People v. Henderson CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD223424SCD239086
- Trial judge
- Laura W. Halgren
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Cynthia Aaron (author), Alex C. McDonald, Joan K. Irion
Analysis
The trial court revoked probation in two cases and imposed a previously stayed eight-year prison sentence after the defendant admitted to violating probation conditions. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende, finding no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and imposition of previously stayed sentence“The trial court revoked probation in case Nos. SCD223424 and SCD239086. At sentencing on August 7, the trial court imposed the previously stayed eight-year sentence in SCD239086, and terminated probation in case No. SCD223424.” | de novo | not reached | unsure The court did not review the merits of the trial court's decision because the appeal was handled under the Wende/Anders procedure, where counsel found no arguable issues and the court's independent review confirmed the absence of error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to file a brief identifying potential issues and inviting the court to independently review the record for error when no arguable issues are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to notify the court and defendant of the intention to withdraw, allowing the court to independently review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing an appeal where appointed counsel finds no arguable issues. The court explicitly states it independently reviewed the entire record and found no reasonably arguable appellate issues, which is the required standard for affirming in such cases.
How this analysis was made · dispute it
unusual dispositionThe trial court, after Henderson admitted violating probation in two cases in exchange for dismissal of a new drug case, revoked probation, imposed the previously suspended eight-year prison sentence in case No. SCD239086, and terminated probation in case No. SCD223424. On appeal, appointed counsel filed a Wende brief identifying three possible issues, Henderson filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and imposition of the previously stayed eight-year sentence in case No. SCD239086, with termination of probation in case No. SCD223424“At sentencing on August 7, the trial court imposed the previously stayed eight-year sentence in SCD239086, and terminated probation in case No. SCD223424.” | unclear | correct | agree with court When execution of a sentence has been suspended and probation is later revoked, the court must order the previously imposed sentence into effect, and the eight-year term matched both the 2012 plea bargain and the prosecutor's stated consequence of the 2013 admission; terminating probation in the older case rather than imposing the seven-year term was favorable to Henderson. Nothing in the record described suggests sentencing error. |
Acceptance of Henderson's admission of the probation violation without eliciting express waivers of constitutional rights (counsel's second Anders issue)“Was the trial court required to elicit from appellant waivers of his constitutional rights prior to accepting his admission of the probation violation?” | unclear | correct | agree with court Probation revocation proceedings carry reduced due process protections compared with trial and plea proceedings, and California courts have not required full Boykin/Tahl advisements and waivers before accepting an admission of a probation violation; the admission here was negotiated in exchange for dismissal of a new case, further undercutting any claim of prejudice. |
Sufficiency of notice of the claimed probation violation in case No. SCD223424 (counsel's first Anders issue)“Did appellant receive sufficient notice of the claimed probation violation in case SCD223424?” | unclear | correct | agree with court Although the March 2013 rearrest report is described as filed only in SCD239086, Henderson admitted the violation in both cases as part of a negotiated disposition, which forfeits any notice objection, and the trial court ultimately terminated probation in SCD223424 without imposing the suspended seven-year term, so no prejudice 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 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 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 Wende/Anders procedure, sets out the procedural history and the possible issues counsel identified, confirms the defendant was given a chance to file a supplemental brief, and reports an independent record review disclosing no arguable issue. Given the negotiated admissions and the sentence matching the plea agreement, the affirmance is well supported by the record described.
Opinion
Filed 5/14/14 P. v. Henderson 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, D064604
Plaintiff and Respondent, v. (Super. Ct. Nos. SCD223424 & SCD239086) ANTOINE D. HENDERSON, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura W.
Halgren, Judge. Affirmed.
Jill Marnie Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Appellant Antoine D. Henderson admitted having violated the conditions of his probation with respect to two prior cases. The trial court imposed a previously stayed sentence of eight years in prison with respect to one of the cases, and revoked probation as to the other.
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 2009, Henderson was charged with unlawfully selling marijuana (Health & Saf.
