People v. Lopez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD246947
- Trial judge
- Louis R. Hanoian
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, McINTYRE
Analysis
The trial court convicted Hugo M. Lopez of three counts of child molestation and sentenced him to 10 years in prison. 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 |
|---|---|---|---|
Admission of prior sexual misconduct evidence under Evidence Code section 1108“Was the testimony of G.L. properly admitted pursuant to Evidence Code section 1108?” | unclear | not reached | unsure The opinion identifies this as a potential issue raised by appellate counsel but explicitly states that the court reviewed the record and found no reasonably arguable issue for reversal. The court does not provide specific reasoning or apply a standard of review to this specific ruling, treating it as part of the general Wende review. |
Prosecutorial misconduct regarding vouching for credibility and seeking sympathy“Did the prosecutor commit misconduct by improperly vouching for C.G.'s credibility and impermissibly seeking sympathy for her?” | unclear | not reached | unsure Similar to the first issue, this was identified by counsel as a possible but not reasonably arguable issue. The court’s disposition relies on the general statement that no reasonably arguable issues were found after reviewing the entire record, without specific analysis of the misconduct claim. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying any reasonably arguable issues and mandates the court to independently review the record for error if no issues are found.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation on appeal by filing a brief identifying potential issues for the court's independent review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing appeals where appointed counsel finds no arguable issues. However, it provides no substantive legal analysis for the specific issues raised by counsel, relying solely on the general conclusion that no errors were found.
How this analysis was made · dispute it
unusual dispositionA San Diego jury convicted Hugo Lopez of three counts of lewd acts on a child (Pen. Code, § 288, subd. (a)) with findings of substantial sexual conduct, and the trial court imposed a determinate 10-year prison term. On appeal, appointed counsel filed a Wende/Anders brief identifying two possible issues (admission of Evidence Code section 1108 propensity evidence and alleged prosecutorial vouching), Lopez 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 10-year sentence, reviewed under the independent Wende/Anders record-review procedure“We have reviewed the entire record and have not discovered any reasonably arguable issue for reversal on appeal.” | unclear | correct | agree with court The opinion follows the required Wende procedure: counsel filed a no-issues brief, the defendant was invited to file his own brief and did not, and the court states it reviewed the entire record. The opinion contains the facts and procedural history, satisfying the form requirements for a Wende disposition. Nothing in the recited facts (direct victim testimony, DNA consistent with Lopez in the victim's underwear) suggests an arguable issue, but the opinion gives no substantive analysis, so agreement rests on the procedure having been correctly followed rather than on any reviewable reasoning. |
Admission of G.L.'s testimony as propensity evidence under Evidence Code section 1108 (Anders issue No. 1)“1. Was the testimony of G.L. properly admitted pursuant to Evidence Code section 1108?” | unclear | correct | unsure Admission of section 1108 evidence is ordinarily reviewed for abuse of discretion after Evidence Code section 352 balancing, but the opinion does not state the standard or discuss the ruling; it simply lists the issue and concludes no arguable issue exists. The described prior conduct (sexual harassment of a 14-year-old) is of a kind commonly admitted under section 1108, but without the trial court's section 352 analysis or the details of G.L.'s testimony in the opinion, I cannot independently confirm the ruling was correct. |
Implicit rejection of claim that the prosecutor committed misconduct by vouching for C.G.'s credibility and appealing to sympathy (Anders issue No. 2)“2. Did the prosecutor commit misconduct by improperly vouching for C.G.'s credibility and impermissibly seeking sympathy for her?” | unclear | correct | unsure The opinion does not describe the challenged remarks, whether an objection was made, or whether any admonition was requested, all of which would bear on forfeiture and prejudice. The court's conclusion that the issue is not reasonably arguable is plausible given the strength of the evidence, but the opinion supplies no facts from which I can evaluate it. |
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 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, accompanied by a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion correctly follows the Wende/Anders procedure, recites the facts and procedural history, notes the defendant's opportunity to file his own brief, and states that the entire record was reviewed, which is all that is required for a no-issue affirmance. Because it offers no analysis of the two Anders issues, it cannot be evaluated on the merits beyond confirming the procedure was properly applied.
Opinion
Filed 11/6/14 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, D065379
Plaintiff and Respondent, v. (Super. Ct. No. SCD246947)
HUGO M. LOPEZ, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
A jury convicted Hugo M. Lopez of three counts of child molestation (Pen. Code,1 § 288, subd. (a)). The jury found the crimes all involved substantial sexual conduct 1 All further statutory references are to the Penal Code unless otherwise specified. within the meaning of section 1203.066, subdivision (a)(8). The court sentenced Lopez to a determinate term of 10 years in prison.
Lopez filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating he has not discovered any reasonably arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel has identified possible, but not reasonably arguable issues for the court's consideration.
We offered Lopez the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
In March of 2013, the victim, C.G. lived with her parents in a complex near her paternal grandparents. Lopez was her grandfather.
On March 19, 2013, C.G.'s grandmother picked her up from school so she could babysit C.G. The grandmother left C.G. in the bedroom and was away from the home for 15 to 20 minutes.
While the grandmother was gone, Lopez entered the bedroom, removed his clothes and then removed C.G.'s clothes. He thereafter got on top of her and placed his penis in or against C.G.'s vagina.
Lopez had engaged in the same conduct on two other occasions, but had his clothes on at those times.
2 The prosecution introduced evidence under Evidence Code section 1108, from G.L. She testified that when she was 14, Lopez frequently sexually harassed her as she traveled to and from school.
DNA consistent with that of Lopez was found in C.G.'s underpants. One sperm cell was found in C.G.'s underpants, however it was not possible to determine the source of the sperm cell.
DISCUSSION
As we have noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436 requesting this court review the record for error. Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the following possible, but not reasonably arguable issues to assist the court in its review:
1. Was the testimony of G.L. properly admitted pursuant to Evidence Code section 1108?
2. Did the prosecutor commit misconduct by improperly vouching for C.G.'s credibility and impermissibly seeking sympathy for her?
We have reviewed the entire record and have not discovered any reasonably arguable issue for reversal on appeal. Lopez has been represented by competent counsel on this appeal.
3 DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
McINTYRE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12