People v. Hendrix

• Decision Date: 28 May 2021
• Docket Number: A159523
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. TONY HENDRIX, Defendant and Appellant.

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. TONY HENDRIX, Defendant and Appellant.

A159523

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

May 28, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Superior Court No. 5-161458-5)

MEMORANDUM OPINION¹

In this matter, defendant Tony Hendrix's third appeal, counsel filed an opening brief asking that this court conduct an independent review of the record for arguable issues—i.e., those that are not frivolous, as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed defendant that he had the right to file a supplemental brief on his own behalf, but defendant declined to do so. Because this appeal is not defendant's first appeal as of right, and in light of defendant's failure to file a supplemental brief requesting our independent review of any issues, we will dismiss the appeal.

BACKGROUND²

A jury convicted defendant of assault with a firearm on a peace officer (count 1) (Pen. Code³, § 245, subd. (d)(1)) and exhibiting a firearm in the presence of a peace officer (count 3) (§ 417, subd. (c)). (People v. Hendrix (Aug. 29, 2019, A155792 [nonpub. opn.] (Hendrix II).) With respect to count 1, the jury also found true the allegation that defendant had personally used a firearm within the meaning of section 12022.53, subdivision (b). (Ibid.)

The trial court sentenced defendant to state prison for a term of 14 years, consisting of four years on the conviction for assault with a firearm on a peace officer, with an additional 10-year enhancement pursuant to section 12022.53, subdivision (b). Pursuant to section 654, the court imposed but stayed a two-year sentence on the conviction for exhibiting a firearm in the presence of a peace officer. (Hendrix II, supra, A155792.)

On defendant's first appeal, another panel of this Division affirmed the convictions but remanded to the trial court for resentencing in light of the then-recent enactment of section 12022.53, subdivision (h). (People v. Hendrix (Aug. 3, 2018, A150770) [nonpub. opn.] (Hendrix I).) At the time of defendant's sentencing, the court had no discretion to strike the firearm enhancement. (People v. McDaniels (2018) 22 Cal.App.5th 420, 424.) Section 12022.53, subdivision (h), which became effective on January 1, 2018, now provides that "[t]he court may, in the interest of justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section."

After our decision in Hendrix I, defendant filed a petition for review in the Supreme Court on September 5, 2018. (Hendrix II, supra, A155792.) The Supreme Court denied the petition on October 10, 2018, and the remittitur issued on October 18, 2018. (Ibid.) The trial court, however, conducted a resentencing hearing on September 28, 2018, denying defense counsel's request to continue the hearing so that defendant could be present and declining to exercise its discretion to strike the firearm enhancement pursuant to section 12022.53, subdivision (h). (Ibid.)

On defendant's second appeal, the parties agreed that the trial court had erred, and we again remanded so that defendant could be present when the court "on remand considers whether to exercise its discretion to strike the firearm enhancement pursuant to section 12022.53, subdivision (h)." (Hendrix II, supra, A155792.)

While his second appeal was pending and shortly prior to our decision in Hendrix II, defendant filed in the superior court two pro se motions: (1) a motion to disqualify the trial judge pursuant to Code of Civil Procedure section 170.6, and (2) a motion to disclose peace officer records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The court denied the disqualification motion on the basis that it was untimely and the Pitchess motion on the basis that defendant had failed to establish that there was pending litigation that "might reasonably be affected by disclosure of the records sought."

Defendant then filed his third appeal. After our remand in Hendrix II, the trial court exercised its discretion to strike the firearm enhancement pursuant to section 12022.53, subdivision (h).

DISCUSSION

As noted, defendant's counsel filed an opening brief asking that this court conduct an independent review of the record pursuant to Wende. Counsel also informed defendant that he had the right to file a supplemental brief on his own behalf, but defendant has not done so.

Defendant's counsel correctly recognizes that Wende review is constitutionally required only from a defendant's first appeal from a criminal conviction. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted October 14, 2020, S264278 (Cole) [Wende does not apply to appeals from the denial of postconviction relief]; People v. Figueras (2021) 61 Cal.App.5th 108, 111, review granted May 12, 2021, S267870 (Figueras) [following Cole].) As explained in Cole: "Wende set forth the procedures to be followed during the defendant's 'first appeal of right'—that is, during the direct appeal of his judgment of conviction and sentence." (Cole, at p. 1031; People v. Freeman (2021) 61 Cal.App.5th 126, 133 [Wende procedures are inapplicable to appeal from an order revoking post-release community supervision, as such an appeal is not a direct appeal from a judgment of conviction].)

We will apply the reasoning of Cole, Figueras, and Freeman here, as defendant's appeal from the order denying his Pitchess motion and motion to disqualify is not a direct appeal from a judgment of conviction. Because defendant has failed to file a supplemental brief raising any issues for our review, we shall dismiss the appeal. (Cole, supra, 52 Cal.App.5th at p. 1028 [court may "dismiss appeal as abandoned" when counsel files a Wende brief and defendant fails to file a supplemental brief].)

We briefly note, however, that the result would be no different if we exercised our discretion to conduct an independent review of the denial of defendant's motions. (People v. Flores (2020) 54 Cal.App.5th 266, 269 [courtmay exercise discretion to conduct Wende review even where it is not constitutionally required].) The trial court was correct when it denied defendant's motion to disqualify as untimely, as he filed his motion after the trial judge presided over his trial and after the trial judge initially declined to strike the enhancement upon our remand in Hendrix I. (Birts v. Superior Court (2018) 22 Cal.App.5th 53, 58 [" 'A peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action. The rule is designed to prevent forum shopping' "].) The trial court also correctly denied defendant's post-conviction Pitchess motion, as nothing in the arresting officers' files could be material to the only aspect of litigation then pending: the court's decision whether to exercise its discretion to strike the firearm enhancement under section 12022.53, subdivision (h). (People v. Nguyen (2007) 151 Cal.App.4th 1473, 1477 [to obtain Pitchess discovery, defendant must file affidavits "demonstrating the materiality of the information to the pending litigation"].) And in any event, because the trial court ultimately exercised its discretion to strike the firearm enhancement—thereby lopping several years off defendant's sentence—defendant has failed to show any prejudice from...