People v. Banks CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD245382
- Trial judge
- Laura W. Halgren
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Cynthia Aaron (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court accepted Banks's guilty plea to possession of marijuana for sale, suspended imposition of sentence, and placed him on three years' formal probation. The Court of Appeal affirmed the judgment after an independent review of the record under People v. Wende found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of guilty plea and suspension of sentence for probation“A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue.” | de novo | not reached | agree with court The court did not apply a specific standard of review to the trial court's rulings because it determined, under the Wende/Anders procedure, that no reasonably arguable issues existed in the record to warrant reversal. The court affirmed the judgment based on the absence of error rather than a substantive analysis of the plea's validity or the probation term. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying potential issues and invites the court to independently review the record for error when counsel finds no arguable issues.
- 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 an independent court review.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing an appeal where counsel identifies no arguable issues. It relies on the correct authorities to justify the independent review and the subsequent affirmation.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Banks's guilty plea to possessing marijuana for sale (Health & Saf. Code, § 11359), dismissed the remaining count and prior-prison-term allegation per the plea agreement, suspended imposition of sentence, placed him on three years' formal probation, and awarded 386 days of presentence credit. On a Wende/Anders appeal in which appointed counsel raised no arguable issue and Banks filed no supplemental brief, the Court of Appeal independently reviewed the record, found no reasonably arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction on guilty plea and grant of three-year formal probation (reviewed by independent Wende/Anders record review, including counsel's suggested issues of plea validity, Penal Code § 1192.5 factual basis, and probation term)“A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue.” | unclear | correct | agree with court The opinion follows the required Wende procedure: counsel filed a no-issue brief identifying possible issues, the defendant was given the opportunity to file a supplemental brief and did not, and the court states it independently reviewed the entire record. The recited record shows a negotiated plea for probation, a competency proceeding resolved before the plea, and a disposition consistent with the bargain, so nothing on the face of the opinion suggests arguable error. The court does not discuss standards of review for the sub-issues because no issue was actually argued, which is appropriate in a Wende disposition. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising 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 without merit must file a brief referring to anything in the record that might arguably support the appeal, and the court must then examine the record to decide whether the case is wholly frivolous.
The appellate opinion: sound with gaps — The opinion applies the correct Wende/Anders procedure, recites the facts, procedural history, offense, disposition, and counsel's suggested issues, and states that it independently reviewed the record, which is all that is required for a no-issue affirmance. A minor gap is that the court notes Banks's blank certificate-of-probable-cause request was never ruled on but does not observe that, absent a certificate, the plea-validity issue counsel flagged would not be cognizable under Penal Code section 1237.5 in any event; this does not affect the result.
Opinion
Filed 4/16/14 P. v. Banks 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, D064573
Plaintiff and Respondent, v. (Super. Ct. No. SCD245382)
NAKIA TROY BANKS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura W.
Halgren, Judge. Affirmed.
Appellate Defenders, Inc., and Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. I.
INTRODUCTION
Nakia Troy Banks pled guilty to one count of possessing marijuana for sale (Health and Saf. Code, § 11359)1 (count 1). At sentencing, the trial court suspended imposition of sentence and placed Banks on formal probation for three years.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, the People filed a complaint against Banks alleging one count of possessing marijuana for sale (§ 11359) (count 1) and one count of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) (count 2). The People further alleged that Banks had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
In February 2013, the trial court expressed a doubt as to Banks's competence, suspended proceedings pursuant to Penal Code section 1368, and committed Banks to a 1 All subsequent statutory references are to the Health and Safety Code, unless otherwise specified. 2 state hospital. Approximately six months later, the court found Banks competent and reinstated criminal proceedings.
On August 12, 2013, Banks entered into a plea agreement with the People. In exchange for his plea of guilty to count one, the People agreed to dismiss the remaining counts and further agreed that Banks would be placed on formal probation. That same day, the trial court held a change of plea hearing, accepted Banks's plea of guilty, and granted the People's motion to dismiss the remaining counts.
In September 2013, the trial court suspended imposition of sentence and placed Banks on formal probation for a three-year term. The court also granted Banks 386 days of presentence credit.
Banks filed a timely notice of appeal.2
III.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but not arguable, issues:
"Is appellant's plea constitutionally valid?"
2 Although Banks filed a signed request for a certificate of probable cause (see Pen. Code, § 1237.5), his request did not contain any text, and the trial court did not rule on the request. 3 "Did the trial court comply with its duty under Penal Code section 1192.5 to establish a sufficient factual basis for the guilty plea?"
"Did the trial court abuse its discretion by suspending imposition of sentence and ordering appellant to serve a three-year . . . probation term?"
After this court received counsel's brief, we provided Banks with the opportunity to file a supplemental brief. Banks did not file a supplemental brief.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. Banks has been adequately represented by counsel on this appeal.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12