People v. Green CA1/4 ( 2015 )

Filed 6/30/15 P. v. Green CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A141549
v.
CEDRIC TYRONE GREEN, (San Mateo County
Super. Ct. No. SC041613A)
Defendant and Appellant.
This case comes to us under People v. Wende (1979) 25 Cal. 3d 436 after
defendant Cedric Tyrone Green, who is serving a third strike indeterminate life term,
petitioned for recall of his sentence and for resentencing under the Three Strikes Reform
Act of 2012. He was found ineligible, and appealed. Having conducted a full-record
review, we find no issues that merit briefing. We also address certain issues raised by
Green on his own behalf. We find no error warranting further consideration on our own
or in anything Green has raised. We therefore affirm.
BACKGROUND
Green was convicted by jury verdict of second degree robbery (Pen. Code,1
§§ 211, 212.5) in 1998, with two strike priors for attempted robbery from 1991 and 1993
(§§ 211, 212.5, 664, 667, subds. (b)-(j)), which also qualified as serious felony priors
under section 667, subdivision (a). He was sentenced to 35 years to life in prison and has
been incarcerated ever since. (§§ 667, subds. (a), (e), 1170.12, subd. (c)(2)(A)(ii).)
1
Statutory references are to the Penal Code.
1
Represented by counsel in the trial court, Green filed a petition to recall his
sentence and for resentencing pursuant to section 1170.126. That statute permits inmates
who were sentenced to a third-strike term for a relatively minor offense (non-violent and
non-serious) to be resentenced in certain circumstances. Generally, it allows third-
strikers who were sentenced to a third-strike term (indeterminate term of 25 years to life)
to instead be given a second-strike sentence (double the base term). (§§ 667, subds.
(e)(1), (e)(2)(C), 1170.126, subds. (a) [resentencing applies “exclusively to persons
presently serving an indeterminate term of imprisonment . . . , whose sentence under this
act would not have been an indeterminate life sentence”] & (b).)
Green’s trial counsel seemed to recognize that his client was ineligible for
resentencing under section 1180.126 because the commitment offense (the 1998 robbery)
was a violent and serious felony (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).)
Nevertheless, in an apparent effort to secure a less onerous sentence, trial counsel
requested the court to consider striking one of the prior convictions under People v.
Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero).
The court ruled that Green was statutorily ineligible for resentencing under section
1170.126 and denied the petition. It did not directly address the Romero request. Green
filed a timely notice of appeal. (Teal v. Superior Court (2014) 60 Cal. 4th 595, 598–601
[denial of petition for resentencing is appealable order].)
On December 1, 2014, Green’s appointed appellate counsel, a staff attorney at the
First District Appellate Project (FDAP), filed a brief under People v. Wende, supra, 25
Cal. 3d 436, requesting that we review the entire record to determine if there are any
arguable issues to be briefed. Counsel notified Green of her intention to file a Wende
brief and advised him of his right to file a supplemental brief on his own behalf within 30
days.
On December 29, 2014, Green’s appellate counsel filed a request for an extension
of time for Green to file a supplemental brief. We granted the extension. Within the time
allowed, Green did not file a supplemental brief on the merits, but he did file (1) a motion
to dismiss the Wende brief and request for leave to “amend appellant’s brief, presenting
2
colorable claims,” and (2) a motion for an enlargement of time to file an amended brief
presenting “colorable claims and issues.” Along with those motions, Green filed various
items of correspondence between him and his appointed appellate attorney, evidently to
support his argument that she had failed to raise meritorious issues that he had brought to
her attention. We shall discuss his filings in connection with our disposition of the
Wende brief. (People v. Kelly (2006) 40 Cal. 4th 106, 110.)
DISCUSSION
The voters passed Proposition 36, known as the Three Strikes Reform Act of 2012
(Reform Act), in November 2012. The Reform Act added section 1170.126 to the Penal
Code. The gist of the Reform Act was to make third strike sentencing applicable only
when the commitment offense was a serious or violent felony. (People v. Brown (2014)
230 Cal. App. 4th 1502, 1509 (Brown).) The Reform Act allows a qualifying inmate
serving an indeterminate third-strike term to petition to recall his sentence and be
resentenced under the Reform Act itself. If the defendant otherwise meets the criteria set
out in the statute, the court must resentence him under the second-strike provisions unless
it determines that the defendant “would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f); accord, People v. Jernigan (2014) 227 Cal. App. 4th 1198,
1204.)
