People v. Francisco CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD247415
- Trial judge
- Dwayne K. Morning
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Gilbert Nares, Patricia D. Benke
Analysis
The trial court accepted Francisco's guilty plea to 14 counts of lewd acts on a child and sentenced him to 35 years in prison. The Court of Appeal affirmed the judgment after an independent review of the record found no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment following guilty plea and sentence“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.” | de novo | not reached | agree with court The court conducted an independent review of the record pursuant to People v. Wende and Anders v. California, finding no reasonably arguable appellate issues. The court specifically noted that the potential statute of limitations issue identified by counsel was not arguable, leading to an affirmance of the judgment. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential but non-arguable issues and inviting the court to review the record.
The appellate opinion: sound — The opinion is procedurally sound as it strictly follows the Wende/Anders protocol for reviewing a record where counsel identifies no arguable issues. The court explicitly addresses the one potential issue raised by counsel (statute of limitations) and concludes it is not arguable, satisfying the requirement for independent review.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Francisco's guilty plea to 14 counts of lewd acts on a child under 14 and one attempt count, with admitted substantial-sexual-conduct allegations, and sentenced him to the agreed maximum of 35 years in prison with fines and restitution. On appeal, appointed counsel filed a Wende brief identifying only a possible statute-of-limitations issue, Francisco 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 |
|---|---|---|---|
Judgment of conviction and 35-year sentence entered on guilty plea, reviewed under Wende/Anders independent review of the record“A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue.” | unclear | correct | agree with court The court followed the required Wende/Anders procedure: counsel filed a no-issue brief, the defendant was invited to file a supplemental brief and did not, and the court states it independently reviewed the entire record. The plea was to the maximum term expressly contemplated in the plea form (35 years), the sentence matched that term, and the plea form recited a factual basis. Nothing in the opinion suggests any defect in the plea or sentence, so affirmance is consistent with the authorities cited. |
Counsel's suggested issue whether counts 1 through 14 were barred by the statute of limitations, found not reasonably arguable“counsel identified as a possible but not arguable issue whether counts 1 through 14 were barred by the statue of limitations.” | unclear | correct | unsure The opinion gives no analysis of the limitations question, which is typical of a Wende disposition, and the recited facts (offenses against minors between 2004 and 2011, charged in 2013) do not on their face show a time bar given the extended limitations periods for Penal Code section 288 offenses against minors. Without more in the opinion about the charging dates or tolling provisions, I cannot identify a specific error, but I also cannot independently verify the conclusion from the opinion alone. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record for arguable 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, but must file a brief referring to anything in the record that might arguably support the appeal, and the court must then independently examine the record.
The appellate opinion: sound with gaps — The opinion correctly follows the Wende/Anders procedure, describes the facts and the issue counsel identified, invites a supplemental brief, and states that independent review disclosed no arguable issue. It contains no analysis of the statute-of-limitations question counsel flagged, which is permissible in a Wende disposition but leaves the reader unable to verify the conclusion from the opinion itself.
Opinion
Filed 9/17/14 P. v. Francisco 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, D064818
Plaintiff and Respondent, v. (Super. Ct. No. SCD247415)
REGINALD VILLALUZ FRANCISCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Morning, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
Reginald Villaluz Francisco appeals from the judgment following his guilty plea.
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). Francisco has not responded to our invitation to file a supplemental brief. 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.
I
FACTUAL AND PROCEDURAL BACKGROUND
In July 2013, Francisco was charged in an amended complaint with 14 counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), including allegations for each count that Francisco committed an offense against more than one victim (id., § 667.61 subds. (b), (c), (e)) and that he had substantial sexual conduct with the victim in counts 1 through 12 (id., § 1203.066, subd. (a)(8)). Francisco was also charged with one count of attempting to commit a lewd action upon a child under the age of 14. (Id., §§ 288, subd. (a), 664.) The crimes involved two different victims and took place between 2004 and 2011.
Francisco pled guilty to each of the counts and admitted the allegations of substantial sexual contact for counts 1 through 12, with the express understanding that he could receive a maximum term of 35 years in prison as well as pay fines and restitution.
The People dismissed the balance of the complaint. The written plea form contained Francisco's description of the factual basis for his plea, tracking the substance of the counts alleged against him.
The trial court sentenced Francisco to prison for a term of 35 years and ordered Francisco to pay fines and restitution. Francisco filed a notice of appeal.
2 II
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 as a possible but not arguable issue whether counts 1 through 14 were barred by the statue of limitations.
After we received counsel's brief, we gave Francisco an opportunity to file a supplemental brief, but Francisco did not respond.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue. Francisco has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12