People v. Gonzalez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF30111
- Trial judge
- Poli Flores, Jr.
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Gilbert Nares (author), Judith D. McConnell, Cynthia Aaron
Analysis
The trial court accepted a no contest plea from the defendant and imposed a sentence of five years for transportation of a controlled substance, plus enhancements for a prior conviction and a prison prior, and an additional eight-month consecutive sentence for evading an officer. 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.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the judgment following a Wende/Anders review“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, 386 U.S. 738, and have not found any reasonably arguable appellate issues.” | de novo | not reached | agree with court The court applied the standard Wende/Anders review, examining the entire record to determine if any arguable issues existed. It concluded that no such issues were present, thereby affirming the lower court's judgment. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying potential issues and the court to conduct an independent review of the record when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying arguable issues and the court to review the record independently.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a no-contest plea appeal where counsel identifies no arguable issues. The court explicitly states it reviewed the entire record and found no errors, which is the required standard of review in this context.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court accepted Gonzalez's no contest plea to eight counts (evading an officer, hit-and-run with injury, and six drug possession/sale/transportation counts) with admitted priors, and sentenced him to the upper term of five years on the Health and Safety Code section 11352 transportation count plus three years for the section 11370.2 prior, one year for a prison prior, and a consecutive eight months for evading. On appeal, appointed counsel filed a Wende/Anders brief, Gonzalez filed nothing, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of the no contest plea and sufficiency of the factual basis for the plea“On the date set for trial Gonzalez pleaded no contest to each of the eight counts and admitted the prison prior and the prior conviction for transportation of a controlled substance.” | unclear | correct | agree with court The court conducted independent Wende review and found no arguable issue regarding the factual basis. The recited facts (a 90-mile pursuit at over 120 mph with acknowledged awareness of police lights and helicopter, a collision injuring the passenger, flight into Mexico, and Gonzalez's admission that the backpack containing sale-quantity cocaine and methamphetamine and the cash were his) amply support each count, so the conclusion is defensible on the record described. |
Imposition of sentence (upper term on count 5 plus enhancements and consecutive one-third midterm on count 1)“Gonzalez was sentenced to the upper term of five years for the count 5 transportation of a controlled substance, plus three years for the prior conviction for transportation of a controlled substance, plus one year for the prison prior.” | unclear | correct | agree with court The components described match the statutory ranges: five years is the upper term for Health and Safety Code section 11352, three years is the section 11370.2 enhancement, one year is the Penal Code section 667.5(b) enhancement, and eight months is one-third the two-year midterm for Vehicle Code section 2800.2. The opinion does not state how the remaining six counts were disposed of (stayed, concurrent, or otherwise), so the sentence cannot be fully checked, but nothing recited suggests error. |
Whether trial counsel rendered ineffective assistance“1. Was Gonzalez's counsel ineffective?;” | unclear | correct | unsure The court found no arguable ineffective assistance claim after reviewing the record. The opinion recites no facts bearing on counsel's performance, and such claims on direct appeal after a plea are rarely cognizable without a certificate of probable cause and a record showing deficient performance, so the conclusion is plausible but cannot be independently verified from the opinion. |
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 to determine whether any arguable issue exists.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may file a brief identifying anything in the record that might arguably support the appeal, and the court must then examine the record.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure, recites the facts and procedural history, identifies counsel's flagged issues, and states that the entire record was independently reviewed, which supports the affirmance. It does not mention whether a certificate of probable cause was obtained for a post-plea appeal, how the remaining six counts were sentenced, or the discrepancy between three alleged prison priors and the single prison prior admitted and punished, leaving minor gaps in the account of the judgment reviewed.
How this analysis was made · dispute it
record incompleteOpinion
Filed 6/18/14 P. v. Gonzalez 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, D064484
Plaintiff and Respondent, v. (Super. Ct. No. JCF30111)
SERGIO AGUIAR GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed.
Coughlan, Semmer, Fitch & Pott, LLP, and Earll M. Pott, by appointment of the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
Defendant Sergio Aguiar Gonzalez was charged with (1) evading an officer (Veh.
Code, § 2800.2, subd. (a); count 1); (2) leaving the scene of an accident resulting in injury (Veh. Code, § 20001, subd. (a); count 2); (3) possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 3); (4) possession of a controlled substance for sale (Health & Saf. Code, § 11351; count 4); (5) transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 5); (6) possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 6); (7) possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 7); and (8)
transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 8). As to each count, it was further alleged that Gonzalez had suffered three prior convictions resulting in prison commitments under Penal Code section 667.5, subdivision (b). As to count 8, it was alleged that Gonzalez had suffered a prior conviction for transportation of a controlled substance under Health and Safety Code section 11370.2.
subdivision (c). Thereafter, Gonzalez pleaded not guilty to all charges.
On the date set for trial Gonzalez pleaded no contest to each of the eight counts and admitted the prison prior and the prior conviction for transportation of a controlled substance. Gonzalez was sentenced to the upper term of five years for the count 5 transportation of a controlled substance, plus three years for the prior conviction for transportation of a controlled substance, plus one year for the prison prior. He was sentenced to an additional eight-month consecutive sentence, one-third the middle term of two years, for evading an officer.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered Gonzalez the opportunity to file his own brief on appeal but he has not responded.
2 FACTUAL BACKGROUND
On September 1, 2012, a California Highway Patrol officer observed Gonzalez and his passenger, codefendant Jessica Reyes, traveling on Gonzalez's motorcycle at a high rate of speed on Interstate 8 in Imperial County. After confirming with radar that Gonzalez was travelling approximately 85 miles per hour, the officer entered his police cruiser, activated his emergency lights and sirens, and gave chase. Other law enforcement officers, in police cars and a helicopter, joined in the pursuit which lasted over 90 miles and reached speeds in excess of 120 miles per hour.
The chase ended at the Calexico border crossing. Near the conclusion of the chase Gonzalez collided with a police vehicle and Reyes was knocked from the motorcycle.
Gonzalez continued riding the motorcycle until he crashed. He fled into Mexico, where he was apprehended and turned over to law enforcement.
Officers recovered and searched a backpack that Reyes had been wearing during the chase. They recovered four cell phones, over $800 in cash, a fist-sized white powdery substance, later determined to be cocaine, and a yellow, crystalline substance, later determined to be methamphetamine. The phones, amount of cash, and the quantity of drugs recovered were consistent with an intent to sell.
Reyes, who was hospitalized as a result of her injuries, was interviewed by police and denied ownership of the backpack and its contents. She identified Gonzalez as her boyfriend and told police she and Gonzalez had seen the pursuing police car.
Gonzalez was also interviewed. He told police that the backpack was his, but he had only put his shorts in it. He said the cash in the backpack was his, but denied 3 knowledge of the drugs. He also acknowledged seeing the police lights and the helicopter during the chase and estimated he had reached a maximum speed of between 100 and 150 miles per hour. He also told police that when they searched his home in El Cajon, he expected them to find two pounds of methamphetamine, a firearm, and several pounds of marijuana.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies the following possible, but not arguable issues:
1. Was Gonzalez's counsel ineffective?;
2. Was there a sufficient factual basis for the plea?; and 3. Is Gonzalez's sentence unlawful?
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, 386 U.S. 738, and have not found any reasonably arguable appellate issues. Competent counsel has represented Gonzalez on appeal.
4 DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12