Section 1170.126, subdivision (e) restricts the availability of resentencing to those
whose commitment conviction was not for a serious or violent felony: “(e) An inmate is
eligible for resentencing if: [¶] (1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (Italics added.) Robbery is defined as a serious
felony (§ 1192.7, subd. (c)(19)) and a violent felony (§ 667.5, subd. (c)(9)). Thus, Green
was not eligible for resentencing under the Reform Act.
The only remaining question is whether the court had discretion to strike one of
Green’s prior convictions in the interest of justice in order to resentence him more
3
leniently, as his counsel requested. This would have been an alternative means of
reducing his sentence to a second-strike term, but not one authorized under section
1170.126. We note that Green made a Romero motion at sentencing in 1998, and it was
denied.
The Fourth Appellate District, Division Two, recently held that a court does not
have inherent discretion to strike a prior conviction on behalf of a defendant petitioning
for resentencing, either under section 1385 or under Romero. (Brown, supra, 230
Cal.App.4th at p. 1514.) In Brown it was the nature of the prior conviction (a violent sex
offense) that precluded resentencing under section 1170.126. (§ 667, subd.
(e)(2)(C)(iv)(I); Brown, supra, 230 Cal.App.4th at pp. 1509–1510.) “A trial court does
not have general jurisdiction to resentence a criminal defendant after execution of
sentence has begun. [Citation.] Section 1385 does not grant the court such jurisdiction.”
(Id. at p. 1511.) This was true even though Brown’s commitment offense was non-
serious and non-violent (petty theft with a prior theft conviction). (Id. at p. 1506.) Thus,
if Brown had been able to have his prior disqualifying conviction stricken, he would have
been eligible for resentencing under the Reform Act.
It is even clearer in this case than it was in Brown that resentencing is not
permissible under Romero or section 1385, for even if the trial court had stricken one of
his prior convictions, Green still would not have been eligible for resentencing under
section 1170.126, subdivisions (a), (b) and (e). Thus, there is no meritorious argument
that he is entitled to resentencing. An issue is “ ‘meritorious’ ” for purposes of Wende
review only if it has a “ ‘reasonable potential for success’ ” and would result in reversal
or modification of the judgment if resolved favorably to the defendant. (People v.
Placencia (1992) 9 Cal. App. 4th 422, 425.) Neither Romero nor section 1385 can be
construed to open up a broad opportunity for resentencing for inmates not otherwise
statutorily eligible, nor was providing such an opportunity within the intent of the Reform
Act.
Turning to Green’s filings on his own behalf, he did not file a supplemental brief
on the merits, except to argue that his “appellate attorney has not provided active and
4
vigorous appellate representation.” A claim of ineffective assistance of appellate counsel
requires a showing of both deficient performance and prejudice. (In re Reno (2012) 55
Cal. 4th 428, 488.) Such a claim may be raised by an indigent defendant represented by
appointed counsel, and if the appellate court agrees that the appellate attorney failed to
raise significant meritorious issues, the defendant may be entitled to appointment of new
counsel on appeal. (People v. Lang (1974) 11 Cal. 3d 134, 139, 142; People v. Rhoden
(1972) 6 Cal. 3d 519, 529.)
Having reviewed the whole record and Green’s attorney-client communications,
we discern no basis for a claim of ineffective assistance of appellate counsel. No error of
counsel appears on the face of the record, and we will not infer from the mere filing of a
Wende brief that counsel’s representation fell below professional norms. On the contrary,
our review of the record convinces us that a Wende brief was appropriately filed.
Moreover, counsel’s correspondence shows that she responded at length to her client’s
concerns and explained why certain suggested arguments could not successfully be raised
on appeal.
