Filed 12/5/19 P. v. Weatherspoon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

QUINCY SAMUEL WEATHERSPOON,

Defendant and Appellant.

E073616

(Super.Ct.No. RIF105671)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.

Quincy Samuel Weatherspoon, in pro. per.; Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On September 12, 2002, a felony complaint charged defendant and appellant Quincy Samuel Weatherspoon with corporal injury resulting in a traumatic condition on a spouse or cohabitant (D.M.) under Penal Code section 273.5, subdivision (a); and corporal injury resulting in a traumatic condition on a child (T.J.) under Penal Code section 273d, subdivision (a).

On April 25, 2005, the People moved to dismiss the charges and the trial court dismissed both counts “in the interest of justice” under Penal Code section 1385. According to the prosecutor, “the defendant’s case was dismissed in the interests of justice, but not because he was innocent. On December 14, 2004, in case No. RIF111100, the jury found defendant guilty of burglary, robbery, kidnapping for robbery and more. On April 27, 2005, the court sentenced the defendant to 35 years and 4 months to life in prison. On that same day, the [deputy district attorney] dismissed this case (RIF10671) in the interests of justice. The reasons for the dismissal appear obvious; there was no need to pursue a conviction for a crime carrying much less punishment when the defendant received a life sentence in prison.”

On December 5, 2018, defendant, in pro. per., filed a motion for determination of factual innocence under Penal Code section 851.8 “and an order sealing and destruction of arrest record and deeming the arrest, detainment and citation of statutory, arrest record language never occurred.” On January 9, 2019, the People filed an opposition.

On January 11, 2019, the trial court found that defendant had failed to carry his burden under Penal Code section 851.8, and denied the petition. Defendant was not present or represented at the hearing. Although defendant requested that counsel be appointed in his motion, the court did not address his request.

On May 3, 2019, defendant filed his notice of appeal. On September 11, 2019, we granted defendant’s petition for writ of habeas corpus “to allow petitioner to file a late notice of appeal . . . and to deem it constructively filed within the 60-day period.”

B. FACTUAL HISTORY

T.J. reported that defendant struck him with a wet belt approximately 20 times on his bare buttocks. Defendant then made T.J. wall-sit against a wall and hold a book over his head. Defendant threatened to use the belt on him again if T.J. dropped the book.

On another occasion, D.M. reported that defendant choked her, kicked her, picked her up off the ground by the neck, slammed her head into the wall and floor, and punched her in the head.

The charges against defendant based on these acts were dismissed without a hearing or trial.

DISCUSSION

After defendant’s motion for reconsideration was deemed to be a notice of appeal, this court appointed counsel to represent defendant. 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 potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error:

1. Did defendant have the right to appointed counsel for the underlying petition and was any error prejudicial?

2. Was defendant’s petition improperly denied?

We offered defendant an opportunity to file a personal supplemental brief. Defendant filed an 11-page typewritten supplemental brief with attached exhibits. In essence, defendant first appears to be arguing that the trial court erred in denying his motion without giving him “a fair opportunity to respond [to] the District Attorney’s Opposition to his Petition to Seal.” In support of this contention, defendant cites to the procedural guidelines set forth under California Rules of Court, rule 4.551(c)(2) for habeas corpus proceedings. Here, defendant filed his motion under Penal Code section 851.8, not a petition for writ of habeas corpus. Defendant also appears to be arguing that he was denied due process because he was not appointed counsel to represent him for the motion. However, as defendant’s appellate counsel provided in the opening brief, “[i]t appears only one published case has addressed this question and it concluded there is no right to appointed trial counsel in the context of a statutory [Penal Code] section 851.8 petition. (People v. Scott M. (1985) 167 Cal.App.3d 688, 702, discussed, cited with approval on some grounds, and disapproved on other grounds in People v. Adair (2003) 29 Cal.4th 895, 906 (Adair).)” Therefore, there was no due process violation in this case.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

MENETREZ

J.