People v. Smith CA4/1

California Court of Appeal · D064769 · 2014-08-20 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD246614
Trial judge: Melinda J. Lasater
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Gilbert Nares (author), Judith D. McConnell, Joan K. Irion

Analysis

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A jury convicted Martel Jamar Smith of second degree robbery, and the trial court imposed but suspended execution of a five-year upper-term sentence and placed him on five years' probation with conditions and a $39 theft fine. On appeal, appointed counsel filed a Wende/Anders brief identifying five possible issues, Smith filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Judgment of conviction and sentence as a whole (Wende/Anders independent review of the record) “issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.”	unclear	correct	unsure The court followed the Wende/Anders procedure: counsel filed a no-issue brief, the defendant was invited to file his own brief and did not, and the court states it reviewed the entire record including the Anders issues. The opinion recites facts and procedural history as required for a Wende affirmance. Nothing in the recited record suggests an overlooked arguable issue, but the opinion contains no analysis of the individual issues, so the conclusion cannot be independently verified from the opinion alone.
Admission of exhibit 13 (Facebook photograph of Smith with a semiautomatic firearm in his waistband) “mentions as possible, but not arguable, issues, whether the court erred by: (1) admitting”	unclear	correct	agree with court The victim described the robber lifting his shirt to display a black, squarish, Glock-like gun at his waistline; a photograph of Smith with a semiautomatic firearm in his waistband is directly probative of identity and corroborates the victim's account, so its admission over an Evidence Code section 352 objection would be well within the trial court's discretion. The opinion gives no analysis, but the facts it recites support the conclusion that the issue is not arguable.
Failure to find prejudicial jury misconduct “exhibit 13; (2) failing to find prejudicial jury misconduct; (3) failing to state reasons for”	unclear	correct	unsure The opinion states no facts about the alleged misconduct, the trial court's inquiry, or any finding, so there is no basis in the opinion to evaluate whether the issue was properly deemed non-arguable.
Failure to state reasons for selecting the upper term “choosing the upper term; (4) imposing a probation condition restricting Smith from”	unclear	correct	unsure Penal Code section 1170, subdivision (c) requires the court to state reasons for its sentence choice, but a failure to do so is forfeited absent objection at sentencing and is often harmless where aggravating factors (here, use of a firearm pointed at a minor victim's face) are apparent. The opinion does not say whether reasons were stated or whether an objection was made, so the court's conclusion cannot be checked from the opinion.
Probation condition prohibiting knowing association with members of the West Coast Crips gang “knowingly associating with members of the West Coast Crips gang; and (5) imposing a”	unclear	correct	agree with court As described, the condition contains an express knowledge requirement, which addresses the vagueness and overbreadth concern that typically makes gang-association conditions arguable. Whether the condition is reasonably related to the offense or to future criminality cannot be determined from the opinion, but the knowledge element supports the conclusion that the issue is not arguable.
Imposition of a $39 theft fine under Penal Code section 1202.5, subdivision (a) without an ability-to-pay finding “$39 theft fine (Pen. Code, § 1202.5, subd. (a)) without finding Smith had the ability to”	unclear	correct	unsure Section 1202.5 directs the court to consider ability to pay, but an express finding is not required and a challenge to the absence of an ability-to-pay determination for such a fine is generally forfeited if not raised at sentencing. The opinion does not disclose whether an objection was made or what the record shows about Smith's finances, so the conclusion cannot be independently confirmed.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may so advise the court and identify anything in the record that might arguably support the appeal, after which the court conducts its own examination of the record.

The appellate opinion: sound — The opinion properly follows the Wende/Anders procedure: it recites the facts and procedural history, notes that the defendant was given the opportunity to file his own brief and did not, lists the issues counsel flagged, and states that independent review disclosed no arguable issue. Because a Wende affirmance does not require discussion of each potential issue and no arguments were presented for the court to answer, the opinion is sound for what it is, though its brevity means the individual rulings cannot be evaluated from the opinion alone.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 8/20/14 P. v. Smith 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, D064769

Plaintiff and Respondent, v. (Super. Ct. No. SCD246614)

MARTEL JAMAR SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.

Lasater, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury found Martel Jamar Smith guilty of second degree robbery (Pen. Code, § 211). The court suspended execution of a five-year upper prison term sentence and placed Smith on five years' probation. Smith appeals. We affirm. BACKGROUND On February 19, 2013, Alex T. was walking to school, carrying his iPhone. A beige or gold Infiniti followed him then stopped and Smith, the driver, asked for directions. After Alex provided directions, Smith circled in the Infiniti, drove past Alex three or four times, then slowly drove up behind Alex and stopped beside him. Smith got out of the Infiniti, ran toward Alex "and asked for all of [Alex's] stuff." Alex said no, turned around and kept walking. Smith grabbed Alex's shoulder and turned him around.

Smith lifted his shirt, displaying a black-handled gun at his waistline, took the gun from his pants, pointed the gun between Alex's eyes and told Alex "to give him everything."

Alex gave Smith his iPhone and wallet. Smith drove away.

Alex ran down the street and found a man who let Alex use his cell phone. Alex called 911 and provided the Infinity's approximate license plate number. The police soon arrived. Alex, who was familiar with guns from playing video games, described Smith's gun as squarish, black and similar to a Glock.

With the license plate number Alex had provided, the police learned that a gold Infiniti was registered to Smith. On February 28, 2013, police officers executed a search warrant at an address associated with the Infiniti's registration. While the officers were conducting the search, Smith arrived in a gold four-door Infiniti whose license plate number matched the one Alex had provided. The officers searched the Infiniti pursuant to a warrant and found an iPhone. Smith said the phone was his. An officer activated the Facebook application on the phone and Smith's Facebook page appeared. The Facebook page contained over 100 photographs of Smith, including four with a gun. In one of the 2 four photographs, exhibit 13, Smith had an iPhone with a photograph on its screen of Smith taking his own photograph, in front of a mirror, with a semiautomatic firearm in his waistband.

Alex's iPhone was never recovered.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel mentions as possible, but not arguable, issues, whether the court erred by: (1) admitting exhibit 13; (2) failing to find prejudicial jury misconduct; (3) failing to state reasons for choosing the upper term; (4) imposing a probation condition restricting Smith from knowingly associating with members of the West Coast Crips gang; and (5) imposing a $39 theft fine (Pen. Code, § 1202.5, subd. (a)) without finding Smith had the ability to pay.

We granted Smith permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.

Smith has been competently represented by counsel on this appeal.

3 DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

MCCONNELL, P. J.

IRION, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12