The People v. Pollard CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE324263
- Trial judge
- Charles W. Ervin
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court accepted defendant Pollard's guilty plea to attempted possession of a controlled substance, admitted a prior strike allegation, and sentenced him to the stipulated 16-month prison term. On appeal, appointed counsel filed a Wende/Anders brief identifying no arguable errors, and the Court of Appeal affirmed the judgment after its own review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of guilty plea and admission of prior strike allegation“The record shows Pollard was properly advised of his rights before he entered his guilty plea and admitted the strike prior allegation, there is a factual basis for his plea, and he received the sentence the parties agreed he would receive.” | de novo | correct | agree with court agree with court |
Imposition of stipulated 16-month sentence“The record shows Pollard was properly advised of his rights before he entered his guilty plea and admitted the strike prior allegation, there is a factual basis for his plea, and he received the sentence the parties agreed he would receive.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues while arguing none are arguable, subject to court review.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders framework by confirming that counsel identified potential issues and that the court conducted an independent review of the record. The court’s conclusion that the plea was voluntary, had a factual basis, and resulted in the agreed sentence is supported by the specific findings in the text.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Pollard's guilty plea to attempted possession of methamphetamine with an admitted strike prior, dismissed two prison-prior allegations on the prosecution's motion, and imposed the stipulated 16-month prison term with 37 days of custody credit and fees and fines. On appeal, appointed counsel filed a Wende brief, Pollard filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of guilty plea and strike admission after advisement of constitutional rights and consequences“The record shows Pollard was properly advised of his rights before he entered his guilty plea and admitted the strike prior allegation” | unclear | correct | agree with court The opinion recites that the court advised Pollard of his constitutional rights and the potential consequences of the plea and that he indicated he was freely and voluntarily waiving them; nothing in the opinion suggests a Boykin/Tahl defect. Under Wende the court's independent review found no arguable issue, and the recited record supports that conclusion. |
Finding of a factual basis for the plea“Pollard admitted as the factual basis for his guilty plea that he "unlawfully attempted to possess a controlled substance."” | unclear | correct | agree with court A defendant's stipulation or admission to the elements of the offense is a sufficient factual basis under Penal Code section 1192.5 for a negotiated plea, and the opinion reports such an admission. The appellate court's conclusion that a factual basis exists is supported by the record it describes. |
Imposition of the stipulated 16-month prison sentence, custody credits, and fines“there is a factual basis for his plea, and he received the sentence the parties agreed he would receive.” | unclear | correct | agree with court The plea bargain stipulated 16 months in state prison and the court imposed exactly that term, dismissing the prison priors as part of the bargain. The opinion does not itemize the fees and fines or the credit calculation, so no specific error can be identified from the opinion, and the court's Wende review found none. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists.
- 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.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure, identifies counsel's suggested issues, confirms the defendant was given the chance to file his own brief, and states the court's independent review disclosed no arguable issue, which satisfies the requirements for a Wende disposition. The result is defensible on the record described, although the opinion is brief and does not detail the credit calculation or specific fines.
Opinion
Filed 9/27/13 P. v. Pollard 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, D063092
Plaintiff and Respondent, v. (Super. Ct. No. SCE324263)
JOE BRANDON POLLARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles W.
Ervin, Judge. Affirmed.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
On October 16, 2012, after the court advised him of his constitutional rights and the potential consequences of his plea, defendant Joe Brandon Pollard indicated he was freely and voluntarily giving up those rights and pleaded guilty to one count of attempted possession of a controlled substance (methamphetamine) (Health and Saf. Code, § 11377, subd. (a) & Pen. Code, § 664) as a lesser included offense of count 1 of the felony complaint. Pollard admitted an allegation that he had suffered one strike prior (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12 & 668). The plea bargain stipulated a sentence of 16 months in state prison.
The court granted the prosecution's motion to dismiss allegations Pollard had suffered two prison priors (Pen. Code, § 667.5, subd. (b)), and immediately sentenced him to the stipulated 16-month prison term. The court granted Pollard a total of 37 days of presentence custody credit and imposed various fees and fines, including a restitution fine and a suspended parole revocation fine.
In his notice of appeal, Pollard indicated his appeal is "based on the sentence or other matters that occurred after the plea and do not affect its validity."
FACTUAL BACKGROUND
For purposes of the change of plea hearing, Pollard admitted as the factual basis for his guilty plea that he "unlawfully attempted to possess a controlled substance."
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below.
Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U. S. 738, counsel refers to the following as possible, but not arguable, issues: (1) Was Pollard "properly advised of his rights prior to entering the plea 2 bargain?"; (2) "[i]s there a factual basis for his plea?"; and (3) "[d]id [he] receive the agreed sentence?"
We granted Pollard permission to file a brief on his own behalf. 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, including the possible issues raised by appellate counsel, has disclosed no reasonably arguable appellate issue. The record shows Pollard was properly advised of his rights before he entered his guilty plea and admitted the strike prior allegation, there is a factual basis for his plea, and he received the sentence the parties agreed he would receive. We conclude Pollard has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12