California Court of Appeal Sep 22, 2020 No. E074208Unpublished
Filed 9/22/20 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074208
v. (Super.Ct.No. FSB19931)
FRANK XAVIER RODRIGUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Frank Xavier Rodriguez appeals from an order of the San
Bernardino Superior Court denying his Penal Code section 1170.95 (Stats. 2018,
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ch. 1015, § 4, eff. Jan. 1, 2019) petition for resentencing of his murder conviction.1 We
will affirm.
In 1996 and 1998, defendant committed a variety of criminal acts. They included
a carjacking incident in 1996 in which he fired a gun into a car, killing one man and
[2020 Cal.App. Lexis 839 at p. [12].) They concluded the liberty interests of the petitioner
measured against what they described as “the modest fiscal and administrative burdens to the
courts” weighed in favor of conducting an independent review. I find this reason unsatisfying. I
don’t see how the interest involved in a criminal resentencing petition is more important than the
issues involved in juvenile and mentally disordered offender proceedings. Any appeal involving
criminal punishment will implicate the liberty interests of the appellant, but in my view the
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opportunity we gave Rodriguez to file a supplemental brief (an opportunity he declined) is
sufficient as an extra layer of process to protect that interest.
As the Court of Appeal explained in Serrano, there is a very strong rationale for finding
an appeal abandoned and dismissing it without independently reviewing the record—the burden
on the courts (and therefore the public) of conducting such a review. That rationale is as
compelling in 2020 as it was in 2012. “In these times of decreasing judicial budgets and the
resulting overall reduction in public access to justice, [the state’s] interests cannot be
understated. . . . The judicial resources expended to conduct an independent review in each of
these cases are innumerable, and relative to the incidence of reversal in these cases, wholly
unproductive and a waste of scarce judicial resources. Where a defendant has been afforded all
the constitutional protections of a first appeal of right, including the right to Wende review where
appropriate, we find that he is not entitled to Anders/Wende procedures in subsequent appeals,
including collateral attacks on the judgment.” (People v. Serrano, supra, 211 Cal.App.4th at
p. 503.)
Though the Flores court characterizes these burdens as modest, I don’t believe that view
is supported in fact. In July alone, our court put out at least 12 opinions (all unpublished) after
independently reviewing the record in appeals of orders denying postjudgment petitions and
another three explaining why we were dismissing instead of conducting an independent review.
That constituted about half of our Wende caseload for the month as well as about 16 percent of
our full caseload. Assuming we provided a thorough review of the records, that’s a substantial
amount of work. I don’t think the squeeze was worth the juice. Ultimately, we affirmed the trial
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court in each of those opinions. What’s more, we provided the exact same substantive analysis in
all of them, stating only that we had independently reviewed the record for potential error and
found no arguable issues.
It seems to me the better approach is to dismiss such appeals by order and without
opinion and use our scarce resources on other contested cases sitting on our shelves awaiting
review. (People v. Cole, supra, 52 Cal.App.5th at p. 1040.) The exception would be for cases
where the appellant accepts our invitation and files their own brief identifying issues for appeal.
Though that procedure is not required by due process, it is the sort of extra layer of protection we
may expect will, from time to time, identify important issues appointed appellate counsel missed.
(Ibid.)
However, absent a strong reason for expending judicial resources to conduct an
independent review, we should dismiss this appeal—and appeals of this category—as
abandoned, when neither counsel nor the appellant can identify an issue warranting reversal.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1170.95, concluding after an independent review of the record that there were no arguable issues.
Issues
Whether the defendant was entitled to relief under Penal Code section 1170.95 regarding his murder conviction.
Whether the court should apply Wende procedures to an appeal from a denial of postconviction relief.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court denied the motion, finding defendant ineligible for relief because he was the actual killer, and he had acted with an intent to kill.”
“We conducted an independent review of the record and found no arguable issues.”