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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.
1