People v. Lopez CA4/1

California Court of Appeal · D064790 · 2014-05-01 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD245557
Trial judge: Eugenia Eyherabide
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Joan K. Irion (author), Richard D. Huffman, Sr., O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:41Z · confidence low

The trial court sentenced the defendant to 15 years in prison after he failed to appear for sentencing following a plea agreement that stipulated to this maximum term upon failure to appear. The Court of Appeal affirmed the judgment, finding no arguable issues on independent review under Anders and Wende.

Ruling reviewed	Standard	The court	The model
Denial of Marsden motion for new counsel “At a hearing set for sentencing, the court denied Lopez's motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), but continued the hearing to allow Lopez time to consider a request to withdraw his guilty plea.”	unclear	not reached	unsure The appellate court stated it discerned no arguable appellate issues and did not provide specific analysis for this ruling, relying on the general Wende/Anders review standard.
Imposition of 15-year sentence for failure to appear “One of the terms of the plea agreement was that Lopez would be released from custody pending sentencing, but if he did not appear at the sentencing hearing, the court would impose the maximum prison term of 15 years.”	unclear	not reached	unsure The court affirmed the judgment without addressing the specific argument regarding the adequacy of the warning or the validity of the stipulation, finding no arguable issues.
Imposition of restitution fine “The court also imposed a restitution fine of $2,520 (id., § 1202.4, subd. (b)) and other fines, fees, and penalty assessments.”	unclear	not reached	unsure The court did not analyze the restitution fine calculation or discretion, as it found no arguable issues on independent review.

Authorities

relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying arguable issues when they believe an appeal is frivolous.
relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the appellate court to independently review the record to determine if there are any arguable issues when counsel files a Wende/Anders brief.
relied: People v. Marsden (1970) 2 Cal.3d 118 — Standard for determining whether a defendant is entitled to new counsel due to a breakdown in the attorney-client relationship.
relied: People v. Vargas (1990) 223 Cal.App.3d 1107 — Cited by counsel regarding waiver of rights; the court did not rely on it for its holding but noted it as a suggested issue.

The appellate opinion: sound with gaps — The opinion is procedurally sound in that it follows the required Wende/Anders protocol for independent review. However, it is a 'sound with gaps' opinion because it provides no substantive legal analysis for the six specific issues raised by counsel, merely stating that no arguable issues were discerned without explaining why the trial court's actions were correct.

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

The San Diego Superior Court accepted Adrian Lopez's guilty plea to robbery with an admitted prior serious felony/strike, released him pending sentencing under a plea term that the maximum 15-year sentence would be imposed if he failed to appear, denied his Marsden motion after he failed to appear, and sentenced him to 15 years (upper term doubled plus a five-year section 667(a)(1) enhancement) with a $2,520 restitution fine. On appeal, appointed counsel filed a Wende/Anders brief identifying six possible issues, Lopez filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Acceptance of the guilty plea and admission of the prior conviction (adequacy of advisement of constitutional rights and consequences of the plea) “Lopez pled guilty to robbery (Pen. Code, § 211) and admitted he had a prior robbery conviction, which constituted both a serious felony conviction subject to a five-year enhancement (id., § 667, subd. (a)(1)) and a strike for purposes of the "Three Strikes" law”	unclear	correct	unsure The court conducted a Wende review and found no arguable issue, but the opinion recites nothing about the plea colloquy itself. Lopez also did not move to withdraw the plea despite being given a continuance to consider doing so, and no certificate of probable cause is mentioned, which would independently limit any challenge to plea validity. Without the colloquy in the opinion I cannot verify the result.
Denial of Lopez's Marsden motion at the hearing set for sentencing “At a hearing set for sentencing, the court denied Lopez's motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), but continued the hearing to allow Lopez time to consider a request to withdraw his guilty plea.”	unclear	correct	unsure Marsden denials are reviewed for abuse of discretion, but the opinion neither states that standard nor describes what Lopez complained of or how the trial court inquired. The court's grant of a continuance to let Lopez consider a plea-withdrawal request suggests the trial court was attentive to his concerns, but the opinion provides no basis to independently evaluate the ruling.
Enforcement of the plea term (Cruz/Vargas waiver) imposing the 15-year maximum after Lopez failed to appear for sentencing, including whether he was adequately advised and whether a hearing on willfulness was required “One of the terms of the plea agreement was that Lopez would be released from custody pending sentencing, but if he did not appear at the sentencing hearing, the court would impose the maximum prison term of 15 years.”	unclear	correct	unsure A Cruz waiver embodied in the plea agreement is enforceable if knowingly made, and the increased sentence may be imposed if the failure to appear was willful. The opinion states the term was part of the bargain and that Lopez failed to appear and was arrested on a warrant, but it does not describe the advisement or any express willfulness finding. Lopez was present at two later hearings and did not contest willfulness or seek to withdraw the plea, which supports the conclusion that no arguable issue exists, but the record recited is thin.
Imposition of the 15-year prison sentence: upper term of five years doubled under the Three Strikes law plus five years under section 667(a)(1) “The term consisted of the upper term of five years doubled to 10 years under the Three Strikes law based upon the prior robbery conviction”	unclear	correct	agree with court The arithmetic and statutory bases recited in the opinion are correct: second degree robbery carries a 2-3-5 triad under section 213(a)(2), the upper term of five years is doubled to ten under sections 667(e)(1) and 1170.12(c)(1) for one prior strike, and section 667(a)(1) adds a mandatory consecutive five years for the prior serious felony, totaling 15 years. This matches the maximum term the plea agreement specified for nonappearance.
Imposition of a $2,520 restitution fine under Penal Code section 1202.4, subdivision (b) “The court also imposed a restitution fine of $2,520 (id., § 1202.4, subd. (b)) and other fines, fees, and penalty assessments.”	unclear	correct	agree with court The fine is within the statutory range and $2,520 corresponds to the section 1202.4(b)(2) formula using the 2013 minimum of $280 multiplied by a nine-year term and one count, which is the bargained sentence rather than the longer 15-year term actually imposed. The amount is thus well within the court's discretion and, if anything, favorable to the defendant, so no arguable error appears.

