People v. Polidore CA4/1

California Court of Appeal · D085222 · 2026-06-16 · Unpublished

Proceeding: appeal from judgment
Trial court: Superior Court of San Diego County · No. SCN451236
Trial judge: Anthony J. Campagna
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Laurence D. Rubin (author), Judith D. McConnell, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T03:21Z · confidence low

The trial court convicted Polidore of first-degree burglary, found a bail enhancement true but struck its punishment, and imposed a two-year sentence. The Court of Appeal affirmed the judgment after an independent review under Wende and Anders found no arguable issues on appeal.

Ruling reviewed	Standard	The court	The model
Denial of section 1118.1 motion for acquittal “whether the trial court improperly denied Polidore’s section 1118.1 motion for acquittal”	unclear	not reached	agree with court agree with court
Refusal to continue trial after denying Marsden motion “whether the trial court erred in refusing to continue trial after denying Polidore’s Marsden3 motion”	unclear	not reached	agree with court agree with court
Failure to instruct on trespass as lesser included offense “whether the trial court should have instructed the jury on trespass as a lesser included offense of burglary”	unclear	not reached	agree with court agree with court
Prosecution's alleged Griffin error “whether the prosecution committed prejudicial Griffin2 error”	unclear	not reached	agree with court agree with court

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appellate counsel when no issues are raised.
relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by appellate counsel when no issues are raised.

The appellate opinion: sound — The court performed the required independent review under Wende and Anders, finding no arguable issues in the record. The disposition is affirmed based on this procedural determination.

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

A San Diego jury convicted Kenneth Polidore of first degree burglary with a non-accomplice-present finding, the court found an out-on-bail allegation true but struck its punishment, and imposed the lower term of two years. On appeal, appointed counsel filed a Wende/Anders brief identifying four potential issues, Polidore filed no supplemental brief, and the Court of Appeal, after independent review of the record, found no arguable issues and affirmed.

Ruling reviewed	Standard	The court	The model
Judgment of conviction for first degree burglary (independent Wende/Anders review of the entire record) “Our independent review confirms there are no arguable issues on appeal. We therefore affirm the conviction.”	unclear	correct	agree with court The court followed the Wende/Anders procedure: counsel filed a no-issue brief, the defendant was notified of his right to file a supplemental brief and did not, and the court states it reviewed the entire record. Nothing in the opinion suggests the procedure was defective, and the facts recited (entry into the laundry room of an inhabited dwelling, removal of a dish towel, attempt to open a locked shed) are consistent with a valid first degree burglary conviction.
Denial of Penal Code section 1118.1 motion for acquittal “(1) whether the trial court improperly denied Polidore’s section 1118.1 motion for acquittal”	unclear	correct	unsure The opinion does not analyze this issue; it simply states no arguable issue exists. The recited facts (unauthorized entry into a dwelling where the owner was living, taking a towel from inside, trying to enter a locked shed) would ordinarily support an inference of entry with intent to steal, but without the court's reasoning or the trial record I cannot independently confirm the ruling.
Alleged Griffin error by the prosecution (comment on defendant's failure to testify) “(2) whether the prosecution committed prejudicial Griffin”	unclear	correct	unsure The opinion identifies Griffin v. California but provides no description of what the prosecutor said or any analysis of prejudice. There is nothing in the opinion from which to evaluate the claim.
Refusal to continue trial after denying Marsden motion “(3) whether the trial court erred in refusing to continue trial after denying Polidore’s Marsden”	unclear	correct	unsure Denial of a continuance and a Marsden motion are ordinarily reviewed for abuse of discretion, but the opinion does not describe the Marsden hearing, the grounds for the continuance request, or the court's reasons. No basis exists in the opinion to agree or disagree.
Failure to instruct on trespass as a lesser included offense of burglary “(4) whether the trial court should have instructed the jury on trespass as a lesser included offense of burglary”	unclear	correct	agree with court Although the opinion does not cite it, People v. Birks (1998) 19 Cal.4th 108 holds that trespass is not a lesser included offense of burglary and a defendant has no right to such an instruction over the prosecution's objection; the trial court had no sua sponte duty to instruct on trespass. The conclusion that this issue is not arguable is therefore correct.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record for arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
relied: Griffin v. California (1965) 380 U.S. 609 — Prosecutorial comment on a defendant's failure to testify violates the Fifth Amendment privilege against self-incrimination.
relied: People v. Marsden (1970) 2 Cal.3d 118 — When a defendant seeks substitution of appointed counsel, the trial court must permit the defendant to state the reasons for the request and inquire into them.
missed: People v. Birks (1998) 19 Cal.4th 108 — Trespass is not a lesser included offense of burglary, and a defendant has no right to an instruction on trespass as a lesser related offense; this directly disposes of the fourth potential issue counsel identified, though Wende review does not require the court to discuss it.

