People v. Helms CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD242367
- Trial judge
- Howard H. Shore
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Cynthia Aaron (author), Richard D. Huffman, Sr., Patricia D. Benke
Analysis
The trial court accepted a guilty plea to four counts of conspiracy to practice medicine without a license, sentenced the defendant to three years in custody, and ordered the payment of approximately $67,500 in restitution to four victims. The appellate court affirmed the judgment after a Wende review found no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Ordering restitution to Gina Endicott, who was not a named victim in the felony complaint.“Whether the trial court erred by ordering appellant to pay restitution to Gina Endicott who was not a named victim in the felony complaint filed against appellant” | unclear | not reached | unsure The court did not analyze this issue, stating only that the review disclosed no reasonably arguable appellate issues. |
Releasing $15,000 seized from the defendant to victims as restitution without notice and a hearing.“Whether appellant was entitled to notice and a hearing before the trial court ordered $15,000 seized from appellant be released to the victims as payments toward the restitution ordered by the court” | unclear | not reached | unsure The court did not analyze this issue, stating only that the review disclosed no reasonably arguable appellate issues. |
Denial of the motion to return a colloidal silver machine and a supply of Regeneren.“Whether the trial court abused its discretion by denying appellant's motion to return a colloidal silver machine and a supply of a drug known as Regenersen” | unclear | not reached | unsure The court did not analyze this issue, stating only that the review disclosed no reasonably arguable appellate issues. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed counsel to review the record for error and file a brief if no arguable issues are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to identify potentially arguable issues in the record for the court's independent review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing a case where counsel finds no arguable issues. However, it provides no substantive legal analysis for the specific restitution and property return issues raised, leaving the reader without insight into why those issues were deemed non-arguable.
How this analysis was made · dispute it
unusual dispositionFollowing Kathleen Helms's guilty plea to four counts of conspiring to treat the sick without a license (Bus. & Prof. Code, § 2052, subd. (b)), the San Diego Superior Court denied probation, imposed a stipulated three-year split term (18 months custody, 18 months mandatory supervision), and ordered roughly $67,500 in victim restitution to four individuals. On appeal, appointed counsel filed a Wende brief identifying three possible issues; the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and three-year split sentence entered on guilty plea (Wende/Anders independent review of entire record)“A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.” | unclear | correct | agree with court The court followed the required Wende procedure: counsel filed a no-issues brief, the defendant was invited to file a supplemental brief and did not, and the court independently reviewed the record and stated it found no arguable issues. The opinion describes the charges, plea, and sentence sufficiently for a Wende disposition. The sentence matched the stipulated plea bargain, and a defendant generally cannot challenge a stipulated sentence without a certificate of probable cause. Nothing in the opinion suggests the procedure was misapplied. |
Order of victim restitution of $26,755.67 to Gina Endicott, who was not a named victim in the felony complaint“"Whether the trial court erred by ordering appellant to pay restitution to Gina Endicott who was not a named victim in the felony complaint filed against appellant"” | unclear | correct | unsure Restitution under Penal Code section 1202.4 is ordinarily limited to losses caused by the crimes of conviction unless the defendant gives a Harvey waiver or is placed on probation or similar supervision, where broader restitution may be imposed as a condition. The opinion does not disclose whether Endicott's losses arose from the conspiracy counts of conviction, whether the plea included a Harvey waiver, or whether the restitution was tied to the mandatory supervision term. Because the court resolved this only by stating no arguable issue existed, and the opinion does not supply the facts needed to evaluate it, I cannot independently confirm or dispute the conclusion. |
Release of $15,000 in seized funds to victims as restitution payments without prior notice and hearing to defendant“"Whether appellant was entitled to notice and a hearing before the trial court ordered $15,000 seized from appellant be released to the victims as payments toward the restitution ordered by the court"” | unclear | correct | unsure Applying seized funds toward a restitution order the defendant was already obligated to pay would ordinarily cause no cognizable prejudice, since the funds reduce her liability. The opinion provides no detail on the procedure used, whether Helms objected, or whether she claimed a competing ownership interest. Without those facts, the court's no-arguable-issue conclusion is plausible but cannot be independently verified. |
Denial of defendant's motion for return of a colloidal silver machine and a supply of the drug Regenersen“"Whether the trial court abused its discretion by denying appellant's motion to return a colloidal silver machine and a supply of a drug known as Regenersen."” | abuse of discretion | correct | unsure Counsel framed the issue as abuse of discretion, and denial of a motion to return property is reviewed deferentially. Items used as instrumentalities of the unlicensed practice of medicine, or substances that cannot lawfully be possessed or dispensed without a license, are commonly subject to retention or destruction. The opinion gives no facts about the basis for denial, so the conclusion appears reasonable but cannot be confirmed from the opinion alone. |
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 before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may file a brief referring to anything in the record that might arguably support the appeal, after which the court conducts its own examination.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure: it recites the procedural history, notes the defendant was invited to and did not file a supplemental brief, lists counsel's possible issues, and states that independent review disclosed no arguable issues, which is all that procedure requires. It does not explain why the Endicott restitution or the release of seized funds is unarguable, but Wende opinions are not required to do so; the only noticeable defect is an apparent typographical reference to 'Penal Code section 1179, subdivision (h)(5)(B)' where section 1170, subdivision (h)(5)(B) is evidently meant.
