People v. Duran CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF32341
- Trial judge
- Poli Flores, Jr.
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, Judith L. Haller
Analysis
The trial court revoked probation and sentenced the defendant to the upper term of eight years in prison after the defendant admitted to violating probation conditions. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of the upper term of imprisonment following probation revocation“Whether the trial court abused its discretion in imposing the upper term of imprisonment?” | abuse of discretion | not reached | unsure The court identified the issue as 'possible, but not reasonably arguable' and stated it had not discovered any reasonably arguable issue for reversal, effectively declining to apply the standard of review to the merits. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no issues are identified, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any possible, though not reasonably arguable, issues to assist the court in its independent review.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its adherence to Wende and Anders requirements for independent review. However, it provides no substantive legal analysis or reasoning for why the identified issue was not reasonably arguable, relying solely on the conclusion that no error was found.
How this analysis was made · dispute it
unusual dispositionThe trial court found that Duran violated probation on his Penal Code section 288, subdivision (a) conviction after he waived trial rights and admitted the violation, then revoked probation and imposed the upper term of eight years. On appeal, counsel filed a Wende brief, Duran filed nothing, 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 probation based on Duran's waiver of trial rights and admission that he violated the no-contact condition and was terminated from his required program“Duran waived his trial rights and admitted he had violated probation. Duran admitted he had been kicked out of his required program.” | unclear | correct | agree with court The opinion recites a knowing waiver of trial rights and an admission of specific conduct violating the probation conditions; nothing in the opinion suggests any defect in the admission, and independent Wende review found none. The record as described supports the revocation. |
Imposition of the upper term of eight years for the section 288(a) offense after revocation of probation“The court found the sentencing factors in aggravation outweighed any mitigating factors and selected the upper term for the offense.” | abuse of discretion | correct | agree with court The opinion states the court relied on the original probation report, the circumstances of the offense, and Duran's criminal history, which is consistent with the rule that the term after revocation must rest on circumstances existing when probation was granted. The weighing of aggravating and mitigating factors is a discretionary call, and the opinion identifies no improper factor; the result appears defensible, though the opinion gives too little detail to be certain. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed 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 lacking in merit may so advise the court but should identify anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure, identifies the one potential issue counsel flagged (the upper term), notes that the trial court relied on the original probation report and offense circumstances, and affirms after independent review. It is a brief, formulaic no-issue opinion that does not analyze the upper-term question in any detail, but nothing in it suggests a misreading of the law.
How this analysis was made · dispute it
record incompleteOpinion
Filed 5/18/15 P. v. Duran 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, D067023
Plaintiff and Respondent, v. (Super. Ct. No. JCF32341)
DAVID BARBA DURAN, JR., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed.
Forest M. Wilkerson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In May 2014, David Duran was convicted of a lewd act on a child (Pen. Code, § 288, subd. (a)). Duran was placed on probation on various terms and conditions. In August 2014 the probation department filed a motion to revoke probation alleging that Duran violated the condition to not have contact with the victim or her family. In September 2014, Duran waived his right to trial and admitted violation of his probation. Thereafter the court sentenced Duran to the upper term of eight years in prison.
Duran 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 been unable to identify any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Duran the opportunity to file his own brief on appeal but he has not responded.
STATEMENT OF FACTS
The facts of the underlying offense are not relevant to this appeal. As to the probation revocation, Duran waived his trial rights and admitted he had violated probation. Duran admitted he had been kicked out of his required program. He also admitted he had contacted the victim's mother although he had been instructed by probation not to do so.
At sentencing the trial court reviewed the original probation report and the circumstances underlying the crime and Duran's criminal history. The court found the sentencing factors in aggravation outweighed any mitigating factors and selected the upper term for the offense.
DISCUSSION
As we have noted, appellate counsel has indicated he has been unable to identify any reasonably arguable issues for reversal on appeal. Pursuant to Anders v. California 2 (1967) 386 U.S. 738 (Anders), counsel has identified a possible, but not reasonably arguable issue to assist the court in its review of the record:
Whether the trial court abused its discretion in imposing the upper term of imprisonment?
We have reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not discovered any reasonably arguable issue for reversal on appeal. Competent counsel has represented Duran on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12