People v. Gordon CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN445081
- Trial judge
- Brad A. Weinreb
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Julia C. Kelety (author), Bermudez
Analysis
The trial court revoked Gordon's probation for new offenses and violations of probation terms, imposing the previously stayed 11-year prison sentence. The Court of Appeal affirmed the judgment after an independent review of the record found no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and imposition of the stayed 11-year prison sentence“whether the court abused its discretion in refusing to reinstate Gordon to probation.” | abuse of discretion | not reached | unsure The appellate court stated it independently reviewed the record and found no arguable issues for reversal, effectively declining to analyze the specific abuse of discretion claim raised by counsel. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by the appellate court when appointed counsel files a Wende brief indicating no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record to ensure no arguable issues are overlooked when counsel identifies no issues for appeal.
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 identifies no issues. However, it is a 'sound with gaps' opinion because it fails to provide any substantive legal analysis or reasoning for why the trial court's decision was not an abuse of discretion, relying solely on the negative finding of 'no arguable issues.'
How this analysis was made · dispute it
unusual dispositionThe trial court revoked Nicholas Gordon's probation after a compliance check found alcohol use, cocaine, and a firearm in his apartment, declined to reinstate probation, and executed the previously imposed and suspended 11-year prison sentence. On appeal, appointed counsel filed a Wende brief; the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and refusal to reinstate probation, resulting in execution of the suspended 11-year prison sentence“whether the court abused its discretion in refusing to reinstate Gordon to probation.” | abuse of discretion | correct | agree with court The record quoted in the opinion shows Gordon admitted relapsing on alcohol and using narcotics the night of the search, registered a .04 breath result, and cocaine with a sniffing device was found on the table in his studio apartment where he was the only person present; a firearm was also found. Violation of probation conditions need only be shown by a preponderance, and given the underlying offense (fatal DUI collision with multiple drugs in his system) and admitted drug and alcohol use while not in treatment, a decision to execute the suspended sentence rather than reinstate is well within the trial court's broad discretion. Even accepting Gordon's claim the gun belonged to his brother, the admitted alcohol and drug violations independently support revocation. |
Appellate court's independent Wende/Anders review of the record finding no arguable issues“We have independently reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.” | de novo | correct | agree with court The court followed the Wende/Anders procedure: counsel identified a possible issue, the defendant was given notice and an opportunity to file a supplemental brief and did not, and the court independently reviewed the record. Whether full Wende review is required in an appeal from a postjudgment probation revocation order (see People v. Delgadillo (2022) 14 Cal.5th 216, limiting Wende to the first appeal as of right) is not discussed, but conducting the review is more protective of the defendant and cannot prejudice him. The opinion's description of the offense as gross vehicular manslaughter under Vehicle Code section 23153, subdivision (a) appears to conflate the DUI-causing-injury statute with the Penal Code manslaughter offense, but this is background recitation that does not affect the result. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous must file a brief referring to anything in the record that might arguably support the appeal, and the court must then decide whether the appeal is wholly frivolous.
The appellate opinion: sound with gaps — The result is clearly defensible: the quoted record shows admitted alcohol and drug use in violation of probation following a fatal DUI conviction, which amply supports revocation and execution of the suspended sentence. The opinion is thin, however: it does not describe the trial court's reasoning, does not cite the probation-revocation standard (e.g., People v. Rodriguez (1990) 51 Cal.3d 437), misstates the statute for the underlying offense, and does not address whether Wende review was required for a postjudgment revocation appeal, though conducting it worked no prejudice.
How this analysis was made · dispute it
record incompleteOpinion
Filed 9/8/26 P. v. Gordon 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, D086449
Plaintiff and Respondent, (Super. Ct. No. SCN445081)
v.
NICHOLAS CHANDLER GORDON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Brad A. Weinreb, Judge. Affirmed. Asya Ovsepyan, under appointment by the Court of Appeal, No appearance by Plaintiff and Respondent.
In 2023, Nicholas Chandler Gordon was involved in a traffic accident in which another person was killed. Gordon was charged with multiple offenses including gross vehicular manslaughter (Veh. Code, § 23153, subd. (a)). The charges included other offenses and enhancements. Prior to trial, Gordon entered a guilty plea to the court. Gordon did not receive any concessions from the prosecution as part of the plea agreement. The court indicated the sentence would be 11 years in prison, suspended pending successful completion of 11 years of formal probation. The grant of probation was subject to 365 days in jail. The court sentenced consistently with its assurances, and Gordon was placed on probation. In November 2024, the probation department filed a motion to revoke probation because new charges had been filed against Gordon. The probation revocation hearing was conducted at the same time as the preliminary hearing for the new offenses. After the testimony was completed, the court revoked probation and imposed the stayed, 11-year prison sentence. Gordon filed a timely notice of appeal challenging the trial court’s refusal to reinstate probation. Appellate counsel has filed a brief under the authority of 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 independently review the record for error as mandated by Wende. We offered Gordon the opportunity to file his own brief on appeal, but he has not responded to our notice. STATEMENT OF FACTS Appellate counsel has offered a summary of the facts of the offenses and the hearing on the revocation of probation. We will include appellant’s summary for background information.