Green argues that he instructed his attorney not to file a Wende brief, but she filed
one anyway. To the extent he suggests his attorney was required to follow his “order”
that she file a brief on the merits or raise certain arguments, she clearly had no such
obligation. The attorney is the “ ‘captain of the ship’ ” in deciding which legal issues
should be raised (People v. Welch (1999) 20 Cal. 4th 701, 728–729, 736; In re Horton
(1991) 54 Cal. 3d 82, 95; People v. Freeman (1994) 8 Cal. 4th 450, 509) and appellate
counsel has no obligation to raise frivolous issues at her client’s behest (Smith v. Robbins
(2000) 528 U.S. 259, 278; Rules Prof. Conduct, rule 3-200(B)).
If Green wishes to challenge the performance of any of his attorneys as
ineffective, because he refers to matters outside the appellate record, the proper vehicle
would be a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15
Cal. 4th 264, 266–267.) Even if we treated Green’s filings as a habeas petition and
addressed the issue on the merits, however, we would not find he had met the two-step
standard for ineffective assistance set out in Strickland v. Washington (1984) 466 U.S.
5
668, 687. (See Smith v. Robbins, supra, 528 U.S. at p. 285 [adopting Strickland standard
for assessing claims of ineffective assistance of appellate counsel]). Without assessing
the performance prong, we conclude that a more favorable result could not have been
achieved if appellate counsel had filed a brief on the merits of the resentencing issue.
Green wrote in a letter to his appellate counsel: “[There] are many cases like mine
in which the defendant was deemed, by statute to be ineligible for Prop 36, because they
had a robbery or burglary as a current conviction. Some of these cases have reached the
California Supreme Court and a favorable decision may affect my current situation in a
positive manner.” He urged counsel to “be patient” and not “give up so easily.” We
have reviewed the Issues Pending before the California Supreme Court in Criminal Cases
( [as of June 25, 2015]),
and we find no pending cases in which the decision potentially would result in a more
favorable outcome for Green.
Nor do we see any merit to Green’s substantive arguments, treating the whole of
his filings (which include some legal citations) as a supplemental brief on the merits.
Green’s suggested arguments were: (1) His attorney in the trial court should not have
raised both a Romero motion and a motion for resentencing under Proposition 36 at the
same time. (2) When Green admitted his attempted robberies in 1991 and 1993 he was
told that his convictions were serious felonies and would add five years to his sentence in
the event of a future conviction. He wanted to argue that he relied on those statements as
encompassing the only recidivist consequence of his pleas and hence he could not
lawfully have been sentenced in 1998 to 35 years to life as a result of those same prior
convictions. (But see Doe v. Harris (2013) 57 Cal. 4th 64, 73.) (3) He believes he was
entitled to a jury trial in 1998 on his prior convictions under Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi). (But see In re Consiglio (2005) 128 Cal. App. 4th 511,
515 [Apprendi not retroactive].) (4) He evidently believes he is entitled to some form of
relief under Proposition 47. (5) He has some complaint about FDAP or the attorney
appointed to represent him on appeal in 1998, suggesting they caused him to lose his
direct appeal at that time and to miss a filing deadline for federal relief.
6
The first argument identified above (ineffective assistance of trial counsel at
resentencing hearing) again fails at the outset for lack of prejudice. (Strickland v.
Washington, supra, 466 U.S. at p. 697.) Given Green’s clear ineligibility for
resentencing under the Reform Act, we see no likelihood of a more favorable result had
counsel pursued a different course in the trial court.
We also see no merit in Green’s Proposition 47 argument. The resentencing
provision of Proposition 47 is contained in section 1170.18, and reads as follows: “A
person currently serving a sentence for a conviction, whether by trial or plea, of a felony
or felonies who would have been guilty of a misdemeanor under the act that added this
section (‘this act’) had this act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment of conviction in his or
her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, as those sections have been amended or added by this act.” A second degree
robbery under section 211 subjects the perpetrator to imprisonment for two, three or five
years, and would not qualify for misdemeanor sentencing under Proposition 47. (§ 213,
subd. (a)(2).)
The rest of the issues identified in Green’s correspondence address the legality of
the three strikes sentence imposed in 1998 and the adequacy of legal representation in his
prior appeal, going far outside the limited record on appeal in the present proceeding.