Code, § 11360, subd. (a))1 and unlawfully possessing marijuana (§ 11359) in superior court case No. SCD223424. The information also alleged that Henderson had suffered four prison priors (Pen. Code, §§ 667.5, subd. (b), 668) and a prior serious or violent felony (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12). In 2010, Henderson entered a "plea to the sheet." At sentencing, the trial court struck the prior strike allegation and sentenced Henderson to the middle term of three years on count 1, plus one year for each of the four prior prison allegations, for a total of seven years. The trial court imposed the middle term on count 2, which the court stayed pursuant to section 654. The trial court 1 Further statutory references are to the Health and Safety Code unless otherwise specified. 2 suspended execution of the sentence and placed Henderson on formal probation for a period of three years.
In September 2010, the San Diego County probation department filed a report of rearrest, based on Henderson's possession of a controlled substance and his failure to submit a valid sample for testing for use of controlled substances. Approximately a month later, Henderson admitted that he had violated the conditions of his probation.
The trial court revoked, modified, and reinstated probation. Henderson agreed to waive past, present and future presentence custody credits.
In March 2012, Henderson was charged with one count of possessing methamphetamine (§ 11377, subd. (a)); one count of possessing methamphetamine for sale, while armed with a handgun (§ 11378; Pen. Code, § 12022, subd. (c)); one count of unlawfully possessing methamphetamine while armed with a loaded firearm (§ 11370.1, subd. (a)); and one count of unlawfully carrying a loaded firearm (Pen. Code, § 25850, subd. (a)) in case No. SCD239086. As to the charge of possessing methamphetamine for sale, the information also alleged that Henderson had suffered two prior violations of section 11379. The information further alleged that Henderson had suffered four prison priors (Pen. Code, §§ 667.5, subd. (b), 668) and a prior strike offense (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The four new charges in case No. SCD239086 all arose out of an incident that occurred on February 6, 2012.
In that case, Henderson agreed to plead guilty to one count of transporting methamphetamine in violation of section 11379, subdivision (a) (which was added to 3 charges by amendment)), and also agreed to admit to having suffered two prior section 11379 convictions, within the meaning of section 11370.2, subdivision (a), in exchange for dismissal of the remaining counts and allegations and an agreed upon sentence of eight years in prison, to be stayed.
After having found Henderson ineligible for drug court, in July 2012, the trial court sentenced Henderson to the low term of 2 years, plus an additional three years each for the two prior violations of section 11379 allegations, for a total term of eight years.
The trial court suspended execution of the sentence and placed Henderson on formal probation for three years.
In November 2012, probation reports filed in both Nos. SCD223424 and SCD239086 alleged that Henderson had violated the terms and conditions of his probation by failing to report to his probation officer as directed. In February 2013, Henderson admitted the probation violation, acknowledging that he had failed to remain in contact with his probation officers. The trial court revoked and reinstated probation in both cases.
The probation department filed a report of rearrest on March 18, 2013, in case No.
SCD239086. The report alleged that Henderson had violated probation by failing to remain law abiding, failing to submit his person or property to a search, and failing to report any change of address or employment to his probation officer. The report further alleged that on March 6, 2013, Henderson had been booked into the county jail and charged with transporting or furnishing a controlled substance, in violation of section 4 11379, subdivision (a); possessing a controlled substance for sale, in violation of section 11378; and possessing a controlled substance, in violation of section 11377, subdivision (a).
On May 6, 2013, Henderson admitted violating probation in case Nos.
SCD223424 and SCD239086, in exchange for the dismissal of his most recent case (case No. SCD246722). At that time, the prosecutor stated, "The consequence of all this . . . is that [Henderson] will be sentenced to eight years in state prison." The trial court revoked probation in case Nos. SCD223424 and SCD239086. At sentencing on August 7, the trial court imposed the previously stayed eight-year sentence in SCD239086, and terminated probation in case No. SCD223424.
Henderson filed a timely notice of appeal in case Nos. SCD223424 and SCD239086.
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:
(1) "Did appellant receive sufficient notice of the claimed probation violation in case SCD223424?"
5 (2) "Was the trial court required to elicit from appellant waivers of his constitutional rights prior to accepting his admission of the probation violation?"
(3) "Was appellant properly sentenced in accordance with the plea agreement?"
After this court received counsel's brief, we gave Henderson an opportunity to file a supplemental brief. He did not do so.
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. Henderson has been adequately represented by counsel on this appeal.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12