People v. Velarde CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD251204
- Trial judge
- Timothy R. Walsh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Richard D. Huffman, Sr., Joan K. Irion
Analysis
The trial court accepted Velarde's guilty plea to possession for sale of methamphetamine and cocaine, including enhancements, and sentenced him to six years in prison. The Court of Appeal affirmed the judgment after an independent review of the record found no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the judgment following a Wende/Anders review“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.” | de novo | not reached | agree with court The court applied the standard Wende/Anders procedure, reviewing the entire record to determine if any arguable issues existed. Finding none, it affirmed the judgment. This is the standard outcome for such appeals where counsel identifies no arguable errors. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record to identify arguable issues when no issues are raised by the defendant.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues, even if none are found, and to request the court to review the record.
The appellate opinion: sound — The opinion is procedurally sound as it follows the established Wende/Anders protocol for reviewing appeals where counsel finds no arguable issues. It correctly states the court's duty to review the entire record and its conclusion that no errors were found.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Velarde's guilty plea to possession for sale of methamphetamine and cocaine with weight enhancements and sentenced him to six years under a negotiated plea that included an appeal waiver. On appeal, counsel filed a Wende/Anders brief, Velarde filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of guilty plea and admission of enhancements, including validity of the appeal waiver, constitutional validity of the plea, and sufficiency of the factual basis“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.” | unclear | correct | agree with court In a Wende appeal the reviewing court independently examines the record for arguable issues; the opinion recites that it did so and identifies the three Anders issues flagged by counsel. The recited facts (drugs found in the spare tire at the port of entry) supply a factual basis, and the negotiated sentence matches the plea terms, so nothing in the opinion suggests error. The opinion does not discuss whether a certificate of probable cause was obtained, but that omission does not affect the affirmance. |
Imposition of six-year sentence (midterm on count 3 plus three-year enhancement, concurrent five-year term on count 1)“In exchange for the guilty plea, Velarde was sentenced to a total term of six years, consisting of the midterm of three years on count 3, plus three consecutive years for the enhancement” | unclear | correct | agree with court The sentence was the agreed-upon term under the plea bargain, and the components (midterm on each count plus section 11370.4 weight enhancements) are consistent with the statutes cited in the opinion. The Wende review found no arguable sentencing issue, and nothing in the opinion indicates an unauthorized sentence. |
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 issues.
- 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.
The appellate opinion: sound — The opinion follows the standard Wende/Anders procedure, lists the possible issues counsel identified, and states that the court independently reviewed the record and found no arguable issues. It is brief and does not explain its analysis of the appeal waiver or any certificate of probable cause, but a summary affirmance is the accepted form for a no-issue Wende appeal.
Opinion
Filed 12/3/14 P. v. Velarde 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, D065741
Plaintiff and Respondent, v. (Super. Ct. No. SCD251204)
EDUARDO GUTIERREZ VELARDE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed.
Leslie A. Rose, under appointment of the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Eduardo Gutierrez Velarde was charged in a felony complaint with violations of Health and Safety Code1 section 11378 (possession for sale of methamphetamine; count 1), section 11379, subdivision (a) (transportation of 1 All further undesignated statutory references are to the Health and Safety Code. methamphetamine; count 2), section 11351 (possession for sale of cocaine; count 3), and section 11352, subdivision (a) (transportation of cocaine; count 4). As to counts 1 and 2, it was alleged the methamphetamine exceeded 10 kilograms by weight within the meaning of section 11370.4, subdivisions (b)(2) and (b)(3). On counts 3 and 4 it was alleged that the cocaine exceeded 1 kilogram by weight, within the meaning of section 11370.4, subdivision (a)(1).
Velarde thereafter pleaded guilty to counts 1 and 3, and admitted the enhancement as to count 3. The enhancement relating to count 1 was amended to section 11370.4, subdivision (b)(1), and Velarde admitted that enhancement. In exchange for the guilty plea, Velarde was sentenced to a total term of six years, consisting of the midterm of three years on count 3, plus three consecutive years for the enhancement, and the midterm of two years on count 1, plus three years on the enhancement, for a total of five years concurrent to the previously ordered six years. The remaining counts and enhancements were dismissed. As a condition of the plea, Velarde waived his right to appeal.
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. We granted Velarde the opportunity to file a supplemental brief and he has not responded.
2 FACTUAL BACKGROUND
In October 2013 Velarde attempted to enter the United States through the Otay Mesa Port of entry. He was driving a 2004 GMC Yukon. An agent went to the rear of the vehicle and checked the spare tire underneath the cargo area of the vehicle and it felt solid. Velarde was then referred to secondary inspection, where a canine alerted to the spare tire area. The spare tire was removed and the agent found packages containing 5.23 pounds of cocaine and 27.76 pounds of methamphetamine.
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 three possible, but not arguable issues:
1. Was the waiver of the right to appeal valid?
2. Is Velarde's guilty plea constitutionally valid?
3. Was there a sufficient factual basis for the plea?
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 Velarde on this appeal.
3 DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12