California Court of Appeal Feb 1, 2021 No. E075974Unpublished
Filed 2/1/21 P. v. Saenz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075974
v. (Super.Ct.No. CR66620)
JUAN SAENZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed with directions.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Juan Saenz, Jr., filed a petition for resentencing pursuant
to Penal Code section 1170.95, which the court denied. After counsel for defendant filed
a notice of appeal, this court appointed counsel to represent him. Counsel has filed a
1
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 the case and two potentially
arguable issues: whether the court erred in considering defendant’s record of conviction
1 The reporter’s transcript reflects that the court summarily denied the petition. The minute order indicates the court dismissed the petition without prejudice. We shall direct the superior court clerk to correct the minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing court has the authority to correct clerical errors in the minute order. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)
2 On January 21, 2021, after we had already reviewed the record, written the opinion, and circulated the opinion for signatures, defendant filed a “Notice For Voluntary Dismissal.” Because our independent review has found a material error in the minute order, the request to dismiss is denied.
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constitutional underpinnings do not apply to appeals from the denial of postconviction
relief.”].) We respectfully disagree.
We agree with another panel of this court, which recently held that in uncontested
appeals from the denial of a Penal Code section 1170.95 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. Menetrez, J.); accord People v. Flores
(2020) 54 Cal.App.5th 266, 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.
Indeed, the record in the instant case consists of only 87 pages in the clerk’s
transcript and one page in the reporter’s transcript. Moreover, our independent review
has ascertained one error in the record. (See fn. 1, ante.) 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.
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III. DISPOSITION
The order is affirmed. The superior court clerk is directed to modify the
August 21, 2020 minute order to reflect the trial court denied, rather than dismissed,
defendant’s petition for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. I concur:
RAMIREZ P. J.
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[People v. Saenz, E075974]
RAPHAEL, J., Dissenting.
As this appeal comes to us with an opening brief raising no issues, we should
dismiss it as abandoned. (People v. Scott (2020) 58 Cal.App.5th 1127.)
The majority opinion is the reductio ad absurdum of the dozens that our division
has been issuing in such uncontested appeals. The entire three paragraph discussion is a
declaration that the majority feels it important to write an opinion.
Even worse than an opinion about nothing, however, is that we appear not to have
jurisdiction at all. The defendant has requested that we dismiss the appeal and states that
he never authorized the appeal, where the notice of appeal was signed by only his
attorney. “Because an attorney cannot appeal without the client’s consent, a notice of
appeal shown to have been signed by an unauthorized attorney is ineffectual in
preserving the right to appeal. [Citations.]” (In re Alma B. (1994) 21 Cal.App.4th 1037,
1043.)
Next, after deciding to hear the appeal and write an opinion, the majority is
burdening the trial court with an immaterial correction to the minute order that the
defendant did not want to appeal from. We are taking an unwanted, uncontested appeal
and creating needless work for the trial court. I respectfully dissent.
RAPHAEL J.
1
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, finding no arguable issues after an independent review of the record. The court also directed the superior court to correct a clerical error in the minute order to reflect that the petition was denied rather than dismissed.
Issues
Whether the trial court erred in considering the defendant's record of conviction.
Whether the defendant's record of conviction established that he was the sole and actual perpetrator of the murder.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“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.”
“The superior court clerk is directed to modify the August 21, 2020 minute order to reflect the trial court denied, rather than dismissed, defendant’s petition for resentencing.”