Such claims are not cognizable in this appeal. They should have been raised in the
original appeal or through a petition for writ of habeas corpus.2 (See People v. Carrasco
(2014) 59 Cal. 4th 924, 980-981; In re Harris (1993) 5 Cal. 4th 813, 829; In re Waltreus
(1965) 62 Cal. 2d 218, 225; People v. Senior (1995) 33 Cal. App. 4th 531, 533 [“when a
2
A search of court records shows that Green filed two habeas petitions in this
court in 2001 (A095722, A096330), one in 2002 (A097573), and one in 2006 (A114034),
and four such petitions in the Supreme Court in 2001 (S102565), 2002 (S104321), 2006
(S144839), and 2012 (S206505) . Thus, we must conclude Green is fully familiar with
habeas procedure and capable of pursuing that relief if he so desires.
7
criminal defendant could have raised an issue in a previous appeal but did not do so, the
defendant may be deemed to have waived the right to raise the issue in a subsequent
appeal, absent a showing of good cause or justification for the delay”]; see also People v.
Murphy (2001) 88 Cal. App. 4th 392, 396–397.)
Underlying Green’s plea for relief is the fundamental complaint that he has been
“victimized by a most inhumane and draconian law.” We glean from his correspondence
with counsel that his robbery and attempted robbery convictions may have been based on
purse snatchings or other unarmed conduct, rather than a more aggravated form of
robbery. Be that as it may, our recidivism statutes treat all robberies as serious and
violent felonies. (§§ 667.5, subd. (c)(9) [“any robbery”], 1192.7, subd. (c)(19).) Unless
and until the Legislature or the voters adopt an ameliorating statute for which Green
qualifies, he remains subject to three strikes sentencing based on his criminal record.
Trying to fit himself within the purview of the Reform Act simply was doomed to fail,
through no fault of his appellate attorney.
It is not entirely clear to us what relief Green seeks in his request for enlargement
of time to file an amended brief. He obviously wants more time to have a brief filed on
his behalf, but it is not clear whether he intends to file that brief himself, whether he is
asking us to appoint another attorney to replace his current appointed counsel (a request
he has not made explicit),3 or whether he is asking us to order his current counsel to file a
brief raising his perceived “colorable” issues. While it appears to us that the most likely
object of Green’s motion is the last of these alternatives, and as such his request is
untenable under Wende, we see no basis for any of these three forms of relief.
Green’s motion to dismiss the Wende brief seems to suggest he does not wish to
file his own supplemental merits brief because that would cause the appeal to be “no
longer subject to the dictates of Wende,” citing People v. Skenandore (1982) 137
3
We do not construe Green’s filings as a request that we appoint a new attorney to
represent him on appeal. Even if we did, we would not grant the request, as we are
convinced Green received effective representation in this appeal and see no justification
for appointment of a second attorney.
8
Cal. App. 3d 922, 924. (See People v. Woodard (1986) 184 Cal. App. 3d 944, 945–946.)
Thus, Green seems to want full-record review, but he also wants to have specific issues
addressed in briefing by a trained advocate. He cannot have it both ways. Though the
Wende procedure allows for filing of a pro se brief in connection with the court’s record
review (People v. Kelly, supra, 40 Cal.4th at p. 110; Anders v. California (1967) 386 U.S.
738, 744 [time must be allowed the defendant “to raise any points that he chooses”]), a
criminal defendant has no constitutional or state law right to self-representation on
appeal. (Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S.
152, 162–164; People v. Scott (1998) 64 Cal. App. 4th 550, 579.) Accordingly, he has no
right to dictate to his attorney which legal theories she should pursue. (See People v.
Rodriguez (2014) 58 Cal. 4th 587, 624 [trial counsel].) Based in part on Green’s own
statement declining to file a supplemental brief, we deny his request for more time for
more briefing.
We conclude that appointed appellate counsel performed her duties competently,
Green received effective assistance of counsel on appeal, and no arguable issues exist for
briefing.
DISPOSITION
The order denying the petition to recall the sentence and for resentencing is
affirmed. Green’s motion to dismiss the Wende brief is denied, and his request for
enlargement of time to file an amended opening brief is denied.
9
_________________________
Streeter, J.
We concur:
_________________________
Ruvolo, P. J.
_________________________
Reardon, J.
10
A141549/People v. Green
11