People v. Jose CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD292101
- Trial judge
- Evan P. Kirvin
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Judith D. McConnell, William S. Dato
Analysis
The trial court denied probation, sentenced the defendant to seven years in state prison, and denied custody credits for time spent in residential treatment. The Court of Appeal affirmed the judgment after 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 probation“the trial court denied probation, reasoning that Jose was presumptively ineligible under section 1203, subdivision (e)(4) with at least eight prior felony convictions and no unusual circumstances supporting a sentence of probation.” | abuse of discretion | not reached | agree with court agree with court |
Denial of custody credits for time in residential treatment“The court did not award custody credits for Jose’s time in residential treatment as requested by the defense.” | de novo | not reached | agree with court agree with court |
Imposition of maximum restitution fine“The court imposed a restitution fine of $10,000, in addition to other assessments. Counsel did not object to the restitution fine or request an ability to pay hearing.” | abuse of discretion | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying arguable issues and the court to independently review the record when counsel finds no issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by the appellate court when appointed counsel files a no-merit brief.
- relied: People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456 — Defines the SCRAM monitoring system as a transdermal alcohol monitoring device.
The appellate opinion: sound — The opinion is a standard Wende/Anders review where the court independently examined the record and found no arguable issues. The reasoning is procedurally correct for this type of appeal, though it does not provide substantive legal analysis for the specific issues identified by counsel.
How this analysis was made · dispute it
unusual dispositionFollowing Jose's open guilty plea to numerous drug, identity-theft, and vehicle-theft charges with on-bail enhancements, the San Diego Superior Court denied probation under Penal Code section 1203, subdivision (e)(4), imposed a seven-year split sentence (three years custody, four years mandatory supervision), declined custody credits for voluntary residential treatment, and imposed a $10,000 restitution fine without objection. Appellate counsel filed a Wende brief, Jose 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 |
|---|---|---|---|
Denial of probation and home confinement; imposition of a seven-year split sentence“At sentencing, the trial court denied probation, reasoning that Jose was presumptively ineligible under section 1203, subdivision (e)(4) with at least eight prior felony convictions” | abuse of discretion | correct | agree with court Section 1203, subdivision (e)(4) makes a defendant with two or more prior felony convictions presumptively ineligible for probation absent unusual circumstances; with at least eight priors, a lengthy record, prior grants of probation, and many new offenses committed while on bail, the trial court's finding of no unusual circumstances is well within its discretion. The court chose middle terms and a sentence shorter in custody than the People requested, which further undercuts any abuse-of-discretion claim. The appellate court did not analyze this expressly, but a Wende opinion need not. |
Denial of custody credits for time spent in residential treatment“The court did not award custody credits for Jose’s time in residential treatment as requested by the defense.” | unclear | correct | agree with court Jose was released on bail with a SCRAM/GPS condition and then voluntarily entered a residential program; the opinion does not indicate the court ordered him into custodial treatment as a condition of release. Presentence credit under section 2900.5 attaches to custody attributable to the proceedings, and voluntary participation in a non-court-ordered program ordinarily does not qualify, so denial of credit appears correct on this record. The appellate court gave no analysis, so my view rests on the facts recited rather than the court's reasoning. |
Imposition of the $10,000 maximum restitution fine without an ability-to-pay hearing“The court imposed a restitution fine of $10,000, in addition to other assessments. Counsel did not object to the restitution fine or request an ability to pay hearing.” | abuse of discretion | correct | agree with court Section 1202.4 gives the court discretion to set a restitution fine between the statutory minimum and $10,000 considering the seriousness of the offenses and the defendant's record, and inability to pay is a factor only above the minimum that the defendant bears the burden to raise. Trial counsel did not object or request a hearing, so any challenge to the amount or to ability to pay is forfeited on appeal, and the extensive record of offenses supports the amount. No arguable issue exists. |
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 must so advise the court and identify anything in the record that might arguably support the appeal, and the court must then independently examine the record.
- relied: People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456 — Cited only for the description of the SCRAM transdermal alcohol monitoring system; not material to the result.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure, recites the facts and procedural history, identifies counsel's three potential issues, and states that independent review disclosed no arguable issue, which is all that Wende requires. It offers no analysis of the three identified issues, but each is unarguable on the facts recited (presumptive probation ineligibility with eight prior felonies, voluntary rather than court-ordered treatment, and an unobjected-to restitution fine), so the result is defensible though the reasoning is minimal.
