People v. Evans CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN311876
- Trial judges
- K. Michael Kirkman; Timothy M. Casserly
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court accepted Harold Evans's guilty plea to criminal threats, admitted a prior strike conviction, and sentenced him to four years in prison pursuant to a plea agreement. 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 |
|---|---|---|---|
Affirmance of the judgment following a Wende/Anders review“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.” | de novo | not reached | agree with court The appellate court conducted an independent review of the record as required by People v. Wende and Anders v. California. It concluded that no reasonably arguable issues existed, thereby affirming the judgment. This is the standard procedure for appeals where counsel files a Wende brief. |
Denial of Marsden motion“Did the court properly deny the Marsden motion? If so, is such denial appealable in the absence of a certificate of probable cause?” | abuse of discretion | not reached | unsure The opinion lists the denial of the Marsden motion as a potential issue identified by counsel. However, the court states it found no reasonably arguable issues after review, implying the denial was not reversible error or not properly before the court without a certificate of probable cause. The court did not explicitly analyze the merits of the Marsden denial. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying potential issues and the court to conduct an independent review of the record when no arguable issues are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who believes an appeal is wholly frivolous, requiring a brief identifying potential issues and court review.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — Establishes the standard for granting a motion for new counsel based on a breakdown in the attorney-client relationship.
The appellate opinion: sound — The opinion is procedurally sound as it follows the mandatory Wende/Anders protocol for reviewing appeals where counsel identifies no arguable issues. It correctly cites the controlling authorities for this specific procedural posture.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Harold Evans's guilty plea to criminal threats with an admitted strike prior, denied his pre-plea Marsden motion, and imposed the stipulated four-year prison term. On appeal, counsel filed a Wende/Anders brief, Evans 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 |
|---|---|---|---|
Acceptance of the guilty plea (advisement of rights and consequences, factual basis) and imposition of the stipulated four-year sentence with fees and fines“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 conducted the independent record review required by Wende and Anders after counsel identified possible but not arguable issues. The opinion states the factual basis came from the preliminary hearing transcript and the sentence matched the plea agreement; nothing in the opinion suggests error, and no certificate of probable cause was obtained, which limits review of plea validity under section 1237.5. |
Denial of the pre-plea Marsden motion“Prior to the entry of his guilty plea, Evans made a motion under People v. Marsden (1970) 2 Cal.3d 118. The court held a hearing and denied the motion.” | unclear | correct | unsure A Marsden denial is reviewed for abuse of discretion, but the court did not separately analyze it, treating it within the Wende review. The opinion itself notes the issue of whether a pre-plea Marsden denial is cognizable without a certificate of probable cause, and existing authority generally holds such claims attack the validity of the plea and require a certificate. The opinion provides little detail, so the conclusion is defensible but unverifiable from the text. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the appellate court 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 may so advise the court and identify anything in the record that might arguably support the appeal.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be given a hearing to state the reasons for dissatisfaction.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure, lists the possible issues counsel identified, and confirms independent review of the record, which is all that is required when no arguable issues exist. It does not discuss the certificate of probable cause question it raises regarding the Marsden denial, but that omission does not affect the result because the court found no arguable issue either way.
Opinion
Filed 10/30/13 P. v. Evans 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, D063828
Plaintiff and Respondent, v. (Super. Ct. No. SCN311876)
HAROLD EVANS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman and Timothy M. Casserly, Judges. Affirmed.
Appellant Defenders, Inc. and David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Harold Evans entered into a plea agreement, under the terms of which he pleaded guilty to one count of criminal threats (Pen. Code,1 § 422) and admitted a "strike" prior conviction (§ 667, subds. (b)-(i)). Under the agreement the parties stipulated Evans 1 All further statutory references are to the Penal Code unless otherwise specified. would serve a four-year prison sentence and that the remaining counts and allegations would be dismissed.2 Evans was sentenced to a four-year term consistent with the plea agreement.
Evans filed a timely notice of appeal but did not obtain a certificate of probable cause (§ 1237.5).
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 possible, but not arguable issues. We offered Evans the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
The factual basis for the guilty plea was taken from the transcript of the preliminary hearing. The complaining witness testified that she and Evans were in front of a 7-Eleven store when he made a criminal threat after she had asked him to get out of the car.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he 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 possible, but not arguable issues:
1. Was Evans properly advised of his rights and the consequences of his plea?
2 Prior to the entry of his guilty plea, Evans made a motion under People v. Marsden (1970) 2 Cal.3d 118. The court held a hearing and denied the motion. 2 2. Is there a factual basis for the plea?
3. Did Evans receive the agreed upon sentence?
4. Did the court correctly impose the fees and fines selected at sentencing?
5. Did the court properly deny the Marsden motion? If so, is such denial appealable in the absence of a certificate of probable cause?
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 Evans on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Marsden Crim. 14119 · 1970-02-26