People v. Rupp CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD255753
- Trial judges
- Polly H. Shamoon; Timothy R. Walsh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Richard D. Huffman, Sr., O'Rourke
Analysis
The trial court accepted Rupp's guilty plea to possession of methamphetamine for sale, sentenced her to 16 months in local custody, and denied her request for probation with a drug court referral. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende found no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of probation with referral to drug court“whether the trial court abused its discretion by denying Rupp's request for a grant of probation with a referral to drug court” | abuse of discretion | not reached | unsure The court identified this as a possible issue but concluded after independent review that no reasonably arguable appellate issue existed, effectively finding no abuse of discretion without detailed analysis. |
Ineffective assistance of counsel regarding plea consequences“whether the record on appeal supports a claim that Rupp received ineffective assistance of counsel as to the consequences of her plea” | unclear | not reached | unsure The court identified this as a possible issue but concluded after independent review that no reasonably arguable appellate issue existed, effectively finding the claim meritless without detailed analysis. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying potential issues and invites the court to independently review the record for error when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying potential issues and invites the court to independently review the record for error when counsel finds no arguable issues.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — Establishes the right to request a hearing to determine if counsel is providing effective assistance.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the required Wende/Anders protocol for appointed counsel appeals. However, it provides no substantive legal analysis for the two issues identified by counsel, relying solely on the conclusion that no reasonably arguable issues exist.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Rupp's guilty plea to possession of methamphetamine for sale under a negotiated 16-month local custody term, denied her request for probation with a drug court referral, and imposed the agreed sentence concurrent with three other cases. On appeal, appointed counsel filed a Wende brief, Rupp filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Rupp's request for probation with a referral to drug court and imposition of the stipulated 16-month local custody sentence“At sentencing the trial court rejected Rupp's request that she be placed on probation with a reference to drug court.” | abuse of discretion | correct | agree with court Counsel flagged this as a possible Anders issue framed as abuse of discretion. The sentence imposed matched the plea agreement recited in the plea form and on the record, and the information alleged three probation-denial priors under Penal Code section 1203, subdivision (e)(4), so the denial of probation was well within the court's discretion. The opinion gives little detail, but nothing in the recited record suggests error. |
Validity of the guilty plea / adequacy of advisement regarding plea consequences (ineffective assistance of counsel claim raised in certificate of probable cause)“whether the record on appeal supports a claim that Rupp received ineffective assistance of counsel as to the consequences of her plea” | unclear | correct | agree with court Rupp's certificate request asserted inadequate advisement of plea consequences and of the possibility of a Marsden hearing, but the opinion notes the plea form and the court's on-record recitation of the 16-month agreement, and Rupp stated a factual basis. Ineffective assistance claims resting on matters outside the record are properly left to habeas; the Wende review found nothing arguable. The opinion does not detail its analysis, so I agree but cannot verify fully. |
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 error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may file a brief referring to anything in the record that might arguably support the appeal, and the court must then conduct its own review.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel is entitled to a hearing to state the reasons for the request; referenced in Rupp's certificate of probable cause request.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure, identifies the issues counsel flagged, notes the defendant's failure to file a supplemental brief, and states that independent review disclosed no arguable issue. It does not explain why the probation denial or the plea-advisement claim fails, which is typical for Wende affirmances but leaves the analysis thin.
Opinion
Filed 3/19/15 P. v. Rupp 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, D066718
Plaintiff and Respondent, v. (Super. Ct. No. SCD255753)
JACQUELINE R. RUPP, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Polly H.
Shamoon and Timothy R. Walsh, Judges. Affirmed.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Jacqueline R. Rupp appeals from a judgment following her guilty plea to a single count of possession of methamphetamine for purpose of sale (Health & Saf. Code, § 11378). 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). Rupp 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
Arising out of a theft of merchandise at Walmart and the subsequent discovery of drugs in Rupp's vehicle,1 Rupp was charged with possession for sale of heroin (Health & Saf. Code, § 11351); possession of heroin (id., § 11350, subd. (a)); possession for sale of methamphetamine (id., § 11378); possession of methamphetamine (id., § 11377, subd.
(a)); burglary (Pen. Code, § 459); grand theft of personal property (id., § 487, subd. (a));
petty theft with prior theft convictions (id., §§ 484, 666, subd. (a)); and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). The information further alleged three probation denial priors. (Pen. Code, § 1203, subd. (e)(4).)
On June 25, 2014, Rupp pled guilty to possession for sale of methamphetamine (Health & Saf. Code, § 11378), and the People dismissed the remainder of the complaint.
The guilty plea form that Rupp signed stated that the People had agreed that Rupp would be sentenced to 16 months in local custody, and the trial court recited that agreement on the record when taking Rupp's guilty plea. As the factual basis for the guilty plea, Rupp stated that she knowingly possessed methamphetamine for the purpose of sale.
1 We base our factual description on the probation officer's report and the preliminary hearing transcript. 2 The trial court sentenced Rupp to 16 months in local custody and ordered that the sentence be served concurrently with the sentences in three other cases. At sentencing the trial court rejected Rupp's request that she be placed on probation with a reference to drug court.
Rupp filed a notice of appeal and obtained a certificate of probable cause from the trial court for the appeal. In the request for the certificate of probable cause, Rupp stated that she was not adequately advised by her attorney of the consequences of her plea or the possibility of a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118).
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 issues (1) whether the trial court abused its discretion by denying Rupp's request for a grant of probation with a referral to drug court; and (2) whether the record on appeal supports a claim that Rupp received ineffective assistance of counsel as to the consequences of her plea.
After we received counsel's brief, we gave Rupp an opportunity to file a supplemental brief, but Rupp 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 3 reasonably arguable appellate issue. Rupp has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Marsden Crim. 14119 · 1970-02-26