People v. Green CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE424355
- Trial judge
- Anthony J. Campagna
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Buchanan, Michele M. Castillo
Analysis
The trial court convicted the defendant of robbery and possession of tear gas by a felon and sentenced him to three years in prison. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Failure to instruct jury on battery as a lesser included offense of robbery“whether the trial court erred by failing to instruct the jury on battery as a lesser included offense of robbery” | unclear | not reached | unsure The opinion notes that counsel identified this issue for consideration, but the court provides no analysis, reasoning, or conclusion regarding the merits of this claim, stating only that it found no error requiring reversal. |
Sentencing to the middle term on the robbery conviction“whether the court abused its discretion in sentencing Green to the middle term on the robbery conviction given his trauma and abuse” | abuse of discretion | not reached | unsure The opinion notes that counsel identified this issue for consideration, but the court provides no analysis, reasoning, or conclusion regarding the merits of this claim, stating only that it found no error requiring reversal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court must conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel who determines an appeal has no merit must file a brief referring to anything in the record that might arguably support the appeal and the defendant must be given time to raise any points.
- relied: People v. Kelly (2006) 40 Cal.4th 106 — Anders and Wende recognize the defendant’s right in a Wende appeal to file supplemental contentions.
The appellate opinion: sound with gaps — The opinion is procedurally sound in establishing the Wende/Anders framework and confirming the defendant's right to file a supplemental brief. However, it is substantively deficient because it fails to provide any reasoning or analysis for the two specific issues identified by counsel, merely stating that no error was found.
A San Diego County jury convicted Green of robbery (Pen. Code, § 211) and possession of tear gas by a felon (§ 22810, subd. (a)), the trial court found a prior-prison-term aggravating circumstance true in a bench trial after jury waiver, and sentenced him to the middle term of three years for robbery with a concurrent 281-day term. On appeal, appointed counsel filed a Wende brief identifying two possible issues, Green filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable error, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Failure to instruct the jury sua sponte on battery as a lesser included offense of robbery“(1) whether the trial court erred by failing to instruct the jury on battery as a lesser included offense of robbery” | unclear | correct | agree with court Under the statutory elements test, battery is not a lesser included offense of robbery because robbery may be accomplished by fear alone without any touching, and the accusatory pleading here charged simple robbery under section 211; the Supreme Court has held on parallel reasoning that assault is not a lesser included offense of robbery. The pepper-spray use against the loss-prevention employee during asportation supports the force element of an Estes-type robbery but does not make battery a necessarily included offense, so no sua sponte duty arose. |
Imposition of the middle term (three years) on the robbery count notwithstanding mitigating evidence of trauma and abuse“(2) whether the court abused its discretion in sentencing Green to the middle term on the robbery conviction given his trauma and abuse” | abuse of discretion | correct | agree with court The middle term is the presumptive term under Penal Code section 1170, subdivision (b), and the court had before it an aggravating circumstance (prior prison term, rule 4.421(b)(3)) found true beyond a reasonable doubt after a valid jury waiver, which satisfies the procedural requirements for considering aggravation. Choosing the middle rather than the lower term despite evidence of trauma falls within the trial court's broad sentencing discretion, and nothing quoted in the opinion suggests the court relied on improper factors or misunderstood its discretion. |
Overall judgment of conviction and sentence, reviewed independently under Wende for any arguable issue“We have reviewed the entire record, as required by Wende, supra, 25 Cal.3d 436, considered the issues identified by counsel, and determined there are no grounds for reversal or modification of the judgment.” | unclear | correct | agree with court The court followed the required Wende/Anders procedure: counsel filed a no-issue brief identifying arguable points, the defendant was advised of and declined to exercise his right to file a supplemental brief, and the court states it reviewed the entire record. The facts recited (taking of merchandise, use of pepper spray on a security employee who ordered him to stop, two cans of pepper spray and the merchandise recovered, status as a felon) comfortably support both convictions, and the sentence is within statutory limits. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no specific issues, the Court of Appeal must independently review the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel who concludes an appeal lacks merit must file a brief referring to anything in the record that might arguably support the appeal, and the defendant must be given an opportunity to raise his own points.
