People v. Henderson CA3 ( 2014 )

Filed 4/15/14 P. v. Henderson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C074229
Plaintiff and Respondent, (Super. Ct. No. CM036550)
v.
SETH DUANE HENDERSON,
Defendant and Appellant.
Appointed counsel for defendant Seth Duane Henderson has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has filed a supplemental
brief, making a similar request. We shall affirm the judgment.
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BACKGROUND
On May 20, 2012, defendant stood on his front porch, intoxicated, yelling
obscenities at his next door neighbor, Jessica. Defendant yelled “fuck you” at Jessica and
repeatedly threatened her, stating: “I’m going to fuck you up.” Jessica’s nine-year-old
daughter heard the threats; Jessica feared for both her and her daughter’s safety.
Defendant pleaded no contest to making criminal threats. (Pen. Code, § 422). He
also pleaded no contest to a misdemeanor charge in an unrelated case, Butte County case
No. SCR84375. In exchange for his plea, the remaining count (cruelty to a child, Pen.
Code, § 273a, subd. (b)) was dismissed with a Harvey1 waiver, along with the charges in
another unrelated case. As a result of defendant’s plea, the trial court revoked his
probation in yet another unrelated case, No. SCR71783.
Shortly after entering his plea, defendant filed a Marsden2 motion and asked to
withdraw his plea. The trial court denied both motions.
On April 17, 2013, the trial court sentenced defendant to the upper term of three
years in state prison, but stayed execution of that sentence. The court ordered defendant
to serve three years of formal probation and to complete a one-year residential substance
abuse treatment program as a condition of probation.3 The court also ordered defendant
to pay various fines and fees.
Five notices of appeal were filed from the disposition described above. The first
four were filed by defendant himself, from April 24 through May 30, 2013. In three of
those notices, defendant requested a certificate of probable cause; each time his request
1 People v. Harvey (1979) 25 Cal.3d 754.
2 People v. Marsden (1970) 2 Cal.3d 118.
3 The probation order was for the current conviction as well as defendant’s misdemeanor
conviction in case No. SCR84375. The court terminated defendant’s probation
unfavorably in case No. SCR71783.
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was denied. On May 31, 2013, trial counsel filed the fifth notice of appeal but did not
request a certificate of probable cause, indicating that the appeal was based on matters
occurring after defendant’s plea that did not affect the plea’s validity.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asking that we “examine” whether the trial
court correctly denied his Marsden motion and his motion to withdraw his plea. He also
asks that we determine whether his counsel provided him with adequate representation,
noting the timing of counsel’s filing of notice of appeal in defendant’s case.
First, reviewing the record for error is precisely the function of an appeal filed
pursuant to Wende, supra, 25 Cal.3d 436. Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition more favorable
to defendant.
Second, although counsel filed the fifth of five notices of appeal, his filing was
within 60 days of defendant’s sentencing and was therefore timely. While counsel did
not request a certificate of probable cause, the trial court had already denied that request
three times. It appears further requests would have been futile.
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DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
MURRAY , J.
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