People v. Whitfield CA4/2 ( 2021 )

Filed 12/21/21 P. v. Whitfield CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E077387
v. (Super.Ct.No. BAF004743)
BENNIE LEE WHITFIELD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance by Plaintiff and Respondent.
1
Defendant and appellant, Bennie Lee Whitfield, filed a petition for resentencing
pursuant to Penal Code section 1170.18,1 which the court denied without prejudice. After
defendant filed a notice of appeal, this court appointed counsel to represent him.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
facts, a statement of the case, and identifying one potentially arguable issue: whether the
court erred in finding defendant had failed to prove the value of the stolen vehicle was
$950 or less. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2006, the People charged defendant with theft of a vehicle having
suffered a prior vehicle theft conviction (Pen. Code, § 666.5, subd. (a), Veh. Code,
§ 10851, count 1) and receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a), count 2).
On April 3, 2006, pursuant to a negotiated plea, defendant pled guilty to count 1. In
return, the court dismissed the remaining count and sentenced defendant to the low term
of two years in prison.
On December 31, 2020, defendant filed a petition for resentencing pursuant to
section 1170.18. The People filed a response, maintaining defendant was ineligible for
the relief requested because he had failed to meet his burden. The court set the matter for
a hearing.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
At the hearing on May 20, 2021, defense counsel stated: “[T]his is a theft of a
motorcycle. I believe it was a 250 Ninja Kawasaki. We were able to look at the police
report and the police report factored it between $300 and $4,000. I can also represent to
the Court that the officer mentioned that the Kawasaki was in good condition. The
Kawasaki was two years old, and [the People] and I determined a value of a base model
of . . . a 2004 base model was . . . .” The People interjected, “$2,999.” The court then
found “that the defense has failed to carry their burden, so the petition is denied without
prejudice.”
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. We recognize that one panel of this court has held that in uncontested
appeals from postjudgment orders, there is no reason to conduct a Wende review of the
record and that such appeals should be dismissed by order. (People v. Scott (2020)
58 Cal.App.5th 1127, 1131-1132, review granted Mar. 17, 2021, S266853 (but see dis.
opn. of Miller, J.); accord People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review
granted Oct. 14, 2020, S264278 [“Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief.”]; accord People v. Figueras (2021)
61 Cal.App.5th 108, review granted May 12, 2021, S267870.) We respectfully disagree.
We agree with another panel of this court, which held that in uncontested appeals
from the denial of a postjudgment petition, “we can and should independently review the
record on appeal in the interests of justice.” (People v. Gallo (2020) 57 Cal.App.5th 594,
599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54 Cal.App.5th
3266, 269 [“[W]hen an appointed counsel files a Wende brief in an appeal from a summary
denial of a section 1170.95 petition, a Court of Appeal 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 [“[W]e have the discretion to
review the record in the interests of justice.”].) This procedure provides defendants an
added layer of due process while consuming comparatively little in judicial resources.
For instance, the record on appeal in this case consists of only 16 pages in the clerk’s
transcript and one page in the reporter’s transcript. Pursuant to the mandate of People v.
Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential
error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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