People v. Tennard CA4/2

• Court: California Court of Appeal
• Decided: July 21, 2022
• Docket: E078755
• Status: Unpublished

Opinion

Filed 7/21/22 P. v. Tennard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E078755

v. (Super.Ct.No. SWF1500345)

THOMAS RAYMILLIER TENNARD, OPINION JR.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Dismissed.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Thomas Raymillier Tennard, Jr., appeals from a

postjudgment order denying his Penal Code1 section 1170.95 petition for resentencing

under the procedures established by Senate Bill No. 1437. Appointed appellate counsel

filed an opening brief that sets forth the facts of the case and asks this court to review the

record and determine whether there are any arguable issues on appeal. (People v. Wende

(1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).)

Because defendant is not entitled to Wende/Anders review from denial of the challenged

postjudgment motion, and neither he nor his counsel has raised any claim of error in the

denial, we dismiss his appeal as abandoned.

PROCEDURAL BACKGROUND

In 2015, a jury found defendant guilty of one count of inflicting corporal injury on

his cohabitant girlfriend. (§ 273.5, subd. (a); People v. Tennard (2017) 18 Cal.App.5th

476, 480 (Tennard).) A trial court found that he had four prison priors (§ 667.5,

subd. (b)) and two prior strikes (§ 667, subds. (b)–(i)), including a 1991 conviction for

forcible rape, a “super strike” (§§ 261, subd. (a)(2), 667, subd. (e)(2)(C)(iv)(I)).

(Tennard, at p. 480.) Defendant was sentenced to 25 years to life on his conviction, plus

a consecutive one-year term on one of his prior prisons. (Id. at pp. 480-481.)

1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 Defendant appealed his conviction, and this court affirmed the judgment but

remanded the matter for the trial court to make a correction in the abstract of judgment.

(Tennard, supra, 18 Cal.App.5th at p. 488.)

On March 10, 2022, defendant filed in propria persona, a “Petition for

Resentencing Pursuant to Penal Code 1170.95 SB 1437 1170(D)1, 1170.03 SB.81 [sic].”

On March 25, 2022, the trial court held a hearing and noted that defendant’s

conviction for inflicting corporal injury (§ 273.5) was “not amenable to 1170.95” and that

there was “no murder conviction, nothing related to murder.” Defense counsel replied

that she “[did not] disagree with the Court on that” and objected to a dismissal “on equal

protections.” The court then denied the petition since defendant failed to make a prima

facie case for relief.

Defendant filed a timely notice of appeal of the “[d]enial of petition for

resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437.”

DISCUSSION

After the notice of appeal was filed, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436

and Anders, supra, 386 U.S. 738, setting forth a statement of the case, and identifying the

following potential arguable issues: (1) whether the trial court erred in finding there was

no qualifying charge eligible for resentencing pursuant to section 1170.95; (2) whether

section 1170.95 applies to defendant’s case under the federal and state constitutional

guarantees of equal protection; and (3) whether the trial court erred in failing to order

defendant to be resentenced pursuant to any other statute besides section 1170.95.

3 Defendant was offered an opportunity to file a personal supplemental brief, which

he has not done. Thus, no claim of error has been raised.

Our high court is currently considering whether an appellate court must conduct an

independent review of the record when counsel files a Wende brief after the trial court

denies a petition for resentencing under section 1170.95. (People v. Delgadillo (Nov. 18,

2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305.) Recent Court

of Appeal cases have consistently held that we are not required to conduct such a review

and may dismiss an appeal as abandoned if the petitioner does not file a supplemental

brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review

granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review

granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,

review granted Mar. 17, 2021, S266853.) Some cases have explained that we have

discretion to review the record independently for arguable issues and should do so in the

interest of justice, either where an initial review does not show the defendant is obviously

ineligible for relief or as a routine matter. (See People v. Gallo (2020) 57 Cal.App.5th

594, 598-599, 271; People v. Flores (2020) 54 Cal.App.5th 266, 269-274; People v.

Allison (2020) 55 Cal.App.5th 449, 456.)

In this case, we conclude defendant is not entitled to Wende/Anders review of the

order denying his petition for resentencing relief under section 1170.95. The right to

Wende/Anders review applies only at appellate proceedings where defendant has a

previously established constitutional right to counsel. (People v. Serrano (2012) 211

Cal.App.4th 496, 500-501; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537.)

4 The constitutional right to counsel extends to the first appeal of right, and no

further. (Serrano, at pp. 500-501.) The appeal before us, “although originating in a

criminal context, is not a first appeal of right from a criminal prosecution, because it is

not an appeal from the judgment of conviction.” (Id. at p. 501.) While a criminal

defendant has a right to appointed counsel in an appeal from an order after judgment

affecting his substantial rights (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421,

subd. (c)), that right is statutory, not constitutional. Thus, defendant is not entitled to

Wende review in such an appeal. (See Serrano, at p. 501 [no Wende review for denial of

postconviction motion to vacate guilty plea pursuant to section 1016.5].)

Applying Serrano here, defendant has no right to Wende/Anders review of the

denial of his section 1170.95 petition for resentencing. Because neither defendant nor his

counsel has raised any claim of error, and because this appeal concerns a postjudgment

proceeding in which there is no constitutional right to counsel, we will dismiss

defendant’s appeal as abandoned.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. I concur:

SLOUGH J.

5 [The People v. Thomas Raymillier Tennard, E078755]

RAMIREZ, P. J., Dissenting

I respectfully dissent. Unless and until our Supreme Court instructs otherwise, I

continue to embrace our opinion in People v. Gallo (2020) 57 Cal.App.5th 594, 599,

which concluded the interests of justice call for independent review of the record in post-

judgment no-issue appeals even if the defendant has not filed a supplemental brief.

RAMIREZ P. J.