Metropolitan News-Enterprise


Wednesday, October 21, 2020


Page 1


Court of Appeal Takes Unusual Course of Issuing Apology

Bedsworth Says Counsel Should Not Have Been Asked for Further Briefing on Dead Issue


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal yesterday did something courts seldom do: It issued an apology to counsel for having wasted their time.

Acting Presiding Justice William W. Bedsworth wrote the opinion, which was not certified for publication.

The appellant is Bernard Raymond Pearle-Van Pelz, an inmate at Richard J. Donovan Correctional Facility in San Diego. He was convicted in 1999 of conspiracy to commit murder and solicitation to commit murder.

Van Pelz on Aug. 28, 2019 appealed from the denial by Orange Superior Court Judge Kimberly Meninger of his petition pursuant to Penal Code §1170.95. That provision authorizes resentencing, in some instances, of a person convicted of murder under the felony murder rule or the natural and probable consequences doctrine.

His appointed counsel on appeal, James M. Crawford of Orange County’s City of Orange, on Dec. 9, 2019, filed a Wende brief—pursuant to the California Supreme Court’s 1979 decision in People v. Wende—declaring that he was unable to discern any arguable issues.

Further Briefing Invited

The case was taken under submission by Div. Three on Jan. 31. However, an order was filed on April 24 vacating the submission and inviting briefing on “the issue of whether there was sufficient evidence of a charged overt act to prove the conspiracy charge against appellant.”

Crawford and the Office of Attorney General provided briefs and the case was again taken under submission on July 29. Yesterday, the appeal was dismissed, with Bedsworth explaining:

“We now realize further briefing was unnecessary and futile and apologize to both sides for requesting it. The fact appellant had previously appealed his conviction and had it affirmed eluded us.

“Res judicata bars reconsideration of the matters raised in that appeal decades later. The doctrine of res judicata applies to criminal cases.”

Counsel’s Contention

Bedsworth said Crawford “to his credit, gamely argues our affirmance of appellant’s conspiracy conviction did not reach issues that should have been argued” and that res judicata should therefore not be applied. But, the jurist pointed, the doctrine applies not only to issues that were litigated in a prior proceeding, but those that could have been.

Adequacy of the evidence in support of the conspiracy count could have been argued in the appeal from the conviction, he noted.

“The unfortunate fact of the matter is that the author simply did not see the prior opinion in this matter and caused the court to issue an improvident order,” Bedsworth wrote. “That mistake must now be remedied by dismissal of the present appeal.”

He remarked that the facts set forth in the original opinion “leave little doubt the argument now advanced by appellant about overt acts would have been bootless even if we could consider it,”

The case is People v. Pearle-Van Pelz, G058244.

On Sept. 17, 2009, the Ninth U.S. Circuit Court of Appeals, in a memorandum opinion, rejected Van Pelz’s contention that his right to due process was violated by the jury instructions in his case, impermissibly allowing a conviction for conspiracy based on overt acts on his part after the point in time where his co-conspirator had become a government informer.

In a Feb. 13, 2003 state Court of Appeal opinion, which Bedsworth authored, Van Pelz’s conviction for arson—which weas unrelated to the murder conviction—was reversed owing to juror misconduct.


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