People v. Mitchell CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD250081
- Trial judge
- Laura W. Halgren
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court accepted a guilty plea to robbery and imposed a stipulated five-year prison sentence with associated fines and fees. 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 of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the judgment following independent review of the record“As requested by counsel, we reviewed the record for error and did not find any reasonably arguable appellate issues.” | de novo | not reached | agree with court The court applied the standard set forth in People v. Wende, requiring independent review of the record when appointed counsel files a Wende brief. The court found no reasonably arguable issues, leading to affirmance. This is the standard procedure for such appeals. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief summarizing the facts and proceedings and requesting the court to independently review the record for error if no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who believes an appeal is frivolous, including the requirement to identify any possible, but not reasonably arguable, issues.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure for reviewing appeals where appointed counsel finds no arguable issues. The court explicitly states it reviewed the record and found no error, which is the required standard of review in this context.
How this analysis was made · dispute it
unusual dispositionRocky Mitchell pleaded guilty to one count of robbery for a stipulated five-year prison term; at sentencing the trial court denied his request for a new attorney, imposed the agreed term, awarded 81 days of presentence credit (71 actual, 10 conduct), and imposed a $1,400 restitution fine, a stayed $1,400 parole revocation fine, and various assessments and fees. Appointed counsel filed a Wende brief, Mitchell filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of defendant's request at sentencing for appointment of a new attorney (Marsden-type request)“the court denied his request for appointment” | unclear | correct | unsure The opinion mentions the denial only in passing and does not describe the colloquy; under Wende the court independently reviewed the record and found no arguable issue. Without any recitation of what the defendant said or how the court inquired, the opinion gives no basis to confirm or dispute the conclusion that the denial was proper. |
Imposition of the stipulated five-year prison sentence following guilty plea to robbery (Pen. Code, § 211)“of a new attorney and sentenced him to the agreed upon term of five years in prison.” | unclear | correct | agree with court The sentence matched the negotiated disposition (plea to one robbery count, dismissal of the other, stipulated five years), and the plea form contained a factual basis admitting force and fear. A defendant who receives the bargained-for sentence has no arguable sentencing claim, and no certificate of probable cause issue is noted that would permit attack on the plea's validity. |
Award of 81 days of presentence custody credit (71 actual, 10 conduct)“consisting of 71 days of actual custody credit and 10 days of conduct credit.” | unclear | correct | agree with court Robbery is a violent felony under Penal Code section 667.5, subdivision (c)(9), so conduct credit is capped at 15 percent under section 2933.1; 15 percent of 71 days is 10.65, which truncates to 10 days. The award on its face is arithmetically correct, supporting the Wende conclusion of no arguable error. |
Imposition of fines, fees, and assessments ($1,400 restitution fine, stayed $1,400 parole revocation fine, $40 court operations assessment, $30 conviction assessment, $154 criminal justice administrative fee, $39 theft fine)“including a $1,400 restitution fine; a $1,400 parole” | unclear | correct | agree with court The $1,400 restitution fine is consistent with the statutory formula ($280 minimum multiplied by five years), the parole revocation fine properly matches it and is stayed, the $40 and $30 assessments are the mandatory per-count amounts, and the $39 theft fine corresponds to the $10 fine under section 1202.5 plus penalty assessments. Nothing in the opinion suggests an unauthorized fine. |
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 error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request leave to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion follows the required Wende procedure: it recites the facts and procedural history, notes that counsel identified no issues and the defendant declined to file a supplemental brief, and states that independent review found no arguable issues. It is necessarily conclusory, offering no analysis of the Marsden denial, but the sentence, credits, and fines described are facially consistent with the plea and governing statutes, so the affirmance is defensible.
Opinion
Filed 3/25/14 P. v. Mitchell 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, D064828
Plaintiff and Respondent, v. (Super. Ct. No. SCD250081)
ROCKY MITCHELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura W.
Halgren, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Rocky Mitchell pleaded guilty to one count of robbery (Pen. Code, § 211) in exchange for dismissal of a second count of robbery and a stipulated sentence of five years in prison. At the sentencing hearing, the court denied his request for appointment of a new attorney and sentenced him to the agreed upon term of five years in prison.
Against the sentence, the court awarded Mitchell 81 days of presentence custody credit, consisting of 71 days of actual custody credit and 10 days of conduct credit.1 The court also imposed various fines and fees, including a $1,400 restitution fine; a $1,400 parole revocation fine, which the court stayed; a $40 court operations assessment; a $30 criminal conviction assessment; $154 criminal justice administrative fee; and a $39 theft fine.
Mitchell appeals. His appointed appellate counsel filed a brief requesting we independently review the record for error. (See People v. Wende (1979) 25 Cal.3d 436, 441-442.) Having done so and having identified no reasonably arguable appellate issues, we affirm the judgment.
BACKGROUND
On his guilty plea form, Mitchell stated he "unlawfully by means of force [and]
fear took personal property from the person and immediate presence of [the victim]."
According to the probation officer's report, a man and a woman were walking along a road in San Diego when two men armed with handguns approached them and demanded their property. The victims turned over their property. Police officers apprehended Mitchell a short time later. The male victim identified Mitchell as one of the robbers.
1 As part of his plea agreement, the court also sentenced him to a concurrent term of three years in state prison in a separate case. Against this sentence, the court awarded 305 days of presentence custody credit, consisting of 153 days of actual custody credit and 152 days of conduct credit. 2 DISCUSSION Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal and instead requested we review the record for error as mandated by People v. Wende, supra, 25 Cal.3d at pages 441-442.
Counsel did not identify any possible, but not reasonably arguable issues. (See Anders v. California (1967) 386 U.S. 738, 744.)
We granted Mitchell permission to file a supplemental brief on his own behalf.
He did not do so.
As requested by counsel, we reviewed the record for error and did not find any reasonably arguable appellate issues. Mitchell has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
HALLER, J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12