The appellate opinion: sound with gaps — The court correctly followed the Wende/Anders procedure, and a court conducting independent review is not required to explain why each potential issue lacks merit, so the affirmance is defensible. The opinion nevertheless offers no analysis of the four issues counsel flagged and omits authority such as People v. Birks that would have readily resolved the trespass-instruction question.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 6/16/26 P. v. Polidore 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, D085222

Plaintiff and Respondent, v. (Super. Ct. No. SCN451236)

KENNETH POLIDORE,

Defendant and Appellant.

APPEAL from judgment of the Superior Court of San Diego County, Anthony J. Campagna, Judge. Affirmed. Ariana D’Agostino, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Kenneth Polidore appeals from his burglary conviction. His appointed appellate counsel filed an opening brief raising no arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738; Polidore did not file a supplemental brief on his own behalf. Our independent review confirms there are no arguable issues on appeal. We therefore affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Early in the morning on January 11, 2024, Polidore went to a home in Carlsbad that was being renovated and entered the premises. The house has two stories and two built-in accessory dwelling units: one above the garage and one in the rear of the home. The home’s owner was living in the rear unit at the time while other parts of the house were being renovated. Around 6:00 a.m. the owner observed Polidore walking around her backyard and attempting to get into a locked shed. The owner also heard Polidore inside the laundry room which shared a wall with the rear dwelling unit. The owner called the police, who encountered Polidore in the driveway holding a dish towel that came from inside the laundry room. The officers arrested Polidore. The San Diego District Attorney’s Office charged Polidore with first degree burglary (Pen. Code,1 §§ 459, 460, subd. (a)). Prosecutors alleged that someone other than an accomplice was present during the crime (§ 667.5, subd. (c)(21)), which was committed while Polidore was released from custody on bail (§ 12022.1, subd. (b)). A jury found Polidore guilty, determining that a non-accomplice was present during the offense. The trial court found the out-on-bail allegation true at a bifurcated bench trial, but struck the punishment for that enhancement. The trial court imposed the lower term of two years in prison for the burglary.

1 All undesignated section references are to the Penal Code.

2 Polidore filed a timely notice of appeal. His appointed appellate counsel filed an opening brief raising no issues and asking us to review the record for error under Wende and Anders. Counsel identified four potential issues to assist us in our independent review: (1) whether the trial court improperly denied Polidore’s section 1118.1 motion for acquittal; (2) whether the prosecution committed prejudicial Griffin2 error; (3) whether the trial court erred in refusing to continue trial after denying Polidore’s Marsden3 motion; and (4) whether the trial court should have instructed the jury on trespass as a lesser included offense of burglary. Polidore has not filed a supplemental brief despite his counsel and this court informing him of his right to do so.

DISCUSSION

We have reviewed the entire record as required by Wende and Anders, and considered the issues identified by Polidore’s counsel. We find no arguable issue that would result in a reversal or modification of the judgment. We therefore affirm the judgment. Competent counsel has represented Polidore on this appeal.

2 Griffin v. California (1965) 380 U.S. 609. 3 People v. Marsden (1970) 2 Cal.3d 118.

3 DISPOSITION The judgment is affirmed.

RUBIN, J.

WE CONCUR:

MCCONNELL, P. J.

O’ROURKE, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12
People v. Marsden Crim. 14119 · 1970-02-26