People v. Smith CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE412383
- Trial judge
- Sherry M. Thompson-Taylor
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Julia C. Kelety (author), William S. Dato, Buchanan
Analysis
The trial court convicted Smith of carrying a concealed dirk or dagger, denied his motion to reduce the offense to a misdemeanor, but granted motions to strike the prior conviction and fines/fees. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to reduce offense to misdemeanor“At sentencing, the court denied Smith’s motion to reduce the offense to a misdemeanor” | unclear | not reached | unsure The opinion does not explicitly state the standard of review applied to this specific ruling, nor does it provide a detailed analysis of the trial court's discretion in denying the reduction, relying instead on the general Wende review finding no arguable issues. |
Grant of motion to strike strike prior“granted the defense motions to strike the strike prior pursuant to People v. Romero (1996) 13 Cal.4th 497” | unclear | not reached | unsure The appellate court did not specifically analyze the trial court's application of People v. Romero, as the Wende review found no arguable issues for reversal regarding the sentencing or the prior strike. |
Grant of motion to strike fines and fees“to strike fines and fees pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157” | unclear | not reached | unsure The appellate court did not specifically analyze the trial court's application of People v. Duenas, as the Wende review found no arguable issues for reversal regarding the sentencing or the fines and fees. |
Authorities
- relied: People v. Romero (1996) 13 Cal.4th 497 — Establishes the standard for striking a prior conviction under the Three Strikes law.
- relied: People v. Duenas (2019) 30 Cal.App.5th 1157 — Requires courts to ensure fines and fees are imposed only if the defendant has the ability to pay.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by the appellate court when appointed counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying potentially meritorious issues and the court to conduct an independent review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing a case where appointed counsel finds no meritorious issues. However, it is a 'sound with gaps' opinion because it provides no substantive legal analysis for the specific issues identified by counsel (Second Amendment and probation condition), merely stating that no arguable issues were found after review.
How this analysis was made · dispute it
unusual dispositionThe trial court entered judgment on a jury verdict convicting Smith of carrying a concealed dirk or dagger (Pen. Code, § 21310), denied his motion to reduce the offense to a misdemeanor, struck the strike prior under Romero and fines under Duenas, and sentenced him to 365 days in custody plus two years' probation with conditions. On appeal, counsel filed a Wende brief identifying a Second Amendment challenge to section 21310 and an overbreadth challenge to probation condition 14c as possible issues; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Smith's motion to dismiss the section 21310 charge as violating the Second Amendment (identified by counsel as a possible issue under Anders)“whether the trial court improperly denied appellant’s motion to dismiss the section 21310 charge on the basis that it violated his Second Amendment right to bear arms” | unclear | correct | unsure The opinion does not discuss the merits; it simply states that after independent Wende/Anders review no arguable issue exists. Published California authority has upheld section 21310 against Second Amendment challenges, and the concealed carry of a fixed-blade knife falls outside the core of the right as construed in California cases, so the conclusion that the issue is not arguable is plausible, but the opinion gives no reasoning to evaluate. |
Imposition of probation condition 14c (not remaining in the presence of a person known to illegally possess a firearm, deadly weapon, or ammunition), identified as possibly unconstitutionally overbroad“whether probation condition 14c (“[d]o not remain in the presence of any person who you know illegally possesses a firearm, deadly weapon, or ammunition”) is unconstitutionally overbroad.” | unclear | correct | unsure The condition as quoted contains a knowledge requirement and is limited to persons who illegally possess weapons, which addresses the usual overbreadth and vagueness objections, so the court's implicit conclusion that the challenge is not arguable appears defensible; but the opinion offers no analysis, leaving the point unverifiable from the text. |
Judgment of conviction and sentence as a whole, reviewed under Wende/Anders for any arguable error“We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.” | unclear | correct | agree with court The court followed the Wende procedure: counsel filed a no-issues brief, advised Smith of his right to file a supplemental brief, none was filed, and the court independently reviewed the record and affirmed. The opinion recites the facts, procedural history, offense, and sentence, satisfying the Kelly requirements for a Wende opinion. Nothing in the opinion suggests procedural error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Trial courts have discretion under Penal Code section 1385 to strike prior strike allegations in furtherance of justice; the trial court exercised that discretion in Smith's favor.
- relied: People v. Dueñas (2019) 30 Cal.App.5th 1157 — Due process may require an ability-to-pay determination before imposing fines, fees, and assessments; the trial court struck fines and fees on this basis.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure, confirms counsel advised the defendant of his rights, conducts independent record review, and provides the brief factual and procedural description required for such opinions. It does not explain why the two issues counsel flagged are not arguable, which is permissible in a Wende affirmance but leaves the merits unexamined on the face of the opinion.
Opinion
Filed 7/18/24 P. v. Smith CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083294
Plaintiff and Respondent, v. (Super. Ct. No. SCE412383) JIMMY DARIL SMITH, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Sherry M. Thompson-Taylor, Judge. Affirmed. Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In May 2022, an El Cajon police officer stopped Jimmy Daril Smith while riding a bicycle because he did not have a rear red reflector on his bicycle. When questioned by the officer, Smith admitted that he had a knife in his pocket and, after being handcuffed, the officer located an unsheathed four-inch fixed blade knife in Smith’s pocket. Smith was charged with carrying a concealed dirk or dagger (Pen. Code, § 21310). The complaint alleged a strike prior. In 2023, Smith pled guilty to the charge and admitted the strike prior. Thereafter, the court granted Smith’s motion to withdraw his guilty plea. At trial, the jury convicted him of the charged offense, and Smith admitted the strike prior. At sentencing, the court denied Smith’s motion to reduce the offense to a misdemeanor, but granted the defense motions to strike the strike prior pursuant to People v. Romero (1996) 13 Cal.4th 497, and to strike fines and fees pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157. The court sentenced Smith to 365 days in custody, and two years’ probation with a condition, inter alia, that he participate in a cognitive behavioral counseling program. Smith filed a timely notice of appeal. Smith’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating that counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asked the court to review the record for error as mandated by Wende. Counsel also filed a declaration stating that counsel provided Smith with a copy of the Wende brief and advised Smith of the Wende procedures and of his right to file a supplemental brief and to move to relieve counsel. No supplemental brief has been received. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of Smith’s appeal: whether the trial court improperly denied appellant’s motion to dismiss the section 21310 charge on the basis that it violated his Second 2 Amendment right to bear arms; and whether probation condition 14c (“[d]o not remain in the presence of any person who you know illegally possesses a firearm, deadly weapon, or ammunition”) is unconstitutionally overbroad. DISCUSSION We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Smith on this appeal. We therefore affirm. DISPOSITION The judgment is affirmed.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.
Cites, in this corpus
- People v. Superior Court (Romero) S045097 · 1996-06-20
- People v. Wende Crim. 20851 · 1979-10-12