People v. Bouras CA3

Filed 8/17/21 P. v. Bouras CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C092308

v. (Super. Ct. No. 19HC00317, CR82074) GEORGE BOURAS,

Defendant and Appellant.

Appointed counsel for defendant George Bouras asked 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).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the trial court’s order denying his petition for recall and resentencing. I In 1988, defendant was convicted of first degree murder and sentenced to a term of 25 years to life. In 2019, he filed a petition for recall and resentencing pursuant to Penal Code section 1170.91.1

1 Undesignated statutory references are to the Penal Code.

1

Section 1170.91 provides that if a trial court determines a defendant convicted of a felony is or was a member of the military who may be suffering from enumerated ailments as a result of such service, the circumstances shall be considered as a factor in mitigation when imposing a term under section 1170, subdivision (b). (§ 1170.91, subd. (a).) In addition, it establishes a process to petition for recall and resentencing for those defendants currently serving a felony sentence. (§ 1170.91, subd. (b).) Here, the trial court denied defendant’s petition, concluding defendant is not eligible for relief as he was not sentenced under section 1170, subdivision (b), but rather under section 190, subdivision (a). II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. Defendant filed two supplemental briefs. Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a petition brought pursuant to section 1170.91 remains an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel’s representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.)