Filed 6/25/14 P. v. Guereque CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                          G049316

         v.                                                             (Super. Ct. No. 06CF3427)

JOSEPH BRIAN GUEREQUE                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed.
                   Allison L. Ehlert, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                                      *      *      *
              In 2007, appellant Joseph Brian Guereque was convicted of attempted
robbery and assault with a deadly weapon. He also admitted to his conviction for a prior
serious felony offense (robbery) he had committed in 2002. He was sentenced to
imprisonment for a term of 11 years. In December 2012, he filed in superior court a
petition to recall his sentence on the basis that subsequent amendment of Penal Code
section 4019 required a new and lesser sentence for his crimes.1 The petition was denied
and he appealed.
              We appointed counsel to represent him on that appeal. Counsel filed a brief
which set forth the procedural facts of the case (the facts of the crimes themselves are
irrelevant because the argument is solely directed at the appropriate term of punishment).
Counsel did not argue against her client, but advised us she could find no issues to argue
on appellant’s behalf. Guereque was invited to express his own objections to the
proceedings against him, but did not. Under the law, this put the onus on us to review the
record and see if we could find any issues that might result in some kind of amelioration
of Guereque’s lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized
that our search was not for issues upon which Guereque would prevail, but only issues
upon which he might possibly prevail.
              We have examined the record and found no arguable issue. This is not
surprising. In fact, it is what we find in the vast majority of cases in which appellate
counsel files a Wende brief. Even the most cynical observer of the appellate system
would have to recognize that appellate counsel has a financial incentive for finding
issues. The simple matter is counsel makes more money if he/she finds an issue that is
arguable than if he/she does not. So while it sometimes happens that an appellate court
will find issues after appellate counsel has thrown in the towel, it is unusual.
              This case is not unusual – at least not in any way that would benefit
Guereque. In fact, the procedural posture of the case limits us to one issue – the one he




       1      All further statutory references are to the Penal Code.


                                                      2
raised in his petition: Does the recently amended section 4019 apply to his case? It does
not.
              As appellant’s motion correctly asserted, section 4019 was amended in
2009 to provide greater preconviction custody and conduct credits for persons
incarcerated for the crimes he committed. But his motion failed because the amendment
is explicitly limited to cases not yet final on the date of its enactment, January 25, 2010.
Appellant’s date of conviction was July 16, 2007; his conviction had been final for years
before the effective date of the amendment to section 4019.
              Indeed, it is possible Guereque is not even entitled to this appeal. (See
People v. Serrano (2012) 211 Cal.App.4th 496 [no right to Wende review for
postconviction motion]. But, considering the clarity of the law on the point and the
limited nature of the necessary review, we have chosen to consider the matter in an
abundance of caution.
              No relief is available to Guereque under the section, and appellate counsel
could do nothing but request independent review by this court under Wende. Having
conducted that review, we now affirm the judgment.
              The judgment is affirmed.




                                                  BEDSWORTH, J.
WE CONCUR:




RYLAARSDAM, ACTING P. J.




IKOLA, J.



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