People v. HodgesPeople v. Hodges
Shirilvin Dwayne Hodges purports to appeal from the trial court‘s order denying his motion to vacate his sentence. We appointed counsel to represent him. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we independently review
Facts and Procedural Background
The following procedural history is drawn from this court‘s unpublished decision in appellant‘s direct appeal from his conviction (People v. Shirilvin Dwayne Hodges (Feb. 15, 2005, B171277) [nonpub. opn.]): In July 2001, appellant was convicted by jury of the following violations of the Penal Code: kidnapping (
A Habeas Petition Masquerading as a Postjudgment Motion
In May 2022, appellant filed a motion to vacate his sentence on the basis that the 230 years to life sentence was unauthorized because his three prior violent or serious felony convictions under the “Three Strikes” law all arose from the same underlying case. Consequently, appellant contended he should only be sentenced as a second strike offender. This was, in essence, a petition for a writ of habeas corpus. The trial court denied relief. That should have ended this litigation. (E.g., People v. Garrett (1998) 67 Cal.App.4th 1419 [denial of a petition for writ of habeas corpus is not appealable]; see also In re Hochberg (1970) 2 Cal.3d 870, 876 [same].)
Discussion
Because the instant purported appeal is from an order denying postconviction relief rather than a first appeal as of right from a criminal conviction, appellant is not entitled to our independent review of the record pursuant to Wende, supra, 25 Cal.3d 436, or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738.
In his first supplemental brief, appellant asks this court to “disregard” counsel‘s opening brief and “reappoint . . . another lawyer,” stating various contentions. For example, appellant contends counsel was “ineffective” because he did not speak with appellant in person, did not address specific case law appellant believed applied to his case, and did not challenge DNA evidence presented at trial. According to appellant, “[it is] virtually improbable” that counsel could have “thoroughly review[ed]” the record given the timeframe provided.
Appellant‘s contentions are meritless.
Here, counsel filed a declaration with the opening brief and declared under penalty of perjury: “I have read the entire record. I have discussed in correspondence with my client my findings and his views regarding the case.” Although appellant would have preferred to speak directly to counsel, there is no evidence that appellant‘s interests were not well protected by counsel‘s review of the record and his written correspondence to that effect.
Furthermore, the record shows that appellant has previously filed another request in the trial court challenging his sentence as a third strike offender and citing People v. Vargas (2014) 59 Cal.4th 635, the case appellant contends counsel should have addressed in this appeal. The trial court properly construed the document as a habeas petition and denied it, concluding appellant was “subject to an enhanced sentence under the ‘Three Strikes’ law.” It also expressly found that “each prior crime stems from distinct, separate, and independently-punishable acts . . . .”
Given these facts, appellant‘s disagreement with counsel‘s legal determination does not amount to ineffective representation on appeal. “A defendant seeking to discharge appointed counsel and substitute another
We have no jurisdiction to entertain this purported appeal from the denial of appellant‘s “motion.” We construe through form to substance. As indicated, this request is properly construed as a petition for writ of habeas corpus. The right to appeal is statutory and a judgment or order is not appealable unless expressly authorized by statute. (People v. Mazurette (2001) 24 Cal.4th 789, 792.) An order made after judgment affecting a defendant‘s substantial rights is appealable. (
Disposition
The appeal is dismissed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
Craig E. Veals, Judge
Superior Court County of Los Angeles
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.