In re Marcus B. CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. J227648
- Trial judge
- Richard R. Monroy
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Gilbert Nares (author), O'Rourke, Joan K. Irion
Analysis
The juvenile court sustained a petition alleging felony corporal injury, felony threats, and felony false imprisonment, dismissing the threats count and reducing the false imprisonment count to a misdemeanor but declining to reduce the corporal injury count. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to Wende and Anders, finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sufficiency of evidence for Count 1 (felony corporal injury) and Count 3 (felony false imprisonment, reduced to misdemeanor).“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 | not reached | unsure The court performed an independent review of the record as required by Wende and Anders but did not explicitly analyze the sufficiency of the evidence or state a standard of review (e.g., substantial evidence) in the text. It simply concluded no arguable issues existed. |
Refusal to reduce Count 1 (felony corporal injury) to a misdemeanor.“Did the court abuse its discretion in deciding not to reduce count 1 to a misdemeanor.” | unclear | not reached | unsure The court identified this as a possible issue in the Anders brief but did not provide any reasoning or apply a specific standard of review (such as abuse of discretion) in the opinion text. It merely stated that no reasonably arguable issues were found after review. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying arguable issues or, if none exist, to request the court to review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying arguable issues or, if none exist, to request the court to review the record for error.
The appellate opinion: sound with gaps — The opinion is procedurally sound in that it follows the Wende/Anders protocol by stating that the court reviewed the entire record and found no arguable issues. However, it is a 'sound with gaps' opinion because it fails to explicitly address the specific legal standards (substantial evidence for sufficiency, abuse of discretion for reduction) for the issues raised in the Anders brief, relying solely on the negative conclusion of the review.
How this analysis was made · dispute it
unusual dispositionThe juvenile court sustained a Welfare and Institutions Code section 602 petition finding Marcus B. committed felony infliction of corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a)) and false imprisonment (reduced to a misdemeanor), dismissed a criminal threats count on his motion, and declined to reduce the corporal injury count to a misdemeanor. On appeal, counsel filed a Wende/Anders brief identifying sufficiency of the evidence and the refusal to reduce count 1 as possible issues; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sufficiency of the evidence to support the true findings on count 1 (corporal injury, § 273.5) and count 3 (false imprisonment)“1. Whether the evidence is sufficient to support the findings on count 1 and count 3” | substantial evidence | correct | agree with court The victim testified Marcus pushed her so her head struck a light switch, kicked her legs while she was on the floor, withheld her phone and closed the windows when she tried to call for help; the officer corroborated the bump and scratch. Viewed in the light most favorable to the judgment, this supports both a traumatic condition under § 273.5 and the restraint element of false imprisonment. The court's conclusion that no arguable issue exists is consistent with the recited record. |
Juvenile court's refusal to reduce count 1 (a wobbler) to a misdemeanor“2. Did the court abuse its discretion in deciding not to reduce count 1 to a misdemeanor.” | abuse of discretion | correct | agree with court The juvenile court expressly declined to reduce count 1 while reducing count 3, which shows it was aware of and exercised its discretion as to the wobbler. Given the evidence of pushing, kicking, and preventing the victim from calling for help, a decision to keep the offense a felony is within the range of reason. The opinion gives no detailed analysis, but nothing in the recited record suggests an abuse of discretion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing 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 wholly frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure, recites the record, identifies the two possible issues raised by counsel, and finds no arguable error; the recited facts support the true findings and the discretionary decision not to reduce count 1. It is a bare Wende affirmance that offers no substantive analysis of either issue, so its soundness rests on the independent review it states it performed rather than on reasoning shown in the opinion.
Opinion
Filed 11/27/13 In re Marcus B. 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
In re MARCUS B., a Person Coming Under the Juvenile Court Law. D063319 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. J227648)
v. MARCUS B., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard R.
Monroy, Judge. Affirmed.
Anna M. Jauregui-Law, by appointment of the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. A petition was filed alleging that Marcus B. fell within the meaning of Welfare and Institutions Code section 602 because he violated Penal Code1 section 273.5, subdivision (a), felony infliction of corporal injury on the mother of his child (count 1);
section 422, felony threats (count 2); and sections 236 and 237, subdivision (a), felony false imprisonment (count 3).
On Marcus's motion, the court dismissed count 2. The court sustained the petition, reducing count 3 to a misdemeanor. However, the court declined to reduce count 1 to a misdemeanor.
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 Marcus the opportunity to file his own brief on appeal but he has not responded.
FACTUAL BACKGROUND
A. People's Case The victim testified that she had been in a romantic relationship with Marcus and had a one-year-old daughter with him. On the evening of November 13, 2012, they broke up. The following day, Marcus was at her home. Marcus saw some messages on her phone sent by another male. He became angry and started yelling at the victim. Marcus pushed her, causing her to fall backwards, and the back of her head hit the light switch on the wall. She tried to get her phone back, but Marcus would not give it to her. She then 1 All further statutory references are to the Penal Code. 2 tried to open a window to call for help. Marcus closed the windows and pushed her away. She testified that at some point she ended up on the floor, and Marcus kicked her legs twice.
She also testified that Marcus threatened to kill her, but she did not take him seriously and was not scared. She locked herself in the bathroom, crying. Marcus then returned her phone to her and she called the police. She suffered a bump on the back of her head, some scratches on her neck and a scratch on her leg.
Escondido Police Officer Marco Fuentes testified that he responded to a report of a domestic violence incident and observed that the victim was upset and had a scratch on her neck and a bump on the back of her head.
B. Defense Case Marcus testified that he got in an argument with the victim over Facebook postings of a sexual nature. The argument escalated, she pushed him, and he pushed her back. He closed the windows when she tried to call for help because her family had already gotten noise complaints from neighbors, and he did not want them to get evicted from their apartment.
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 following possible, but not arguable issues:
3 1. Whether the evidence is sufficient to support the findings on count 1 and count 3; and 2. Did the court abuse its discretion in deciding not to reduce count 1 to a misdemeanor.
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 Marcus on appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12