People v. Barnett CA4/2 ( 2021 )

Filed 2/5/21 P. v. Barnett CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E075534
v. (Super.Ct.No. RIF1301306)
CARY EUGENE BARNETT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Cary Eugene Barnett appeals from an order of the
Riverside County Superior Court summarily denying his petition for modification of his
sentence to strike three enhancements added to his term.
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BACKGROUND
A jury found defendant guilty of two counts of assault with a semiautomatic
firearm and found true the attendant allegations that he personally used a firearm during
the commission of each of those felonies (Pen. Code,1 §§ 245, subd. (b), 12022.5,
subd. (a)), drawing and exhibiting a firearm in a threatening manner and in the presence
of another occupying a motor vehicle on a highway (§ 417.3), and possession of a firearm
by a convicted felon (§ 29800, subd. (a)(1)). Defendant admitted a prior prison term
conviction. In January 2014, he was sentenced to a total of 15 years in state prison,
which included five years four months imposed for the two enhancements for personal
use of a firearm and one year for the prior prison term enhancement.
Defendant appealed the judgment to this court, and we affirmed. (People v.
Barnett (Feb. 3, 2015, E060400) [nonpub. opn.], review den. Apr. 22, 2015.) We granted
defendant’s request for judicial notice of the record and opinion in that appeal.
On March 16, 2020, defendant petitioned the trial court for modification of his
sentence on the grounds that the laws requiring the court to impose the enhancements to
his sentence had changed. He pointed out that Senate Bill No. 1393 amended section 667
to make discretionary the addition of a five-year term for a prior serious felony, which
theretofore had been mandatory. (Stats. 2018, ch. 1013, § 1, eff. Jan. 1, 2019.) He also
noted that Senate Bill No. 136 amended section 667.5 to restrict prior prison term
enhancements to terms served for sexually violent offenses. (Stats. 2019, ch. 590 § 1, eff.
1 All further statutory references are to the Penal Code.
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Jan. 1, 2020.) The court summarily denied the petition. Defendant appealed, and we
appointed counsel to represent him.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth a
statement of the case, a summary of the facts, and four potential arguable issues:
(1) whether the trial court had jurisdiction to modify defendant’s sentence; (2) whether
the trial court erred when it denied defendant’s petition for resentencing in light of Senate
Bill No. 1393; (3) whether the trial court erred when it denied defendant’s petition for
resentencing in view of the amendment to section 12022.5, subdivision (a) (the use-of-
firearm enhancement), Senate Bill No. 620 (Reg. Sess. 2017-2018), effective January 1,
2018; and, (4) whether the court erred when it denied defendant’s request to strike the
one-year term imposed for the prior prison term enhancement in light of the amendment
to section 667.5 deleting that enhancement in all cases except for specified felonies not
applicable in this case. Counsel contends this court is required to undertake review of the
entire record because the brief does not raise a specific issue.
When, in an indigent defendant’s first appeal of right, appointed appellate counsel
files an opening brief that does not present an arguable issue, it is well settled that the
appellate court is required to offer the defendant an opportunity to submit a personal
supplemental brief and to review the entire record whether or not the defendant files a
brief. (Wende, supra, 25 Cal.3d at pp. 441-442.)
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We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review
granted October 14, 2020, S264278, held the constitutional bases for Wende procedures
apply only to a defendant’s direct appeal from the judgment. We also recognize,
however, that we have discretion to exercise our inherent supervisory powers to apply
Wende procedures to appeals from denials of postconviction relief in which appointed
appellate counsel files a no-issues brief. (Cole, at pp. 1038-1039 [Second App. Dist.,
Div. Two, did not review the record and exercised discretion to dismiss the appeal as
abandoned when defendant did not file a supplemental brief]; People v. Flores (2020) 54
Cal.App.5th 266, 269, 273-274 [Div. Three of this court exercised discretion to conduct
independent review of the record even though defendant did not file a supplemental
brief]; see generally Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fns. 7, 8
[court has inherent power to retain or dismiss an appeal from a conservatorship
proceeding upon receipt of a no-issues brief from appointed counsel].)
In this case, appointed appellate counsel filed a no-issues brief in an appeal from
orders denying an indigent defendant postconviction relief. We offered defendant an
opportunity to file a personal supplemental brief, which he has not done. 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.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
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