People v. Acedo CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS268470
- Trial judge
- Theodore M. Weathers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), O'Rourke, Patricia D. Benke
Analysis
The trial court denied Acedo's motion to withdraw his guilty plea to corporal injury to a cohabitant and affirmed the sentence. 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 |
|---|---|---|---|
Denial of motion to withdraw guilty plea“The court reviewed Acedo's motion, supporting affidavits, and the record transcript, and denied the motion.” | unclear | not reached | unsure The appellate court did not explicitly analyze the trial court's denial of the motion to withdraw the plea under a specific standard of review (such as abuse of discretion). Instead, the court relied on the Wende/Anders procedure to independently review the entire record and concluded that no reasonably arguable appellate issue existed, thereby affirming the judgment without addressing the specific merits of the withdrawal motion. |
Validity of plea bargain under Penal Code section 1192.7, subdivision (a)(2)“A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue.” | de novo | not reached | unsure The court identified the potential issue regarding the legality of the plea bargain under section 1192.7(a)(2) as a possible but not arguable issue. It did not provide a substantive legal analysis of whether the plea violated the statute or if an exception applied, but rather concluded through its independent Wende review that the issue was not reasonably arguable. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying any arguable issues and invites the court to independently review the record for error if no issues are presented.
- 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 potentially arguable issues and allowing the court to review the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound in following the Wende/Anders protocol for reviewing an appeal where appointed counsel presents no argument. However, it is a 'sound with gaps' opinion because it fails to provide any substantive legal analysis or reasoning for why the specific issues raised (plea withdrawal and statutory violation) were not 'reasonably arguable,' leaving the reader without insight into the court's application of the law to the facts.
How this analysis was made · dispute it
unusual dispositionAcedo, representing himself, pleaded guilty to corporal injury to a cohabitant with a weapon allegation for a stipulated two-year term; the trial court later denied his motion to withdraw the plea and his motion for reconsideration (which claimed the bargain violated Penal Code section 1192.7, subdivision (a)(2)), and sentenced him to two years. On appeal, appointed counsel filed a Wende brief, Acedo filed nothing on his own behalf, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to withdraw guilty plea (alleged judicial involvement in plea negotiations and inadequate advisement of consequences)“The court reviewed Acedo's motion, supporting affidavits, and the record transcript, and denied the motion.” | unclear | correct | agree with court The opinion does not state a standard of review; a ruling on a section 1018 motion to withdraw a plea is ordinarily reviewed for abuse of discretion, with the defendant bearing the burden of showing good cause by clear and convincing evidence. The record recited shows a written plea form with initialed advisements, oral advisement by the court, and Acedo's sworn acknowledgment after clarifying the consequences, which supports the denial. The opinion gives no independent analysis, as is typical of Wende dispositions, so I can only say the recited facts are consistent with the result. |
Denial of motion to reconsider, including the claim that the plea bargain was illegal under Penal Code section 1192.7, subdivision (a)(2), and that Acedo was not advised fines and fees would be imposed“The trial court denied the motion to reconsider and imposed sentence.” | unclear | correct | agree with court Section 1192.7, subdivision (a)(2) permits plea bargaining in serious-felony cases where, among other things, the testimony of a material witness cannot be obtained or dismissal of a count would not result in a substantial change in sentence. The prosecutor represented that the victim was not cooperating, and the dismissed assault count arose from the same act, so the stated exception is facially applicable; Acedo also pleaded to the serious felony actually charged. The fines-and-fees claim fails on the face of the record because he initialed the advisement, and his statement that he did not read the form does not establish good cause. The appellate court did not analyze these points but its conclusion that there is no arguable issue is defensible on the recited record. |
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.
- 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, and the court must then conduct its own examination of the record.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, recites the facts and the possible issues identified by counsel, notes that Acedo was given and declined the opportunity to file his own brief, and concludes no arguable issue exists; on the recited record that conclusion is defensible. It contains no analysis of the standard of review, of the section 1192.7 exception the prosecutor invoked, or of whether a certificate of probable cause was obtained for a challenge to the plea's validity, and it contains an apparent date error (motion to withdraw dated March 6, 2013 rather than 2014), so it reaches a sound result with gaps in explanation.
Opinion
Filed 2/11/15 P. v. Acedo 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, D066084
Plaintiff and Respondent, v. (Super. Ct. No. SCS268470)
DANIEL ACEDO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel Acedo pleaded guilty to one count of corporal injury to a cohabitant (Pen.
Code, § 273.5, subd. (a))1 and admitted a weapon allegation (§ 1192.7, subd. (c)(23)).
The trial court sentenced Acedo to two years in prison, ordered him to pay fines and fees, and retained jurisdiction to determine victim restitution.
1 All statutory references are to the Penal Code. 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). 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.
FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 2013, Acedo and his girlfriend had an argument at a trolley station. Acedo cut his girlfriend on her left shin with a box cutter, causing a laceration of approximately a quarter inch. A transit security officer witnessed the assault, which was also recorded by security cameras.
The People charged Acedo with a felony count of corporal injury to a cohabitant using a dangerous and deadly weapon (§§ 273.5, subd. (a), 1192.7, subd. (c)(23)) and a felony count of assault with a deadly weapon (§§ 245, subd. (a)(1), 1192.7, subd.
(c)(23)).
After the preliminary hearing, Acedo waived his right to counsel and chose to represent himself. On February 5, 2014, Acedo pleaded guilty to corporal injury to a cohabitant and admitted the weapon allegation. The prosecution agreed to dismiss the count of assault with a deadly weapon and stipulated to a sentence of two years in prison with up to 50 percent reduction in time for good conduct. Acedo filed a written guilty plea acknowledging he had been advised of his constitutional rights and the consequences of his guilty plea. The court advised Acedo of his rights and the consequences of his guilty plea. Acedo, under oath, acknowledged he was advised of his constitutional rights 2 and the charges against him. After clarifying the consequences of his guilty plea with the court, Acedo acknowledged the court advised him of the consequences of his guilty plea.
On March 6, 2013, Acedo filed a motion to withdraw his guilty plea, asserting the trial court initiated the plea negotiations, tried to persuade Acedo to accept the plea bargain and improperly advised him of the consequences of a guilty plea. The motion was heard by another trial court judge on April 11. The court reviewed Acedo's motion, supporting affidavits, and the record transcript, and denied the motion.
Acedo filed a motion to reconsider the denial of his motion to withdraw his guilty plea, claiming the plea agreement was illegal under section 1192.7, subdivision (a)(2), because the crime to which he pleaded guilty was a serious felony. The district attorney stated the case fell within an exception to section 1192.7, subdivision (a)(2), because the victim was not cooperating and the plea bargain served the public's interest in safety in view of the victim's minimal injury. Acedo also asserted he had not been advised that fines and fees would be imposed if he pleaded guilty. When informed he had initialed a form acknowledging that fines and other reasonable conditions could be imposed, Acedo stated he had not read the form advising him of his rights and the consequences of a guilty plea when he initialed the advisements and signed the form. The trial court denied the motion to reconsider and imposed sentence.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel has presented no argument for reversal, and invited this court to review the record for error in accordance with Wende, supra, 3 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but not arguable, issues:
"1. Whether appellant's guilty plea was unlawful, and should be vacated, because appellant entered into a plea bargain in violation of Penal Code section 1192.7, subdivision (a)(2), which limits pleas bargaining in cases alleging the commission of a serious felony?
"2. Whether the trial court erred by denying appellant's motion to withdraw his guilty plea?"
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. We granted Acedo permission to file a brief on his own behalf. He has not responded. Acedo has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is affirmed.
MCDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12