People v. Galaviz CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. PLAR8825
- Trial judge
- Desiree A. Bruce-Lyle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Gilbert Nares
Analysis
The trial court revoked Galaviz's parole and ordered a 135-day return to custody after he waived his right to contest the alleged violations. The Court of Appeal affirmed the judgment after 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 |
|---|---|---|---|
Revocation of parole and return to custody“Galaviz, who was represented by counsel, signed a parole revocation recommendation and waiver form in which he waived his right to contest the alleged violations.” | de novo | not reached | agree with court The appellate court did not review the merits of the revocation because the defendant waived his right to contest the violations and appellate counsel filed a Wende brief identifying no reasonably arguable issues. The court affirmed based on its independent review of the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to identify any reasonably arguable issues on appeal and, if none are found, to file a brief requesting the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from a criminal appeal when no arguable issues exist, requiring a brief identifying potential issues and an independent court review.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for indigent criminal appeals where counsel identifies no arguable issues. The court explicitly states it reviewed the entire record and found no error, which satisfies the constitutional requirements for effective assistance of appellate counsel in this context.
How this analysis was made · dispute it
unusual dispositionThe superior court revoked Michael Galaviz's parole and ordered a 135-day return to custody after he, represented by counsel, signed a parole revocation recommendation and waiver form admitting alleged violations (alcohol use and possession, loitering near where children congregate, and possessing pornography). On appeal, appointed counsel filed a Wende brief identifying no arguable issue, Galaviz 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 |
|---|---|---|---|
Revocation of parole and 135-day return to custody based on defendant's signed waiver of his right to contest the alleged parole violations“We have reviewed the entire record for error pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any reasonably arguable issue for reversal on appeal.” | unclear | correct | agree with court This was a Wende/Anders independent record review rather than review of a contested ruling. Galaviz, with counsel, waived his right to contest the violations and accepted the agent's recommended 135-day custody term, so no issue was preserved regarding the sufficiency of the evidence. The one potential issue counsel flagged (validity of the parole conditions as reasonably related to the commitment offense or future criminality) is weak given his section 290 registration status, the admitted alcohol use, presence within 250 feet of a children's playground, and possession of nude images of teenage girls, which plainly relate to preventing future criminality. Nothing in the opinion suggests the waiver was involuntary or that the custody term exceeded what was agreed. The affirmance is consistent with the authorities cited. |
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 leave to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, states the facts and procedural history, notes the defendant was invited to file his own brief, and concludes after independent review that no arguable issue exists, a result fully supported on the facts stated given the counseled waiver and the obvious relationship of the violated conditions to a section 290 registrant's risk. It does not expressly address whether Wende review is even required for an appeal from a postjudgment parole revocation order or discuss the knowing and voluntary character of the waiver, but these omissions do not affect the defensible outcome.
Opinion
Filed 5/18/15 P. v. Galaviz 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, D066519
Plaintiff and Respondent, v. (Super. Ct. No. PLAR8825)
MICHAEL GALAVIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Desiree A.
Bruce-Lyle, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Michael Galaviz was convicted in 2013 of felony vandalism (Pen. Code,1 § 594, subd. (b)(1)). Galaviz had a prior conviction for indecent exposure (§ 314, subd. 1) and was required to register pursuant to section 290. He was released on parole in 2014 subject to a number of conditions.
1 All further statutory references are to the Penal Code unless otherwise specified. On July 25, 2014 parole authorities filed a parole violation report alleging Galaviz used and possessed alcohol; loitered near where children congregated including day care centers, schools, and parks; and possessed pornography. The agent petitioned the court to revoke parole.
Galaviz, who was represented by counsel, signed a parole revocation recommendation and waiver form in which he waived his right to contest the alleged violations. In the form, Galaviz accepted the agent's recommendation for a 135-day return to custody.
Galaviz has appealed the revocation of his parole and return to custody.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she has been unable to identify any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record for error as required by Wende. We offered Galaviz the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
On July 17, 2014 a parole agent contacted Galaviz at the intersection of Union Street and West Harbor Street. Galaviz told the agent he had consumed a beer. A search of his belongings produced the remainder of a six pack of beer.
The location where Galaviz was sitting was within 250 feet of the Children's Museum and children were playing on the nearby playground.
2 A search of Galaviz's person produced a thumb drive containing nude pictures of teenage girls as well as adult women. Galaviz was then arrested for the alleged violations.
DISCUSSION
As we have indicated, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, requesting this court to review the record for error. To assist this court in its review, and in accordance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible, but not reasonably arguable issue:
Whether the parole conditions, which were the basis of the revocation, were valid conditions of parole that were reasonably related to his commitment offense and/or the prevention of future criminality?
We have reviewed the entire record for error pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any reasonably arguable issue for reversal on appeal. Competent counsel has represented Galaviz on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J. 3
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12