People v. Mohamed CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD236801
- Trial judge
- Robert F. O'Neill
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Gilbert Nares
Analysis
The trial court convicted the defendant of assault with a deadly weapon and sentenced him to six years in prison, having previously ruled that evidence of a recent indecent exposure arrest would be admissible for impeachment if the defendant testified. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Admissibility of prior indecent exposure arrest for impeachment“Before trial the prosecution sought permission to impeach Mohamed with conduct involved in a recent incident of indecent exposure. After review the court ruled such impeachment would be permitted if Mohamed testified.” | unclear | not reached | unsure The appellate court identified this as a 'possible, but not arguable issue' in the Wende brief but did not provide specific reasoning or apply a standard of review to the trial court's ruling, instead relying on its independent review of the entire record to find no error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by the court of appeal when appointed counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any possible, though not arguable, issues and to request the court to review the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing a case where appointed counsel finds no arguable issues. However, it is a 'sound with gaps' analysis because it fails to explicitly address the specific legal standard for the impeachment evidence identified in the brief, relying solely on the general statement that no error was found in the independent review.
How this analysis was made · dispute it
unusual dispositionAfter a jury convicted Maki Mohamed of assault with a deadly weapon with great bodily injury and deadly weapon findings, the trial court sentenced him to six years, having earlier ruled before trial that the prosecution could impeach him with conduct from a recent indecent exposure incident if he testified; he did not testify. On appeal, appointed counsel filed a Wende/Anders brief identifying only the impeachment ruling as a possible issue, Mohamed filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Pretrial ruling permitting the prosecution to impeach Mohamed with conduct from a recent indecent exposure incident if he testified“Whether the court erred in concluding the events involved in Mohamed's recent arrest for indecent exposure was admissible as impeachment evidence?” | unclear | correct | agree with court The opinion does not state a standard of review or analyze the ruling; it simply concludes after Wende review that no reasonably arguable issue exists. The conclusion is defensible because Mohamed did not testify, and under People v. Collins (1986) 42 Cal.3d 378 a defendant who does not testify cannot obtain appellate review of an in limine impeachment ruling, so the issue could not be arguable regardless of its merits. Admissibility of prior conduct for impeachment is also committed to the trial court's discretion under Evidence Code section 352. |
Judgment of conviction and six-year sentence (independent Wende review of entire record)“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues.” | unclear | correct | agree with court The court followed the required Wende procedure: counsel filed a no-issue brief, the defendant was given an opportunity to file his own brief and did not, and the court states it reviewed the entire record. Nothing in the recited facts (a deadly weapon assault causing injuries requiring plastic surgery, a six-year determinate term consistent with a midterm plus a three-year section 12022.7 enhancement) suggests an arguable issue the court overlooked. |
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 frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Collins (1986) 42 Cal.3d 378 — A defendant who does not testify at trial may not challenge on appeal a trial court's in limine ruling permitting impeachment with prior conduct or convictions; the ruling is not reviewable absent testimony.
The appellate opinion: sound — The opinion correctly follows the Wende/Anders procedure, recites the facts and the one possible issue counsel identified, and reaches the right result because the pretrial impeachment ruling was unreviewable once Mohamed chose not to testify. It does not cite People v. Collins or otherwise explain why the identified issue is not arguable, but a Wende affirmance is not required to do so, and the result is plainly supported.
Opinion
Filed 10/15/13 P. v. Mohamed 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, D062868
Plaintiff and Respondent, v. (Super. Ct. No. SCD236801)
MAKI MOHAMED,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. Maki Mohamed was convicted following a jury trial of one count of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)). The jury also found true allegations that Mohamed personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)), and that he used a deadly weapon in the commission of the offense (§ 1192.7, subd. (c)(23)).
Mohamed was sentenced to a determinate term of six years in prison. Appellant filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising a possible, but not arguable issue. We offered Mohamed the opportunity to file his own brief on appeal, but Mohamed has not responded.
STATEMENT OF FACTS
On September 25, 2011, the 14-year-old victim, her twin sister and another girl were walking down University Avenue in San Diego. As the girls walked by Mohamed, they heard him say "damn, nice ass," while looking at the back of one of the girls.
Mohamed's comment provoked an angry response from the girls, who threatened to call police. Mohamed began walking or running away. The victim and one of the girls followed Mohamed while the third girl remained behind to call police.
The girls aggressively pursued Mohamed for some distance, and ultimately blocked him from driving away. Mohamed got out of the car and there was further 1 All further statutory references are to the Penal Code unless otherwise specified. 2 argument including repeated threats to call police. During that encounter, Mohamed hit the victim three times on her back and near her ear with a weapon. Mohamed fled from the scene and was arrested shortly thereafter by San Diego police officers.
The victim received injuries to her ear and head, which required plastic surgery and stitches.
Before trial the prosecution sought permission to impeach Mohamed with conduct involved in a recent incident of indecent exposure. After review the court ruled such impeachment would be permitted if Mohamed testified.
Mohamed did not testify at trial.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating she is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies a possible, but not arguable issue:
Whether the court erred in concluding the events involved in Mohamed's recent arrest for indecent exposure was admissible as impeachment evidence?
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues. Competent counsel has represented Mohamed on this appeal.
3 DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12