People v. Thornton CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. PLV64547
- Trial judge
- Desiree Bruce-Lyle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, Patricia D. Benke
Analysis
The trial court revoked and reinstated Thornton's parole following an evidentiary hearing where he represented himself. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation and reinstatement of parole“The court revoked and reinstated parole subject to 180 days in jail, with credit for 61 days custody.” | unclear | not reached | unsure The appellate court did not apply a specific standard of review to the merits of the parole revocation because it was conducting a Wende review. The court stated it reviewed the entire record and found no reasonably arguable issues for reversal, effectively affirming the trial court's decision without a detailed substantive analysis of the evidence or procedure. |
Self-representation (Pro Per) at hearing“The record shows the court discussed self-representation with him. The court discussed that he had been 'in pro per' previously because the public defender had been disqualified.” | unclear | not reached | agree with court The court considered the appellant's argument regarding whether he should have been readmonished about self-representation. It found that the record showed the trial court had already discussed the issue and determined Thornton wished to represent himself, thereby dismissing the argument as not reasonably arguable. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying any arguable issues and requires the court to independently review the record for error when counsel finds none.
- 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 court review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing appeals where counsel finds no arguable issues. However, it is a 'sound with gaps' opinion because it provides no substantive legal analysis or standard of review for the underlying parole revocation, relying entirely on the absence of arguable issues identified by counsel and the court's own review.
How this analysis was made · dispute it
unusual dispositionThe trial court, after an evidentiary hearing at which Thornton represented himself, found he violated parole by making criminal threats and possessing pills without a prescription, and revoked and reinstated parole on condition of 180 days in jail with 61 days credit. On appeal, counsel filed a Wende/Anders brief, Thornton filed a supplemental brief questioning the lack of a fresh self-representation admonishment, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding by a preponderance of the evidence that Thornton violated parole (criminal threats, vandalism, possession of controlled substance without prescription), with parole revoked and reinstated on condition of 180 days in jail“Whether there is sufficient evidence to meet the prosecution's burden to prove the parole violations by a preponderance of the evidence.” | unclear | correct | agree with court The opinion recites that the complaining witness reported threats to kill her and car damage, and that 34 prescription pills were found on Thornton; that is enough to support a preponderance finding on at least the threats and possession allegations. The court did not articulate a standard of review, instead conducting Wende independent review, and the factual recitation is thin, but nothing in the opinion suggests the finding was unsupported. |
Allowing Thornton to continue self-representation at the revocation hearing without a new full Faretta-type admonishment“The court determined that Thornton continued to wish to represent himself.” | unclear | correct | agree with court The opinion states the trial court discussed self-representation with Thornton, noted he had been in pro per in a recent prior revocation because the public defender was disqualified, and confirmed he still wished to represent himself. On this record a renewed inquiry was made and no authority requires a full readmonishment at a successive hearing shortly after a prior valid waiver; the court's conclusion that the issue is not arguable appears defensible, though the opinion cites no authority on the point. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel files a brief raising 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 no meritorious issues must file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal the court's opinion must address the contentions personally raised by the defendant in a supplemental brief; the court did so in substance here but did not cite Kelly.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent review is required only in a defendant's first appeal of right from a criminal conviction, not in appeals from postjudgment or collateral orders; the court did not address whether Wende review applied to this parole revocation appeal, though conducting the review did not prejudice Thornton.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, addresses the one issue counsel identified and the one Thornton raised, and reaches a defensible affirmance on the facts recited. It does not cite Kelly or confront Serrano's limit on Wende review in postjudgment appeals, and it cites no authority on the self-representation readmonishment question, so the reasoning is thin though the result is not in doubt.
Opinion
Filed 7/29/14 P. v. Thornton 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, D065701
Plaintiff and Respondent, v. (Super. Ct. No. PLV64547)
WILLIAM THORNTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Desiree Bruce-Lyle, Judge. Affirmed.
Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
William Thornton appeals from the decision of the trial court entered March 24, 2014, revoking and reinstating his parole after he had been arrested for making criminal threats and possession of drugs without a prescription. Appellate 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) indicating she is unable to find any arguable issues for reversal on appeal. Counsel requests this court to review the record for error as required by Wende.
FACTS AND PROCEDURAL BACKGROUND
Thornton was arrested on February 21, 2014 for making criminal threats (Pen.
Code, § 422), vandalism (Pen. Code, § 594, subd. (b)(1)), and possession of a controlled substance without a prescription (Health & Saf. Code, § 11375, subd. (b)(2)).
An evidentiary hearing was held on the alleged parole violation on March 24, 2014. Thornton was allowed to continue self-representation as he had done in a parole revocation shortly before this one. The court revoked and reinstated parole subject to 180 days in jail, with credit for 61 days custody.
Thornton filed his notice of appeal from this order on March 27, 2014.
Thornton's arrest stems from a family disturbance on February 21, 2014, to which law enforcement officers were called.
The complaining witness, Shannon Stacey, told authorities that Thornton had threatened her, including threats to kill her. He damaged her car.
Thornton was searched and 34 nonnarcotic, antidepressant pills were found on his person.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, indicating she is unable to find any arguable issues for reversal on appeal and asks this court to review the record for error as mandated by Wende. As required by Anders, supra, 386 U.S. 738, counsel has set forth one possible, but not arguable issue: 2 Whether there is sufficient evidence to meet the prosecution's burden to prove the parole violations by a preponderance of the evidence.
Thornton has filed his own brief on appeal. Thornton's brief is somewhat rambling, but does raise one possible issue which we have considered. That issue is whether he should have been readmonished about self-representation when he appeared for the revocation hearing in this instance. The record shows the court discussed self- representation with him. The court discussed that he had been "in pro per" previously because the public defender had been disqualified. The court determined that Thornton continued to wish to represent himself.
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not discovered any reasonably arguable issues for reversal on appeal. Competent counsel has represented Thornton on this appeal.
DISPOSITION
The order revoking and reinstating parole is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12