People v. Orellana CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN451848
- Trial judge
- Kelly C. Mok
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Laurence D. Rubin (author), Judith D. McConnell, William S. Dato
Analysis
The trial court sentenced Orellana to four years in prison for robbery, doubling the base term due to a prior strike conviction while striking other enhancements. 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 |
|---|---|---|---|
Affirmance of the judgment following an independent review of the record for error.“We have reviewed the entire record, as required by Wende, supra, 25 Cal.3d 436, considered the issue noted by counsel, and determined there are no grounds for reversal or modification of the judgment.” | de novo | not reached | agree with court The appellate court applied the standard de novo review required in Wende/Anders cases where appointed counsel raises no issues. The court independently examined the record and the specific issue flagged by counsel (sufficiency of evidence) and found no error. This is the correct procedural posture for an unpublished Wende appeal where the defendant did not file a supplemental brief. |
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 give the defendant time to raise 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 — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for appointed counsel appeals. It identifies the issue flagged by counsel, notes the defendant's inaction regarding a supplemental brief, and states the court's independent review found no error.
How this analysis was made · dispute it
unusual dispositionA jury convicted Elmer Orellana of robbery with a personal deadly-weapon-use finding, he admitted a prior serious felony/strike, and the trial court denied his motion to dismiss the strike but struck the serious-felony and weapon enhancements, imposing a doubled low term of four years. On appeal, appointed counsel filed a Wende brief raising no issues, Orellana 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 |
|---|---|---|---|
Judgment of conviction for robbery (Pen. Code, § 211) and jury's true finding on personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)) — sufficiency of the evidence, the sole issue counsel flagged as arguably supporting the appeal“Orellana displayed a knife, warned the security guard not to get close or to touch him, and then fled.” | unclear | correct | agree with court The opinion does not articulate the substantial-evidence standard, but the recited facts (taking merchandise, then brandishing a knife at the pursuing guard to retain it and escape) describe a classic use of force or fear during asportation and a personal knife display, which readily supports both the robbery verdict and the weapon-use finding. Nothing in the opinion suggests a gap in proof. |
Wende independent review of the entire record, including sentencing (denial of motion to dismiss prior strike, striking of enhancements, doubled low term of four years)“We have reviewed the entire record, as required by Wende, supra, 25 Cal.3d 436, considered the issue noted 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/Kelly procedure: counsel identified an arguable issue, the defendant was notified of his right to file a supplemental brief and did not, and the court reviewed the whole record. The sentence described (low term doubled for the strike, with the serious-felony and weapon enhancements struck) is lawful on its face, and the opinion gives no indication of error in the denial of the motion to dismiss the strike. The opinion's brevity means the reader cannot verify the record independently, but nothing in it points to error. |
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 finds an appeal to be without 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 he chooses.
- relied: People v. Kelly (2006) 40 Cal.4th 106 — A defendant in a Wende appeal has the right to file supplemental contentions, and the appellate opinion should describe the procedural history, the issues counsel flagged, and the court's review.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders/Kelly framework for a no-issue brief on a first appeal of right, confirms the defendant was given the opportunity to file a supplemental brief, and reports an independent record review finding no error. Its only blemishes are minor: a typographical reference to section '12202' in the background and no express statement of the substantial-evidence standard, neither of which affects the result.
Opinion
Filed 4/2/26 P. v. Orellana 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, D085252
Plaintiff and Respondent, v. (Super. Ct. No. SCN451848)
ELMER ORELLANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kelly C. Mok, Judge. Affirmed. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Elmer Orellana appeals the judgment sentencing him to prison for four years after a jury found him guilty of robbery. His appointed counsel filed a brief in which he 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 In an incident captured by video surveillance, Orellana entered a store, picked out several items, and exited without paying for them. One of the items activated an alarm. A security guard followed Orellana into the parking lot and asked whether he had paid for the items. Orellana displayed a knife, warned the security guard not to get close or to touch him, and then fled. Orellana was arrested three weeks later. The People charged Orellana with robbery (Pen. Code, § 211) and alleged that in the commission of the robbery he personally used a deadly or dangerous weapon (id., § 12202, subd. (b)(1)). They also alleged he had a prior conviction that qualified as a serious felony (id., § 667, subd. (a)(1)) and as a strike under the “Three Strikes” law (id., §§ 667, subds. (b)–(i), 1170.12). A jury found Orellana guilty of robbery and found true the allegation he personally used a deadly or dangerous weapon in committing the robbery. He waived his right to trial on the prior conviction allegations and admitted them. At the sentencing hearing, the trial court denied Orellana’s motion to dismiss the allegations concerning the prior strike conviction, but it struck the additional punishment for the prior serious felony conviction and weapon- use enhancement. The court imposed the low term of two years in prison for the robbery conviction (Pen. Code, § 213, subd. (a)(2)) and doubled the term to four years based on the prior strike conviction (id., §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
2 DISCUSSION Orellana’s appointed counsel filed a brief in which he summarized the proceedings, raised no claims of error, and asked us independently to review the record 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 noted the following issue “that might arguably support the appeal”: “Was the testimony and evidence sufficient to support [Orellana’s] count 1 conviction of robbery in violation of [Penal Code] section 211 and the jury’s finding that [he] personally used a dangerous and deadly weapon in the commission of the robbery within the meaning of section[ ] 12022, subdivision (b)(1)?” (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 Orellana 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 issue noted by counsel, and determined there are no grounds for reversal or modification of the judgment. We also have determined Orellana received competent representation on appeal.
3 DISPOSITION The judgment is affirmed.
RUBIN, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
Cites, in this corpus
- People v. Kelly S133114 · 2006-11-27
- People v. Wende Crim. 20851 · 1979-10-12