2 “A. Statement of Facts Related to Superior Court Case Number SCN445081.1 “On July 01, 2023, officers were dispatched to a multivehicle collision. (CT 17.) Upon arrival, a white Kia Spectra was on its roof and a white Toyota Corolla with crash damage was facing the wrong direction in the number three lane. (CT 17.) The driver of the Toyota was determined to be appellant, and he had a visible deformity to his right arm, laceration to his right eye, and facial bruising. (CT 17.) The passenger of the Toyota had visible cuts and bruising to his face and complained of pain to his hips and chest. (CT 17.) The driver of the Kia was pronounced deceased on scene. (CT 17.) Appellant admitted he was the driver of the Toyota, and it was determined that he had a 0.121% blood alcohol concentration level about an hour and half after driving. (CT 17.) Appellant’s blood was tested resulting in the presence of marijuana, cocaine, morphine, fentanyl, benzoylecgonine and acetaminophen. (CT 17.) “A witness told officers appellant was observed to be travelling at a speed of 100 miles per hour when he veered into the number two lane and struck the rear of the Kia, causing the Kia to go “flying into the air” and rest on its roof. (CT 18.)
1 “The statement of facts for Superior Court Case Number SCN445081 are derived from the probation officer’s report.”
3 “B. Statement of Facts Related to the Probation Violation. “Deputy probation officer Jason Mageo was assigned to supervise appellant while appellant was on probation. (Prelim Transcript 7.)2 Appellant had several conditions he needed to comply with for his probation. (Prelim Transcript 7.) Some of the terms of probation were not to consume alcohol, not to possess a deadly weapon, firearms, knives, and not to use or possess controlled substances. (Prelim Transcript 7-8.) “Mageo has conducted probation compliance checks at 3240 Mission Avenue in Oceanside on three or four previous occasions. (Prelim Transcript 8.) It is a small studio apartment about 300 to 400 square feet. (Prelim Transcript 9.) On October 30, 2024, at around 9:00 p.m., Mageo conducted a probation compliance check with other probation officers at that address. (Prelim Transcript 9.) Appellant was the only one present. (Prelim Transcript 9.) Appellant was breathalyzed upon contact to determine if he was under the influence and the results were .04. (Prelim Transcript 10, 13.) During the search of appellant’s apartment, a semiautomatic firearm was located in the dresser. (Prelim Transcript 15, 28-29.) Towards the end, when Mageo was walking out with appellant, a white substance, opined to be either cocaine or methamphetamine, was located on the table with a sniffing device, which was a rolled up five-dollar bill. (Prelim Transcript 15, 32.)
2 “The preliminary hearing transcript is from November 26, 2024, whereas the court held both the probation violation hearing and the preliminary hearing simultaneously. Additionally, appellant’s motion to augment the record on appeal was granted on May 26, 2026, to include the reporter’s transcript on appeal.”
4 “Appellant testified he was sharing his apartment with [his] brother Matthew Gordon. (Prelim Transcript 52.) Gordon would stay at the apartment about three or four nights out of the week. (Prelim Transcript 52.) “Appellant relapsed and started drinking the week before he got arrested for the probation violation. (Prelim Transcript 51.) Appellant had gotten into an argument with his fiancée who did not allow appellant to see his two-year-old daughter. (Prelim Transcript 50-51.) Appellant would not drive to go see his daughter because he did not want to violate probation by driving. (Prelim Transcript 51.) “When officers searched the apartment appellant was in on October 30, 2024, the white crystalline substance found on the table was cocaine. (Prelim Transcript 52.) Appellant was drinking and had used narcotics that night. (Prelim Transcript 52.) Appellant was not seeking any counseling or treatment at that time. (Prelim Transcript 52.) “The gun the probation officers found in the apartment was not appellant’s gun. (Prelim Transcript 53.) The gun was found in a drawer belonging to Gordon. (Prelim Transcript 53.) Appellant keeps his belongings in the closet and had notified the probation officers of that prior to the search. (Prelim Transcript 53.)” DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks 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 has identified a possible issue that was considered in evaluating the potential merits of this appeal: whether the court abused its discretion in refusing to reinstate Gordon to probation.
5 We have independently reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Gordon has been represented by competent counsel in this appeal. DISPOSITION The judgment is affirmed.
HUFFMAN, J.* WE CONCUR:
KELETY, Acting P. J.
BERMÚDEZ, J.
* Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12