- relied: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal the defendant has the right to file supplemental contentions, and the appellate opinion should describe the facts, the procedural history, the issues counsel identified, and the court's conclusion.
The appellate opinion: sound — The opinion follows the Wende/Anders/Kelly procedure exactly, describes the facts and procedure, identifies counsel's potential issues, confirms the defendant declined to file a supplemental brief, and affirms after independent review; the two flagged issues plainly lack merit because battery is not a lesser included offense of robbery and the middle term is the presumptive term under section 1170(b). Consistent with Kelly, the court was not required to explain why each identified issue failed, so the brevity is not a gap.
Opinion
Filed 1/26/26 P. v. Green 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, D085367
Plaintiff and Respondent, v. (Super. Ct. No. SCE424355)
CHRISTOPHER DAVID GREEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Anthony J. Campagna, Judge. Affirmed. Annie Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Christopher David Green appeals the judgment sentencing him to prison for three years after a jury found him guilty of robbery and possession of tear gas by a felon. His appointed counsel filed a brief in which she raised no claims of error and invited us to review the record independently for error. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) We have done so and found no error requiring reversal or modification of the judgment. We therefore affirm. BACKGROUND Green went to a Target store, grabbed a basket, and proceeded quickly to the electronics department. He put four calculators and four hard drives in the basket and continued to walk through the store. When Green arrived in another department, he pulled a reusable Target bag out of a pocket of his hoodie and transferred the calculators and hard drives from the basket to the bag. He then proceeded to the exit without paying for the items. A Target employee who had been monitoring Green’s actions via surveillance cameras waited for him at the exit, identified himself as “Target security,” and ordered Green to stop. Green sprayed the employee with pepper spray, ran to his vehicle, and drove off. Nearby police officers received a report of the incident and stopped Green. They found a can of pepper spray in his hoodie and another can, the calculators, and the hard drives in the vehicle. The People charged Green with robbery (Pen. Code, § 211) and possession of tear gas by a felon (id., § 22810, subd. (a)). As an aggravating sentencing circumstance, they alleged he had served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).) A jury found Green guilty on both counts. He waived his right to a jury trial on the alleged aggravating sentencing circumstance, and in a separate bench trial the court found the allegation true. The court sentenced Green to prison for three years on the robbery conviction (Pen. Code, § 213, subd. (a)(2)) and for a concurrent term of 281 days on the other conviction (id., § 22810, subd. (g)(1)). DISCUSSION Green’s appointed counsel filed a brief in which she summarized the proceedings, raised no claims of error, and asked us to review the record 2 independently for error. (See Wende, supra, 25 Cal.3d at p. 441 [appellate court must “conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues”].) To assist our review, counsel identified the following two issues she had considered: (1) whether the trial court erred by failing to instruct the jury on battery as a lesser included offense of robbery; and (2) whether the court abused its discretion in sentencing Green to the middle term on the robbery conviction given his trauma and abuse. (See Anders v. California (1967) 386 U.S. 738, 744 [counsel who determines an appeal has no merit must file a “brief referring to anything in the record that might arguably support the appeal”].) Appointed counsel and this court advised Green that he could file a supplemental brief. (See Anders, supra, 386 U.S. at p. 744 [when counsel raises no claims of error, defendant must be given time “to raise any points that he chooses”]; People v. Kelly (2006) 40 Cal.4th 106, 120 [Anders and Wende “recognize the defendant’s right in a Wende appeal to file supplemental contentions”].) He has not done so. We have reviewed the entire record, as required by Wende, supra, 25 Cal.3d 436, considered the issues identified by counsel, and determined there are no grounds for reversal or modification of the judgment. We also have determined Green received competent representation on appeal.
3 DISPOSITION The judgment is affirmed.
IRION, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
Cites, in this corpus
- People v. Kelly S133114 · 2006-11-27
- People v. Wende Crim. 20851 · 1979-10-12