How this analysis was made · dispute it
record incompleteOpinion
Filed 1/28/14 P. v. Helms 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, D063900
Plaintiff and Respondent, v. (Super. Ct. No. SCD242367)
KATHLEEN ANN HELMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Howard H.
Shore, Judge. Affirmed.
Cannon & Harris, Donna L. Harris, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Kathleen Ann Helms pled guilty to four counts of conspiring with another to treat the sick and afflicted without a license, in violation of Business & Professions Code section 2052, subdivision (b). The trial court sentenced Helms to a total term of three years, and ordered Helms to pay approximately $67,500 in restitution to four victims.
We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
By amended felony complaint the San Diego County District Attorney charged Helms with multiple counts of treating the sick and afflicted without a license (Bus. & Prof. Code, § 2052, subd. (a); counts 1, 2, 7, 8, 17, & 18), multiple counts of conspiring with another to treat the sick and afflicted without a license (Bus. & Prof. Code, § 2052, subd. (b); counts 3, 4, 5, 9, 10, & 12-16), and two counts of grand theft of personal property (Pen. Code, § 487, subd. (a); counts 6 and 11). The complaint further alleged that Helms personally inflicted great bodily injury on one of the victims, in connection with count 5.
Helms waived her right to a jury trial and pled guilty to counts 3, 9, 12 and 16. In exchange for Helms's guilty plea, the People agreed to a stipulated three-year sentence, of which Helms was to serve 18 months in custody and 18 months under mandatory supervision pursuant to Penal Code section 1179, subdivision (h)(5)(B), and dismissal of the remaining charges.
As the factual basis for her guilty plea, Helms admitted that she unlawfully practiced medical care to others without possessing a valid California license to practice medicine.
2 The trial court denied probation and ordered Helms committed to the custody of the sheriff's department for an aggregate term of three years. The court ordered Helms to serve 18 months in custody, and the remaining 18 months of her term under the mandatory supervision of the probation department. In addition to ordering Helms to pay mandatory fines and fees, the court ordered Helms to pay victim restitution in the following amounts: $19,257.35 to Julie Hinze, $15,000 to Michael Altschul, $5,535 to Jeremy McLaughlin as trustee for Richard Rebuffattee, and $26,755.67 to Gina Endicott.
Helms filed a timely notice of appeal.
Helms's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We invited Helms to file a brief on her own behalf, but she has not responded.
III.
DISCUSSION
Helms's counsel presents no argument for reversal, but asks this court to review the record for error, as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel lists the following as possible, but not arguable, issues:
(1) "Whether the trial court erred by ordering appellant to pay restitution to Gina Endicott who was not a named victim in the felony complaint filed against appellant";
(2) "Whether appellant was entitled to notice and a hearing before the trial court ordered $15,000 seized from appellant be released to the victims as payments toward the restitution ordered by the court"; and 3 (3) "Whether the trial court abused its discretion by denying appellant's motion to return a colloidal silver machine and a supply of a drug known as Regenersen."
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Helms has been competently represented by counsel in this appeal.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12