People v. Conway CA4/1

California Court of Appeal · D085409 · 2026-02-10 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE425196
Trial judge: Patricia K. Cookson
Outcome: affirmed — Affirmed.
Area: criminal
Panel: O'Rourke (author), William S. Dato, Julia C. Kelety

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T03:31Z · confidence high

The trial court convicted the defendant of attempted criminal threats and brandishing a weapon, placing him on probation. 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
Judgment of conviction and sentence for attempted criminal threats and brandishing a weapon “We have reviewed the entire record as required by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not discovered any arguable issues for reversal on appeal.”	de novo	correct	agree with court The court applied the standard Wende/Anders review, examining the entire record for any arguable issues of error. The court found none, specifically addressing potential issues regarding sufficiency of evidence, identification, evidentiary rulings, and ineffective assistance of counsel, and concluded the judgment should be affirmed.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to review the record for arguable issues when no issues are identified, and the court's independent duty to review the record.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying arguable issues and the court to independently review the record to ensure the defendant's rights are protected.

The appellate opinion: sound — The opinion is procedurally sound as it follows the established Wende/Anders protocol for cases where appointed counsel identifies no arguable issues. The court explicitly states it reviewed the entire record and considered the specific potential issues raised by counsel, providing a defensible basis for affirming the judgment.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:29Z · confidence low

After a jury convicted Kenneth Conway of attempted criminal threats with a personal deadly-weapon-use allegation and misdemeanor brandishing, the trial court placed him on two years' formal probation with a stayed 365-day custody term and concurrent summary probation. On appeal, appointed counsel filed a Wende brief identifying four possible issues, Conway 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
Judgment of conviction and probationary sentence (reviewed under Wende/Anders independent review of the entire record) “We have reviewed the entire record as required by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not discovered any arguable issues for reversal on appeal.”	unclear	correct	agree with court The court followed the required Wende procedure: counsel filed a no-issues brief listing Anders issues, the defendant was invited to file his own brief and did not, and the court states it reviewed the entire record. Nothing in the opinion's factual recitation suggests an arguable issue was overlooked, and no further analysis is required in a Wende affirmance.
Sufficiency of the evidence for attempted criminal threats and for identification of Conway as the perpetrator (Anders issues 1 and 2) “Even though he felt the man was threatening his life and he was concerned the man could hurt him, Benjamin S. said he was not personally afraid given his life experiences.”	unclear	correct	agree with court The facts recited—threats to shoot and to drag the victim from the truck while wielding a hatchet, with the victim stating he was not actually in sustained fear—fit the attempted criminal threats theory, which applies where every element is present except the victim's actual sustained fear. Identification was supported by deputies who detained Conway matching the description, the victim's confirmation that deputies contacted the right person, and Conway's admission that he placed the hatchet on the trash can.
Exclusion of evidence of Benjamin S.'s prior infraction offered as impeachment (Anders issue 3) “3. Did the trial court abuse its discretion by excluding evidence of Benjamin S.’s prior infraction as impeachment?”	abuse of discretion	correct	unsure The opinion merely lists this as a possible issue counsel considered and does not describe the infraction, the basis for exclusion, or the trial court's reasoning. The court's implicit conclusion that it presents no arguable issue is plausible (an infraction is generally not a crime of moral turpitude usable for impeachment), but the opinion gives no facts from which to independently confirm this.
Trial counsel's failure to request CALCRIM No. 3426 (voluntary intoxication) as to the specific intent for attempted criminal threats (Anders issue 4) “4. Was trial counsel ineffective for failing to request CALCRIM No. 3426 as a defense to the required specific intent for attempted criminal threats given Benjamin S.’s testimony that appellant was “probably drunk off his butt”?”	unclear	correct	unsure Ineffective-assistance claims resting on omitted instruction requests are rarely cognizable on direct appeal because the record typically does not reveal counsel's reasons, and a tactical choice to avoid an intoxication instruction is conceivable. The opinion provides no detail, so the implicit finding of no arguable issue is defensible but cannot be independently verified from the opinion.

