People v. O'Connell CA4/2 ( 2021 )

Filed 6/14/21 P. v. O’Connell CA4/2
See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076540
v. (Super.Ct.No. BAF003317)
TIMOTHY FRANCIS O'CONNELL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Timothy Francis O’Connell appeals from an order of the
Riverside County Superior Court dismissing his petition filed pursuant to subdivision
1
(a)(1) of Penal Code1 section 1170.91 seeking to recall his sentence on the grounds he
suffered a “disability” as a result of his military service that was not considered in
mitigation at his original sentencing. We affirm.
BACKGROUND
A jury convicted defendant of torture, infliction of injury on a child, and a great
bodily injury enhancement. (§§ 206, 273d, subd. (a), & 12022.7, respectively.) In
addition, the court found true two prior prison terms and two prior serious felony
convictions. (§§ 667, subds. (a), (c), (e)(2)(A) & 1170.12, subd. (e)(2)(A).)
At his April 2005 sentencing hearing, defendant argued the first strike conviction
should be eliminated from consideration pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, because the Governor of California had pardoned that conviction
upon defendant’s honorable discharge from the military. The court denied the motion for
a lack of evidence and sentenced defendant to an indeterminate term of 25 years to life.
In March 2019, defendant filed a petition to recall his sentence pursuant to
subdivision (b) of section 1170.91. That provision requires the sentencing court to
consider certain specified traumas resulting from military service as mitigating factors
when exercising its discretion to choose which determinate term it will impose when the
sentencing statute specifies a choice of three determinate terms. (§ 1170.91, subd. (b).)
Section 1170.91 was amended effective January 1, 2019, to apply retroactively to persons
currently serving a prison sentence for a felony conviction obtained by trial or plea if the
1 All further statutory references are to the Penal Code.
2
person was sentenced before January 1, 2015 (whether or not the case was final as of that
date) and the specified mitigating factors were not considered at the time of sentencing.
(Ibid.)
At the January 21, 2021 hearing on defendant’s petition for recall, the court
dismissed the matter on the grounds section 1170.91 did not apply because defendant did
not receive a determinate sentence. Defendant appealed.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth
statements of the case and facts. Counsel suggests the following potentially arguable
issue: whether the trial court erred when it found defendant ineligible for relief under
section 1170.91 because that provision is limited to persons serving determinate
sentences. Counsel also requests this court to conduct an independent review of the
entire record.
When, an indigent defendant takes a direct appeal from the judgment and
appointed appellate counsel files an opening brief that does not present an arguable issue,
it is well settled that the appellate court must offer the defendant an opportunity to submit
a personal supplemental brief and to review the entire record whether or not the
defendant files a brief. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review
granted October 14, 2020, S264278, held the constitutional bases for Wende
3
procedures apply only to a defendant’s direct appeal from the judgment. We also
recognize that we have discretion to exercise our inherent supervisory powers to apply
Wende procedures to appeals from denials of postconviction relief in which appointed
appellate counsel files a no-issues brief. Accordingly, appellate courts have
traditionally afforded defendants an opportunity to personally file a supplemental brief
when appointed counsel has submitted a no-issues brief in a postjudgment appeal.
(People v. Scott (2020) 58 Cal.App.5th 1127, 1131 (Scott), review granted Mar. 17,
2021, S266853.)
Appellate courts are divided, however, with respect to whether we should
exercise our discretion to conduct an independent review of the record if a defendant
does not respond to an invitation to file a supplemental brief. (E.g., People v. Cole,
supra, 52 Cal.App.5th at pp. 1038-1039 [Second Dist., Div. Two, no independent
review of record when no supplemental brief filed, dismissed the appeal as
abandoned]; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273-274 [Fourth Dist.,
Div. Three, conducted independent review of record even though defendant did not file
a supplemental brief].)
Recent opinions issued by this court reflect the division in approach to the
situation in which defendant does not file a supplemental brief. In Scott, one panel
concluded there is no reason to conduct an independent review of the record or to issue
an opinion in such a case and dismissed the appeal as abandoned. (Scott, supra, 58
4
Cal.App.5th at pp. 1131-1132 (but see dis. opn. of Miller, J.); accord People v. Figueras
(2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.)
In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court
concluded the interests of justice call for independent review of the record in
postjudgment no-issue appeals even if the defendant has not filed a supplemental brief.
(Id. at p. 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54
Cal.App.5th 266, 269 [when an appointed counsel files a Wende brief in an appeal from a
summary denial of a section 1170.95 petition, reviewing court is not required to
independently review the entire record, but the court can and should do so in the interests
of justice]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 [court of appeal has the
discretion to review the record in the interests of justice].)
We respectfully disagree with Scott and find the procedure in Gallo provides
indigent defendants an additional layer of due process while consuming comparatively
little in judicial resources.
Here, we offered defendant an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th
106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently
reviewed the record for potential error and find no arguable issues.
5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
I concur:
MILLER
J.
6
[People v. Timothy Francis O’Connell, E076540]
RAPHAEL, J., Dissenting.
I would dismiss by order this uncontested appeal and therefore respectfully
dissent. (People v. Scott (2020) 58 Cal.App.5th 1127.)
It is obvious that defendant and appellant Timothy O’Connell does not qualify for
relief in this appeal from the denial of his motion for resentencing under Penal Code
section 1170.91. Only persons who received determinate sentences are eligible under
that provision. (People v. Estrada (2020) 58 Cal.App.5th 839, 843.) Defendant received
an indeterminate sentence of 25 years to life so he is ineligible.
Defendant and his counsel raise no issues. Rather than dismiss this uncontested
appeal, however, the majority issues an opinion. But the entire substance of its
discussion is to argue that its opinion should exist. (Maj. opn., ante, at pp. 3-6.) The
majority promises it will provide an “additional layer of due process” with its review and
opinion. (Maj. opn., ante, at p. 5.)
The entire extra layer of due process then comprises one vague sentence: the
majority states that it has “independently reviewed the record for potential error” and can
“find no arguable issues.” (Maj. opn., ante, at pp. 5-6.)
What could the majority have been looking for in searching the record for
potential error? Defendant is obviously ineligible for section 1170.91 relief, but nowhere
does the majority even articulate why it is affirming.
1
Our Constitution requires that our decisions that “determine causes” shall be “in
writing with reasons stated.” (Cal. Const., art. VI, § 14.) The majority opinion states no
reasons for affirming. Its utter lack of analysis is a clue that no opinion affirming is
necessary. As our Supreme Court has put it: “Dismissal of an appeal raising no arguable
issues is not inconsistent with article VI, section 14 of the California Constitution
requiring that decisions determining causes ‘be in writing with reasons stated.’ [Fn.
Omitted.] Nothing is served by requiring a written opinion when the court does not
actually decide any contested issues.” (Conservatorship of Ben C. (2007) 40 Cal.4th 529,
544.)
It is of no benefit to anyone, including and especially the defendant, to spend three
pages on why an opinion should exist, and not a single word of reasoning or analysis
about the underlying case. Rather, it is a waste of judicial resources. The Supreme Court
may provide guidance on how we should resolve cases such as this relatively soon. (See
(People v. Delgadillo (Feb. 17, 2021, No. S266305) ___Cal.5th___ [2021 Cal. LEXIS
1185].).) Based on the guidance we have, I would resolve this case with a one sentence
unpublished order dismissing the abandoned appeal, noting that defendant is ineligible
for section 1170.91 relief because he received an indeterminate sentence.
RAPHAEL
J.
2