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 lacks merit may file a brief referring to anything in the record that might arguably support the appeal for the court's review.
relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be permitted to state the reasons, and the court must inquire into them before ruling.
relied: People v. Vargas (1990) 223 Cal.App.3d 1107 — A defendant may knowingly waive Cruz rights as part of a plea bargain so that a greater sentence may be imposed if he willfully fails to appear for sentencing.
missed: People v. Cruz (1988) 44 Cal.3d 1247 — Under Penal Code section 1192.5, a defendant who fails to appear for sentencing retains the right to withdraw the plea if the court imposes a greater sentence, unless the defendant knowingly waived that right.
missed: People v. Masloski (2001) 25 Cal.4th 1212 — A Cruz waiver that is part of the plea agreement itself is enforceable, and the court may impose the agreed greater sentence upon the defendant's willful nonappearance without violating section 1192.5.

The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure correctly, recites the facts and procedural history, identifies counsel's six suggested issues, notes that Lopez declined to file a supplemental brief, and the recited sentence computation and restitution fine are consistent with the governing statutes. It does not, however, explain why the 15-year Cruz-waiver sentence was properly imposed without reference to Cruz or Masloski or any express willfulness finding, and it provides no detail on the Marsden inquiry or plea advisements, so the result is defensible but the reasoning is largely conclusory.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 5/1/14 P. v. Lopez 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, D064790

Plaintiff and Respondent, v. (Super. Ct. No. SCD245557)

ADRIAN LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide, Judge. Affirmed.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Adrian Lopez appeals the judgment sentencing him to prison for the agreed 15-year term after he pled guilty to robbery, admitted allegations of a prior serious felony conviction, and did not appear at the scheduled sentencing hearing. Appointed counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende) that identified six issues upon which he requested our independent review. We discern no arguable appellate issues and affirm.

BACKGROUND

Lopez punched a man in the face and stole money the man was holding and his wallet. Lopez pled guilty to robbery (Pen. Code, § 211) and admitted he had a prior robbery conviction, which constituted both a serious felony conviction subject to a five- year enhancement (id., § 667, subd. (a)(1)) and a strike for purposes of the "Three Strikes" law (id., §§ 667, subds. (b)-(i), 1170.12). In exchange, the People agreed to the imposition of a nine-year prison sentence. One of the terms of the plea agreement was that Lopez would be released from custody pending sentencing, but if he did not appear at the sentencing hearing, the court would impose the maximum prison term of 15 years.

Lopez was released from custody and ordered to return on a specified date for sentencing. When he failed to appear, the court issued a warrant for his arrest, and he was taken into custody.

At a hearing set for sentencing, the court denied Lopez's motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), but continued the hearing to allow Lopez time to consider a request to withdraw his guilty plea. At the continued hearing, Lopez did not move to withdraw the plea, and the court sentenced Lopez to prison for 15 years. The term consisted of the upper term of five years doubled to 10 years under the Three Strikes law based upon the prior robbery conviction (Pen. Code, §§ 213, subd. (a)(2), 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus five years for the prior robbery conviction (id., 2 § 667, subd. (a)(1)). The court also imposed a restitution fine of $2,520 (id., § 1202.4, subd. (b)) and other fines, fees, and penalty assessments.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and the proceedings in the trial court. Counsel presented no argument for reversal, but asked 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 suggested the following issues:

(1) "Was appellant properly advised of his constitutional rights and consequences of pleading before entering his guilty plea?"; (2) "Did the trial court err when it denied appellant's Marsden motion?"; (3) "Was appellant adequately informed . . . that he would be sentenced to the maximum sentence of 15 years if he failed to appear at sentencing?";

(4) "Did the trial court correctly impose the stipulated sentence as negotiated in the plea agreement[]?"; (5) "Did the trial court properly exercise its discretion when it imposed $2520 in victim [sic] restitution?"; and (6) "Was appellant entitled to a hearing on whether he willfully violated the terms of the People v. Vargas (1990) 223 Cal.App.3d 1107 waiver?" After we received counsel's brief, we notified Lopez by letter that he could file a supplemental brief, but he did not respond.

We have reviewed the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and considered the issues suggested by counsel, but discerned no reasonably arguable appellate issues. Lopez has been adequately represented by counsel on this appeal.

3 DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

Cites, in this corpus

People v. Vargas B048066 · 1990-09-12
People v. Wende Crim. 20851 · 1979-10-12
People v. Marsden Crim. 14119 · 1970-02-26