P. v. .Smith CA4/1

California Court of Appeal · D063927 · 2013-11-18 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD240768
Trial judge: Richard S. Whitney
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), O'Rourke, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:48Z · confidence low

The trial court convicted Andre Deloyne Smith of selling methamphetamine, found true three prior felony convictions, and sentenced him to six years in state prison. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no reasonably arguable issues.

Ruling reviewed	Standard	The court	The model
Denial of three motions to replace counsel “Did the trial court abuse its discretion in denying Smith's three motions to replace counsel which were made pursuant to People v. Marsden (1970) 2 Cal.3d 118?”	abuse of discretion	not reached	agree with court The appellate court conducted an independent review of the record under People v. Wende and concluded that no reasonably arguable issues existed, thereby declining to address the specific merits of the Marsden motions.
Permission for prosecution to reopen its case “Did the trial court abuse its discretion when it allowed the prosecution to reopen its case?”	abuse of discretion	not reached	agree with court The court identified this as a potential issue in the Anders brief but determined through its independent Wende review that it was not reasonably arguable, thus affirming the trial court's procedural ruling without detailed analysis.
Sufficiency of evidence “Was there sufficient evidence to support the conviction?”	substantial evidence	not reached	agree with court The court reviewed the record and found no error, implicitly upholding the jury's verdict based on the substantial evidence standard, though it did not provide a detailed analysis in the opinion.
Failure to find ability to pay drug program fee “Did the trial court err by failing to find Smith had the ability to pay the drug program fee in light of the other fines and fees he was ordered to pay?”	unclear	not reached	agree with court The court listed this as a possible issue but concluded via Wende review that it was not reasonably arguable, resulting in an affirmance without specific discussion of the fee imposition.

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 counsel finds no arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying potential issues for the court's independent review.
relied: People v. Marsden (1970) 2 Cal.3d 118 — Sets the standard for evaluating motions to replace appointed counsel, requiring a showing of conflict or inability to represent effectively.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing appeals where counsel identifies no arguable issues. However, it is a 'sound with gaps' opinion because it provides no substantive legal analysis for the four specific issues raised, relying entirely on the conclusory statement that no reasonably arguable issues were found.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Andre Deloyne Smith of selling methamphetamine, the trial court found three drug-related prior convictions true, denied three Marsden motions, allowed the prosecution to reopen to call a corroborating detective, and sentenced Smith to six years under Penal Code section 1170, subdivision (h)(5)(B) with fines and fees. On appeal, counsel filed a Wende/Anders brief identifying four possible issues, Smith filed nothing, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of Smith's three Marsden motions to replace appointed counsel “Did the trial court abuse its discretion in denying Smith's three motions to replace counsel which were made pursuant to People v. Marsden (1970) 2 Cal.3d 118?”	abuse of discretion	correct	unsure The opinion recites nothing about the content of the Marsden hearings or the trial court's reasons, so beyond the court's representation that it reviewed the whole record there is no basis in the opinion to evaluate the ruling.
Order permitting the prosecution to reopen its case-in-chief to call Detective Epperson “The court permitted the prosecution to reopen its case to call Detective Julie Epperson to testify she was present at McDonalds on February 8 and witnessed the transaction between Smith and Detective Day.”	abuse of discretion	correct	agree with court Trial courts have broad discretion to permit reopening, and the opinion notes the court mitigated any prejudice by offering the defense the same opportunity to reopen; on the facts stated this appears within the court's discretion, though the opinion gives no analysis of timing or diligence.
Sufficiency of the evidence supporting the conviction for sale of methamphetamine “During the meeting Smith gave Day a package containing .48 grams of methamphetamine. In return Day gave Smith $60.”	substantial evidence	correct	agree with court An undercover detective's testimony that Smith handed him methamphetamine for $60, corroborated by a second detective who observed the transaction, is substantial evidence of a sale under Health and Safety Code section 11379; the jury was entitled to reject the alibi witnesses, who could not pinpoint the specific date.
Imposition of the drug program fee without an express finding of ability to pay in light of other fines and fees “Did the trial court err by failing to find Smith had the ability to pay the drug program fee in light of the other fines and fees he was ordered to pay?”	unclear	correct	unsure The opinion does not state the amount of the fee, whether Smith objected, or what the court found; without that record it is impossible to assess whether the implied or missing ability-to-pay finding was error or forfeited.

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 without merit may file a brief referring to anything in the record that might arguably support the appeal.
relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking to substitute appointed counsel must be given the opportunity to state the reasons, and the court must inquire before ruling.

The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure correctly: it describes the facts and procedural history, lists the possible issues counsel identified, notes the defendant was invited to but did not file a supplemental brief, and states the court independently reviewed the record. It offers no substantive analysis of any of the four issues, which is permissible in a Wende affirmance but leaves the reader unable to verify the Marsden and fee rulings from the opinion alone.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 11/18/13 P. v .Smith 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, D063927

Plaintiff and Respondent, v. (Super. Ct. No. SCD240768)

ANDRE DELOYNE SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Affirmed.

Law Offices of Sarah A. Stockwell and Sarah A. Stockwell for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted Andre Deloyne Smith of sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The court found true three drug-related prior felony convictions. Smith was sentenced to six years in jail, with three years to be served in jail, followed by three years of mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)).

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 Smith the opportunity to file his own brief on appeal, but he has not responded.

STATEMENT OF FACTS

On the evening of February 8, 2012, after several phone messages, San Diego Police detective Michael Day arranged to meet Smith at the McDonalds' restaurant in Linda Vista. During the meeting Smith gave Day a package containing .48 grams of methamphetamine. In return Day gave Smith $60.

Day did not arrest Smith at that time as police hoped to be able to reach Smith's supplier. Police were not successful in further contacting Smith.

Smith testified that he was not at McDonalds with Detective Day. He testified he was training a boxer, Delano Sanders, at a gym at the time of the offense.

Delano Sanders testified he had been training with Smith for some time and that they trained from approximately 4:00 p.m. until about 7:30 or 8:00 p.m. Although Sanders could not remember the specific details of February 8, he was convinced that Smith was with him that day.

Billy Moore, the operator of the gym, confirmed that Smith and Sanders usually trained at the gym beginning around 4:00 p.m. five days a week. Moore could not pinpoint the specific days of training.

2 The court permitted the prosecution to reopen its case to call Detective Julie Epperson to testify she was present at McDonalds on February 8 and witnessed the transaction between Smith and Detective Day. The court also offered Smith the opportunity to reopen the defense case if he wished to do so.

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 the possible, but not arguable issues:

1. Did the trial court abuse its discretion in denying Smith's three motions to replace counsel which were made pursuant to People v. Marsden (1970) 2 Cal.3d 118?

2. Did the trial court abuse its discretion when it allowed the prosecution to reopen its case?

3. Was there sufficient evidence to support the conviction?

4. Did the trial court err by failing to find Smith had the ability to pay the drug program fee in light of the other fines and fees he was ordered to pay?

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 Smith on this appeal.

3 DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting 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