Opinion
Filed 6/5/25 P. v. Jose 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, D083222
Plaintiff and Respondent, v. (Super. Ct. No. SCD292101)
ABIMBOLA KAYODE JOSE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed. Jo Pastore, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Abimbola Kayode Jose appeals from a judgment following his guilty plea to all charges and allegations. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not identified any arguable issues for reversal on appeal and asking the court to review the record for error as mandated by Wende. Counsel informed Jose of the opportunity to file a supplemental brief. We provided time for Jose to file his own brief, but he did not do so despite counsel’s notice of that opportunity. We independently review the record in this case consistent with our obligations under Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (Anders). Finding no arguable issues, we affirm the judgment. BACKGROUND Jose was charged with a variety of crimes arising out of three alleged incidents. First, on June 8, 2021, Jose broke into locked mailboxes. Police officers arrested Jose, who identified himself by another name. At the time of his arrest, he was in possession of a controlled substance and credit cards and identification cards bearing the names of other individuals. Second, on December 24, 2021, Jose attempted to steal a car from a rental car company. Police discovered in his possession a credit card skimmer, blank credit cards, identification cards and credit cards belonging to other individuals, and controlled substances. Jose identified himself to police using false names. Finally, on January 5, 2023, during a search of Jose’s residence, police found personal identifying information of other individuals and military identification cards with Jose’s photo and other individuals’ names. Jose was arrested on January 5, 2023. On April 20, 2023, he was released on bail with the requirement to “install scram or if bail bond company requires GPS.”1 He entered a residential rehabilitation facility, where he spent 50 days before graduating from the program.
1 “The ‘SCRAM’ monitoring system . . . monitors alcohol consumption transdermally and immediately sends a report to the court should defendant consume any alcohol.” (People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 459.) 2 On August 7, 2023, Jose pleaded guilty to the following charges arising out of the three incidents: possession for sale of a controlled substance (Health & Saf. Code, § 11351); two counts of false personation of another (Pen. Code,2 § 529, subd. (a)(2), (3)); two counts of unlawful acquisition and possession of personal identifying information of another with intent to defraud, with a prior such conviction (§ 530.5, subd. (c)(2)); mail theft (§ 530.5, subd. (e)); unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)); attempted grand theft of an automobile (§§ 487, subd. (d)(1), 664); attempted grand theft by false personation (§§ 530, 664); unlawful use of personal identifying information of another (§ 530.5, subd. (a)); possession and use of a card scanning device to obtain information (§ 502.6, subd. (a)); giving false identifying information to a peace officer upon lawful detention (§ 148.9, subd. (a)); the unlawful acquisition and possession of personal identifying information of ten or more individuals with the intent to defraud (§ 530.5, subd. (c)(3)); and unlawful access card equipment activity (§ 484i, subd. (c)). Jose further pleaded guilty to section 12022.1, subdivision (b) allegations attached to all but two counts. The plea agreement did not contain a stipulated sentence. Noting an extensive criminal history with probation previously granted and the many charges in this case, the People sought a sentence of seven years, with four years in custody and three years under mandatory supervision. Jose sought a sentence of 365 days of home detention with any additional punitive terms determined by the court. At sentencing, the trial court denied probation, reasoning that Jose was presumptively ineligible under section 1203, subdivision (e)(4) with at least eight prior felony convictions and no unusual circumstances supporting a 2 Undesignated statutory references are to the Penal Code. 3 sentence of probation. The court sentenced Jose to a total term of seven years,3 with three years served in custody and four years under mandatory supervision. The court did not award custody credits for Jose’s time in residential treatment as requested by the defense. The court imposed a restitution fine of $10,000, in addition to other assessments. Counsel did not object to the restitution fine or request an ability to pay hearing. Jose filed a notice of appeal and did not request a certificate of probable cause. DISCUSSION As noted, appellate counsel filed a Wende brief asking the court to independently review the record for error. To assist the court in its review of the record, and in compliance with Anders, supra, 386 U.S. 738, counsel has identified the following possible issues considered in evaluating the merits of this appeal: (1) Whether the court abused its discretion by declining to sentence Jose to probation or to home confinement; (2) Whether the trial court erred in denying Jose’s request for custody credits for his time in residential treatment; and 3 The seven year term was comprised of the following consecutive terms: three years (the middle term) for the principal count, Health and Safety Code section 11351; eight months (one third of the middle term) for each of sections 529, subdivision (a)(3), 10851, subdivision (a), and 530.5, subdivision (c)(3); and two years for a section 12022.1, subdivision (b) enhancement. The court stayed Jose’s two-year sentence for section 530.5, subdivision (c)(2) under section 654. Finally, Jose received concurrent one-year sentences (the middle term) for both sections 487, subdivision (d) and 530, and concurrent two-year sentences (the middle term) for each of sections 529, subdivision (a)(2), 530.5, subdivision (a), 530.5, subdivision (c)(2) (both counts), and section 484i, subdivision (c). 4 (3) Whether the trial court abused its discretion by ordering the maximum restitution fine. 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 Jose on this appeal. DISPOSITION The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
Cites, in this corpus
- People v. International Fidelity Insurance Co. D070060 · 2017-04-21
- People v. Wende Crim. 20851 · 1979-10-12