P. v. Como CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD183138, SCD198455
- Trial judges
- Michael T. Smyth; David M. Szumowski
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Judith L. Haller, McINTYRE
Analysis
The trial court reinstated criminal proceedings after vacating a suspended commitment to the California Rehabilitation Center and resentenced the defendant to the same prison terms previously imposed. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the judgment following the reinstatement of criminal proceedings and resentencing.“A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues.” | de novo | not reached | agree with court The court conducted an independent review of the record as required by People v. Wende because appointed counsel filed a no-merit brief. The court found no reasonably arguable issues and affirmed the judgment. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying any arguable issues or, if none exist, to request the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying any arguable issues and requesting independent review by the court.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to a no-merit brief. It accurately states that the court performed an independent review and found no issues, which is the required standard in such cases.
How this analysis was made · dispute it
unusual dispositionAfter vacating Como's California Rehabilitation Center commitment and reinstating criminal proceedings, the trial court resentenced him to the same six-year prison term (three-year lower term for furnishing cocaine base plus a three-year Health and Safety Code section 11370.2 enhancement, with a concurrent two-year term for a prior concealed-weapon conviction) and awarded custody credits in both cases. On appeal, appointed counsel filed a Wende brief identifying no issues, Como filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Reinstatement of criminal proceedings and imposition of the original 2006 sentence (six years in Case A, concurrent two years in Case B) after vacating the CRC commitment“On August 20, the court sentenced Como in Cases A and B to the same terms it imposed in 2006.” | unclear | correct | agree with court The appellate court conducted an independent Wende/Anders review of the record and found no reasonably arguable issue. Nothing in the recited procedural history suggests error: the sentence imposed on reinstatement matched the previously imposed and suspended sentence, the lower term was selected, and only one of the section 11370.2 enhancements was imposed. On this record there is no identifiable legal error. |
Award of presentence custody and conduct credits (1,891 total days in Case A; 1,977 total days in Case B)“In Case A, it awarded him 1,619 days of actual custody credits and 272 days of conduct credits, for a total of 1,891 custody credits.” | unclear | correct | unsure The opinion recites the credit figures but does not explain their computation, and the court's Wende review implicitly found them unobjectionable. The relatively low ratio of conduct to actual credits is consistent with CRC time being counted as actual custody without full conduct credits, but the opinion does not provide the underlying dates needed to verify the arithmetic, so the correctness of the award cannot be independently confirmed from the opinion alone. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Constitutional framework requiring appellate courts to examine the record when appointed counsel finds no meritorious issues, to protect the indigent defendant's right to counsel on appeal.
The appellate opinion: sound — The court followed the required Wende/Anders procedure: it summarized the facts and procedural history, offered the defendant an opportunity to file a supplemental brief, independently reviewed the record, and found no arguable issues. The opinion is necessarily brief and does not discuss the credit calculations in detail, but that is consistent with Wende practice where no issue is identified.
Opinion
Filed 8/7/13 P. v. Como 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, D062702
Plaintiff and Respondent, v. (Super. Ct. Nos. SCD183138, SCD198455) JEFFREY COMO, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Szumowski and Michael T. Smyth, Judges. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. Jeffrey J. Como appeals a judgment following his convictions of selling or furnishing a controlled substance, namely cocaine base (Health & Saf. Code, § 11352, subd. (a)),1 and carrying a concealed weapon (former Pen. Code, § 12020, subd. (a)).
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, Como was convicted of one count of carrying a concealed weapon (former Pen. Code, § 12020, subd. (a)) in San Diego County Superior Court Case No. SCD183138 (Case B). The trial court granted him probation for three years.
In 2006, Como handed cocaine base to codefendant Jimmy who, in turn, sold it to an undercover police officer. In San Diego County Superior Court Case No. SCD198455 (Case A), a complaint charged Como with selling or furnishing a controlled substance, namely cocaine base (§ 11352, subd. (a)), and also alleged he: (1) sold it within the meaning of Penal Code section 1203.073, subdivision (b)(7); (2) had various Health and Safety Code convictions within the meanings of sections 11370.2, subdivision (a), 11370, subdivision (a), and Penal Code section 1203.07, subdivision (a)(11); and (3) had two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Como's probation in Case B was revoked.
Following trial in Case A, the jury found Como guilty of the charged offense and found true the allegation he sold cocaine base within the meaning of Penal Code section 1 All statutory references are to the Health and Safety Code unless otherwise specified.
2 1203.073, subdivision (b)(7). Como admitted the truth of the other allegations in the complaint.
At his December 19, 2006, sentencing, the trial court sentenced Como to the lower term of three years for his Case A conviction and imposed a consecutive three-year enhancement for one of the section 11370.2, subdivision (a), allegations, for a total term of six years in prison. The court sentenced Como to a concurrent two-year term for his Case B conviction. The court then suspended proceedings under Welfare and Institutions Code section 3151 and referred Como for treatment at the California Rehabilitation Center (CRC).
On April 30, 2012, the trial court vacated Como's CRC commitment. On August 13, the court reinstated criminal proceedings in Cases A and B. On August 20, the court sentenced Como in Cases A and B to the same terms it imposed in 2006. In Case A, it awarded him 1,619 days of actual custody credits and 272 days of conduct credits, for a total of 1,891 custody credits. In Case B, it awarded him 1,712 days of actual custody credits and 265 days of conduct credits, for a total of 1,977 custody credits. Como timely filed a notice of appeal challenging the judgments in Case A and Case B.
DISCUSSION
Como's appointed counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal of the judgment, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel has not identified any possible issues for our review.
3 We granted Como permission to file a supplemental brief on his own behalf, but he has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Como has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12