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 should file a brief referring to anything in the record that might arguably support the appeal, and the court must then examine the record.

The appellate opinion: sound — The opinion properly follows the Wende/Anders procedure, states that the entire record was reviewed, identifies the issues counsel considered, and affirms without finding arguable error. It contains no substantive legal analysis, which is permissible in a Wende affirmance, so there is no misreading of law to critique.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 2/10/26 P. v. Conway 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, D085409

Plaintiff and Respondent, v. (Super. Ct. No. SCE425196)

KENNETH CHARLES CONWAY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed.

Annie Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In November 2024, a jury found Kenneth Charles Conway guilty of one count of attempted criminal threats (Pen. Code, §§ 664, 442; count 1)1 with an allegation that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and one misdemeanor count of brandishing a weapon (§ 417, subd. (a)(1)). For the felony, the court placed Conway on probation for two years and imposed but stayed 365 days of custody pending successful completion of a residential treatment program. For the misdemeanor, the court placed Conway on summary probation for one year, to run concurrently with the felony count. Conway appealed. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Conway the opportunity to file his own brief on appeal, but he has not responded. FACTUAL BACKGROUND Benjamin S., who worked as a repossession agent for financial institutions, received information about the location of a BMW that needed repossession. He went to the location in the early morning of April 12, 2024, and saw the vehicle parked next to a dumpster. Benjamin S. verified the license plate, turned his tow truck around, and backed into the driveway. As he backed into the driveway, he saw a man approaching him from across the street. The man opened his leather vest, pulled out a hatchet, and yelled that it wasn’t “going to happen today.” Benjamin S. closed the truck door as the man approached because the man appeared aggravated and possibly under the influence as he wielded the hatchet and yelled expletives.

1 Undesignated statutory references are to the Penal Code.

2 The man said he had a gun and he was going to shoot Benjamin S. He threatened to break the windows and drag Benjamin S. from the truck. The man came within arm’s distance from the driver’s side of the truck before moving behind the truck where he started to knock things over. Benjamin S. was concerned about what the man would do with the hatchet. He was concerned the man might act on his threats and seriously injure him. Benjamin S., a combat veteran, said fear is a relative term. Even though he felt the man was threatening his life and he was concerned the man could hurt him, Benjamin S. said he was not personally afraid given his life experiences. Benjamin S. tried to deescalate the situation by asking the man to put down the hatchet and to come out from the shadows. After several minutes, Benjamin S. called 911 because he felt threatened with the hatchet and he could not see what the man was doing in the shadows. They were on a dark road and the man had a cell phone, which made Benjamin S. think the man could call some buddies. Benjamin S. thought there was a high potential the situation would turn out badly. Benjamin S. told the 911 dispatcher the man was swinging the hatchet, threatening to shoot him, and saying he had “nothing left to lose.” He said the man threatened him with the hatchet by swinging it at his window. The man appeared drunk. When another individual came out to the truck, the first man tried to hide in the blind spot outside of the spotlights on the back of the truck. Benjamin S. could not confirm at trial that Conway was the man who approached him with the hatchet. But he confirmed that the responding deputies contacted the correct person when they arrived at the scene. Two 3 responding deputy sheriffs identified Conway as the man they detained who fit the description of the man with the hatchet. Conway admitted he placed the hatchet on top of a trash can behind the tow truck. A deputy located an axe with an orange handle on a trash can by the BMW. DISCUSSION As we have noted, appellate counsel filed a Wende brief and asked the court to review the record for error. To assist the court in its review and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel identified the following possible issues that were considered in evaluating the potential merits of this appeal: 1. Is there sufficient evidence of attempted criminal threats? 2. Is there sufficient evidence of appellant’s identification? 3. Did the trial court abuse its discretion by excluding evidence of Benjamin S.’s prior infraction as impeachment? 4. Was trial counsel ineffective for failing to request CALCRIM No. 3426 as a defense to the required specific intent for attempted criminal threats given Benjamin S.’s testimony that appellant was “probably drunk off his butt”? We have reviewed the entire record as required by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Conway on this appeal.

4 DISPOSITION The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

KELETY, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12