P. v. Brown CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD239027
- Trial judge
- Leo Valentine, Jr.
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- McINTYRE (author), Judith L. Haller, O'Rourke
Analysis
The trial court denied the defendant's motion to withdraw her guilty plea and imposed a sentence of probation with a 332-day county jail term. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to withdraw guilty plea“The court eventually indicated that Brown's motion to withdraw her plea lacked merit.” | unclear | not reached | agree with court agree with court |
Imposition of sentence (probation and 332 days in custody)“The trial court ordered imposition of sentence suspended, and granted Brown probation for three years. It ordered her to serve 332 days in custody with credit for 192 days” | unclear | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appellate counsel when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying potential issues even if they are not arguable.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for appointed counsel who finds no arguable issues. It accurately reflects that the court conducted the required independent review of the record.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Brown's guilty plea to burglary, filing false instruments and rent skimming, found her motion to withdraw the plea lacked merit, kept appointed counsel as attorney of record at sentencing, and granted three years' probation with 332 days in custody. On appeal, appointed counsel filed a Wende brief; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Brown's motion to withdraw or set aside her guilty plea“The court eventually indicated that Brown's motion to withdraw her plea lacked merit.” | abuse of discretion | correct | unsure The appellate court conducted a Wende review and found nothing arguable, but gave no reasoning specific to this ruling. The opinion also notes the trial court denied a certificate of probable cause, which under Penal Code section 1237.5 would ordinarily bar review of plea-validity issues such as this one; the court did not address that threshold point, though it does not affect the affirmance. Without the record I cannot verify the merits, so I defer to the independent review. |
Advisement and waiver of constitutional rights before the guilty plea, and validity of the plea against an ineffective-assistance claim“whether (1) Brown was properly advised of her constitutional rights and whether she waived them before pleading guilty” | unclear | correct | unsure These are plea-validity issues flagged by counsel under Anders. The court found no arguable issue after independent review. Because the certificate of probable cause was denied, these issues likely were not cognizable in any event, which the opinion does not say but which supports the result. |
Refusal to relieve appointed counsel / treating appointed counsel as counsel of record at sentencing, and handling of Brown's apparent request to represent herself“the court explained that he had never been substituted into the case and that her appointed counsel remained counsel of record” | unclear | correct | unsure The opinion states retained counsel had never substituted in and that the court heard from Brown and appointed counsel about continued representation before proceeding. That procedure appears regular on the face of the opinion, and the court found no arguable Faretta or substitution error, but the opinion gives no details of any self-representation request or its timing. |
Independent Wende review of the entire record for arguable issues“Our review of the record pursuant to Wende, including the possible issues listed by counsel pursuant to Anders, has disclosed no reasonably arguable issues on appeal.” | de novo | correct | agree with court The court followed the required Wende/Anders procedure: counsel filed a brief identifying possible issues, Brown was given leave to file a supplemental brief and did not, and the court independently reviewed the record. The disposition is the standard one for a no-issue Wende appeal. |
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 error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Mendez (1999) 19 Cal.4th 1084 — Absent a certificate of probable cause under Penal Code section 1237.5, a defendant may not raise on appeal issues going to the validity of a guilty plea; the opinion notes the certificate was denied but does not address the effect on the plea-related issues counsel listed.
The appellate opinion: sound with gaps — The court properly followed Wende and Anders, gave Brown a chance to file her own brief, and reached the standard disposition after independent review. It did not address the denial of the certificate of probable cause, which would have disposed of the plea-validity issues on cognizability grounds, and it gave no reasoning on the listed issues, leaving the reader unable to evaluate the merits.
How this analysis was made · dispute it
record incompleteOpinion
Filed 8/9/13 P. v. Brown 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, D062802
Plaintiff and Respondent, v. (Super. Ct. No. SCD239027)
DIANNE RENEE BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Dianne Renee Brown was charged with numerous offenses based on a scheme in which she recorded quit claim and grant deeds on 31 properties. She then removed realtor signs and lockboxes, rekeyed the locks and rented some of the properties through a fictitious business. She pleaded guilty to one count of burglary, three counts of filing a false instrument and one count of rent skimming.
The plea agreement provided that the balance of the charges would be dismissed, Brown would receive probation with credit for time served on or after August 27, 2012, she would receive an additional 70 days in custody at that time, and the total sentence "was to be determined." She also agreed to several special probation conditions.
At the August 27, 2012 hearing, the trial court continued the matter to allow Brown time to determine whether she would be retaining new counsel and filing a motion to withdraw her plea. (All further date references are to 2012.) On September 20, the court received Brown's motion to withdraw or set aside her plea.
At the subsequent sentencing hearing, retained counsel appeared for Brown. When Brown indicated that she wanted to relieve her retained counsel, the court explained that he had never been substituted into the case and that her appointed counsel remained counsel of record. The court heard from Brown and her appointed counsel, including whether appointed counsel could continue to represent Brown.
The court eventually indicated that Brown's motion to withdraw her plea lacked merit. After additional discourse with Brown and her appointed counsel, appointed counsel announced he was ready for the court to proceed with sentencing.
The trial court ordered imposition of sentence suspended, and granted Brown probation for three years. It ordered her to serve 332 days in custody with credit for 2 192 days, and imposed various fines and fees. The court later ordered Brown to report to work furlough. Brown timely appealed and filed a certificate of probable cause. The court denied Brown's request for a certificate of probable cause.
Appellate counsel then filed an amended notice of appeal.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Under Anders v. California (1967) 386 U.S. 738 (Anders), she listed as possible but not arguable issues, whether (1) Brown was properly advised of her constitutional rights and whether she waived them before pleading guilty, (2) the court abused its discretion when it denied Brown's motion to withdraw her plea, (3) the guilty plea is invalid due to ineffective assistance of counsel, (4) the court improperly denied Brown's request to represent herself at sentencing, and (5) the court erred in making Brown's appointed counsel remain attorney of record at sentencing. We granted Brown permission to file a brief on her own behalf. She has not responded.
Our review of the record pursuant to Wende, including the possible issues listed by counsel pursuant to Anders, has disclosed no reasonably arguable issues on appeal. Competent counsel has represented Brown on this appeal.
3 DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12