People v. Lopez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS258962
- Trial judge
- Alvin E. Green Jr.
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith L. Haller (author), Judith D. McConnell, O'Rourke
Analysis
The trial court accepted Lopez's guilty pleas to multiple DUI and traffic offenses, imposing a suspended two-year prison sentence and probation for the felonies and time-served sentences for the misdemeanors. On appeal, appointed counsel filed a Wende/Anders brief finding no arguable issues, and the Court of Appeal affirmed the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the judgment following a Wende/Anders review“A review of the record pursuant to People v. Wende, supra, 25 Cal. 3d 436 and Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.” | de novo | not reached | agree with court The appellate court applied the standard Wende/Anders review, examining the record for any reasonably arguable issues. Finding none, the court affirmed the judgment. This is the standard procedure for appointed counsel who finds no merit in an appeal. |
Correction of clerical error in probation order“Counsel correctly points out that the probation order is inaccurate because it reflects that the court suspended imposition of sentence, when, in fact, the transcript of the sentencing hearing clearly reflects that the court imposed a prison sentence of two years, but suspended execution of that sentence pending successful completion of probation.” | unclear | not reached | agree with court The court noted a clerical error in the probation order regarding the distinction between suspending imposition and suspending execution of the sentence. The court presumed the trial court had corrected this error, as it was not raised as a substantive issue on appeal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to 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, or to request permission to withdraw if none exist, while the court independently reviews the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for appointed counsel. It accurately identifies the lack of arguable issues and notes the clerical error without needing to address substantive legal arguments.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Karla Maria Lopez's guilty pleas to two felony DUI counts (with prior-conviction and high-BAC admissions) and two misdemeanors, imposed a two-year middle term with execution suspended, granted five years of formal probation with 270 days custody, stayed count 2 under Penal Code section 654, and imposed fines and victim restitution. On appeal, appointed counsel filed a Wende/Anders brief, Lopez filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issue, noted a clerical error in the probation order it presumed had been corrected, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and sentence entered on guilty pleas (two-year term, execution suspended, five years formal probation, count 2 stayed under Pen. Code § 654, fines and restitution)“A review of the record pursuant to People v. Wende, supra, 25 Cal. 3d 436 and Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.” | de novo | correct | agree with court The court conducted the independent record review Wende and Anders require after counsel identified no issues and the defendant declined to file a supplemental brief. The opinion recites the counts, admissions, sentence, and facts, which show a factual basis for the pleas and a sentence within statutory limits; nothing in the summarized record suggests an arguable error, and following a guilty plea without a certificate of probable cause the scope of cognizable issues is narrow in any event. The opinion does not describe the plea colloquy or the fine computation in detail, so the conclusion cannot be independently verified beyond what is recited. |
Written probation order reciting suspension of imposition of sentence rather than suspension of execution of an imposed two-year term“We presume the court has corrected this clerical error.” | unclear | error (procedure) | agree with court The court correctly identified a clerical discrepancy between the oral pronouncement (two-year term imposed, execution suspended) and the written order (imposition suspended); the oral pronouncement controls. The discrepancy matters because on a probation violation a suspended-execution sentence must be executed as imposed, whereas suspended imposition leaves sentencing open. Rather than presuming the superior court acted on counsel's letter, the appellate court could and ordinarily would have directed correction of the record itself under People v. Mitchell; the characterization is right but the disposition leaves the fix unverified. |
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 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, after which the court decides whether the appeal is frivolous.
- missed: People v. Mitchell (2001) 26 Cal.4th 181 — The oral pronouncement of judgment controls over a conflicting clerical record, and an appellate court may on its own motion order the trial court to correct clerical errors in the abstract of judgment or similar records rather than leaving the discrepancy unresolved.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, recites the charges, pleas, sentence, and facts, confirms the defendant was given the chance to file her own brief, and reaches a defensible affirmance. It identifies a genuine clerical error in the probation order but merely presumes the superior court corrected it instead of directing correction as appellate courts routinely do under Mitchell, leaving a loose end on an issue that could matter at any future probation-violation sentencing.
Opinion
Filed 10/7/14 P. v. Lopez 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, D064885
Plaintiff and Respondent, v. (Super. Ct. No. SCS258962)
KARLA MARIA LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Alvin E.
Green, Jr., Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
Karla Maria Lopez was charged in an information and pled guilty to two felony counts: (1) driving under the influence of alcohol, with admissions of a 0.15 percent or more blood alcohol concentration and three separate driving under the influence violations within 10 years (count 1, Veh. Code,1 §§ 23152, subd. (a), 23626, 23550, subd. (a), 23578); and (2) driving while having a measurable blood alcohol level with admissions as set forth in count 1 (count 2, § 23152, subd. (b)). She also pled guilty to two misdemeanor counts: (1) hit-and-run driving (count 3, § 20002, subd. (a)); and (2)
driving with a suspended license (count 4, § 14601.2, subd. (a)).
For count 1, the court sentenced appellant to a two-year middle term in prison, but suspended execution of the sentence. The court granted five years of formal probation, including 270 days in custody that could be served in work furlough. The court stayed the sentence for count 2. (Pen. Code, § 654.) As to the two misdemeanor counts, the court denied probation and sentenced appellant to time served in custody. The court also imposed various fines and ordered restitution to the victim of the hit and run.
FACTUAL BACKGROUND
On August 11, 2012, at about 1:30 p.m. appellant was observed by a fellow driver on Olympic Parkway in Chula Vista driving "really, really fast," "fishtailing" and swerving back and forth across the white lines dividing separate lanes of traffic.
Appellant then side-swiped another car and maneuvered her car to the side of the road.
When the driver who had been hit pulled up behind appellant, she drove away. The driver called 911 and relayed the appellant's license plate number. A few hours later the police located appellant and arrested her. At about 4:15 p.m., a breathalyzer test 1 Subsequent unspecified statutory references are to the Vehicle Code. 2 measured appellant's blood alcohol content at 0.179 and 0.176. A certified copy of appellant's Department of Motor Vehicles record reflected three prior convictions for driving under the influence and that her driving privileges had been suspended.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below.
Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738.2 We granted Lopez permission to file a brief on her own behalf and she has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal. 3d 436 and Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Lopez on this appeal.
2 On April 29, 2014, appellate counsel wrote a letter to the superior court asking the court to correct a clerical error in the probation order. Counsel correctly points out that the probation order is inaccurate because it reflects that the court suspended imposition of sentence, when, in fact, the transcript of the sentencing hearing clearly reflects that the court imposed a prison sentence of two years, but suspended execution of that sentence pending successful completion of probation. We presume the court has corrected this clerical error. 3 DISPOSITION The judgment is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12