California Court of Appeal Dec 15, 2020 No. E075109Unpublished
Filed 12/15/20 P. v. Ulery 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075109
v. (Super.Ct.No. 19PA002126)
CHRISTOPHER CHARLES ULERY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti,
Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Christopher Charles Ulery appeals from an order of the
San Bernardino Superior Court denying his motion to dismiss the People’s petition for
revocation of his parole. We will affirm.
1
Defendant was convicted in July 2017 of first degree burglary (Pen. Code, § 4591),
receiving a stolen vehicle (§ 496d, subd. (a)), and vehicle theft with a prior conviction for
the same type of offense (§ 666.5, subd. (a)). He was released on parole on December
The majority provide no reason for abandoning this precedent and make no attempt to
justify expending the resources, including time, it takes to give the record the attention required
to perform a good faith independent review. They cite People v. Cole (2020) 52 Cal.App.5th
1023, but in that case the Court of Appeal followed the path I would follow here; they dismissed
the appeal as abandoned without independently reviewing the record. Indeed, the Cole court
pointed out the courts could save even more public resources by dismissing such appeals by
order, without writing full opinions. (Id. at p. 1040.) Cole provides no support for the majority’s
choice here. All it does is acknowledge the uncontroversial point that appellate courts have
discretion to address issues not raised by the parties.
In the other case the majority cite, our colleagues in District Four, Division Three
explained that they exercised their discretion to independently review an appeal of an order
denying Penal Code section 1170.95 relief. They reasoned the liberty interests of the petitioner
outweighed what they described as “the modest fiscal and administrative burdens to the courts.”
(People v. Flores (2020) 54 Cal.App.5th 266, 274.) I find that justification unsatisfying. If we
were to follow that logic, then we would have reached the point where every Wende brief filed in
2
a postconviction proceeding would require us to take these additional steps. But that’s not the
law, nor should it be.
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.)
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.) However, absent a strong reason for expending judicial
resources to conduct an independent review, we should dismiss appeals like this as abandoned,
when neither counsel nor the appellant can identify an issue warranting reversal.
SLOUGH J.
3
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's order denying the defendant's motion to dismiss a parole revocation petition, finding no arguable issues after conducting an independent review of the record.
Issues
Did the trial court err in denying the motion to dismiss the parole revocation petition based on the 180-day confinement limit under Penal Code section 3000.08, subdivision (g)?
Should the appellate court conduct an independent review of the record in a postconviction appeal where appointed counsel filed a no-issues brief?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We exercised our discretion to conduct an independent review of the record in keeping with People v. Kelly (2006) 40 Cal.4th 106 and found no arguable issues.”