tirado and section 1385 require. The appellate court did not state a standard of review and instead conducted an independent Wende review and found no arguable issue. On the thin record described, nothing suggests the trial court misunderstood its discretion or relied on improper factors, so the result appears defensible, though the opinion gives little detail with which to verify it. |
Authorities
- relied: People v. Tirado (2022) 12 Cal.5th 688 — A trial court that strikes a section 12022.53, subdivision (d) enhancement under section 1385 has discretion to impose a lesser uncharged enhancement under subdivision (b) or (c); the remand directed the trial court to exercise this discretion.
- 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 issues before affirming.
The appellate opinion: sound with gaps — The opinion follows the Wende procedure, confirms the defendant was offered the chance to file her own brief, describes the remand hearing, and finds no arguable issue, which is a defensible result given the trial court's recited consideration of the relevant factors. It is minimal, however: it does not state the abuse-of-discretion standard, does not describe the factors the trial court weighed, and does not address whether Wende review (as opposed to People v. Delgadillo's framework for postjudgment appeals) applies to an appeal from a resentencing on remand.
How this analysis was made · dispute it
record incompleteOpinion
Filed 6/14/24 P. v. Burney 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, D082655
Plaintiff and Respondent, v. (Super. Ct. No. SCD238174)
TIFFANY NICOLE BURNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2015, Tiffany Nicole Burney was convicted of first degree murder (Pen. Code,1 § 187, subd. (a)). The jury found true an allegation that Burney personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). After a second trial, a jury found Burney was sane at the time of 1 All statutory references are to the Penal Code. the offense. The court sentenced Burney to a term of 50 years to life in prison. Following an appeal, this court affirmed the conviction but ultimately remanded the case to the trial court with directions to exercise its discretion under People v. Tirado (2022) 12 Cal.5th 688 to decide whether to strike or modify the firearm enhancement. On remand, the trial court held a hearing. The court reviewed the factors for and against striking the enhancement. It considered the totality of the evidence regarding Burney’s mental health issues and the circumstances surrounding the offense. The court determined the interests of justice did not justify striking or modifying the term for the use of a firearm. The court reinstated the 50 years to life sentence. Burney 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 Burney the opportunity to file her own brief on appeal, but she has not responded. DISCUSSION The facts underlying the offense and the use of a firearm have previously been discussed in the earlier appeal. There is no need to repeat that discussion here. We have independently reviewed the record for error as required by Wende. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Burney on this appeal.
2 DISPOSITION The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
KELETY, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12