Opinion
C092556
04-06-2022
THE PEOPLE, Plaintiff and Respondent, v. FRANK LEE DEARWESTER, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 11F02261
Robie, J.
This appeal arises from the trial court's denial of defendant Frank Lee Dearwester's request to resentence him pursuant to Penal Code section 1170.91. Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant subsequently filed a supplemental brief contending the trial court improperly denied his petition. We affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant sexually molested the teenage daughter of his girlfriend for over two years. (People v. Dearwester (Nov. 4, 2014, C074293) [nonpub. opn.].) While in custody, defendant then tried to hire a fellow inmate to kill the teenage victim so she could not testify against him. (Ibid.) On June 12, 2013, a jury found defendant guilty of 10 counts of lewd acts with a child under the age of 14 and one count of solicitation for murder. (Ibid.)
On our own motion we take judicial notice of our opinion affirming the judgment of conviction and sentence in defendant's direct appeal. (Evid. Code, §§ 459, subd. (a) ["[t]he reviewing court may take judicial notice of any matter specified in Section 452"]; 452, subd. (d) [permitting a court to take judicial notice of records of "any court of this state"].)
On July 11, 2013, the trial court sentenced defendant to 32 years in prison. At the sentencing hearing, the court explained "[t]his is a case in which there was [an] ongoing pattern of child molestation against the child who was groomed, who was taken advantage of because of [sic] the person, the defendant, had a position of trust. [¶] In addition to that, this case is aggravated by . . . defendant attempt[ing] to have the victim killed in this case as well as her family if that became necessary." The original probation report noted defendant denied committing the offenses, claiming the minor was lying.
Defendant appealed and we affirmed the judgment. (People v. Dearwester, supra, C074293.)
On August 2, 2019, defendant filed a petition to recall his sentence under section 1170.9 or for resentencing under section 1170.91. Defendant alleged the court must consider his "mental health problems stemming from childhood abuse, and aggravated by military service." The trial court denied any relief under section 1170.9 for lack of jurisdiction but ordered briefing on section 1170.91.
On August 21, 2020, the trial court held a hearing on the petition. After argument by both sides, the trial court found defendant is ineligible under section 1170.91 because the statute requires the impacts to have been developed because of military service, not just worsened by military service. The trial court also found that even if section 1170.91 applied, this was "one of the worse cases" it had seen so it "would not disturb the sentence in this matter."
Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal.
Whether the protections afforded by Wende and the United States Supreme Court's decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a postjudgment motion to modify a sentence is an open question. Our Supreme Court is set to resolve the issue in People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted February 17, 2021, S266305.
In Figueras, we described the Anders/Wende procedure that we held applicable to appeals from postjudgment petitions:" '[C]ounsel appointed in such appeals is required to independently review the entire record and, if counsel so finds, file a brief advising the appellate court that there are "no arguable issues to raise on appeal"; [counsel must inform] the defendant [that he or she] has a right to file a supplemental brief [within 30 days of the filing of counsel's brief]; and this court has the duty to address any issues raised by the defendant but otherwise may dismiss the appeal without conducting an independent review of the record.'" (People v. Figueras (2021) 61 Cal.App.5th 108, 112-113, review granted May 12, 2021, S267870.) We will accordingly address the issue raised by defendant in his supplemental brief.
Section 1170.91 states a person serving a sentence for a felony conviction who was in the military and suffers from mental health problems "as a result of his or her military service may petition for a recall of sentence." (§ 1170.91, subd. (b)(1).) If after a hearing the court finds the defendant qualifies, "the court may, in its discretion, resentence the person following a resentencing hearing." (§ 1170.91, subd. (b)(3), italics added.)" 'Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Williams (2013) 58 Cal.4th 197, 270-271.)
Even if defendant were eligible for resentencing, the trial court did not abuse its discretion in declining to mitigate defendant's sentence. The jury found defendant committed 10 counts of lewd acts against a minor under 14 years old and solicitation for murder of the victim. As detailed by the trial court in the original sentencing hearing, there was an "ongoing pattern of child molestation against the child who was groomed, who was taken advantage of" because defendant "had a position of trust."
The record and defendant's arguments do not exhibit anything worthy of mitigation in comparison. Defendant originally denied any wrongdoing, telling the probation officer the victim lied. Defendant now, in his declaration attached to his supplemental brief, blames any inappropriate behavior on the minor. The jury clearly disagreed. And defendant's only attempt at explaining how his mental health related to the crime such that it should mitigate his sentence is the unsupported and unavailing assertion it caused his "poor judgment regarding how and when to stop the inappropriate relationship" with the minor victim. This is insufficient to establish the trial court abused its discretion in denying resentencing from a conviction based on an extensive and prolonged sexual molestation against a minor and then trying to have her killed.
DISPOSITION
The judgment (order) is affirmed.
We concur: Blease, Acting P.J., Duarte, J.