People v. Hardy CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD239663
- Trial judge
- Desiree Bruce-Lyle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), Richard D. Huffman, Sr., Patricia D. Benke
Analysis
The trial court revoked Hardy's mandatory supervision following a finding of violations and ordered her to serve 136 days in custody. The Court of Appeal affirmed the order after an independent review of the record found no reasonably arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order revoking mandatory supervision and imposing 136 days of custody“we have discerned no reasonably arguable appellate issue. Hardy has been adequately represented by counsel on this appeal.” | de novo | not reached | unsure The court conducted an independent review of the record pursuant to People v. Wende and Anders v. California, finding no reasonably arguable issues. The court did not explicitly state a standard of review for the specific trial court rulings (statutory authority, sufficiency of evidence, or credit calculation) but affirmed the order based on the absence of arguable error. |
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 if no arguable issues are presented.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal by filing a brief identifying potential issues and allowing the court to independently review the record.
- relied: Cuccia v. Superior Court (2007) 153 Cal.App.4th 347 — Supports the court's authority to take judicial notice of its own prior unpublished opinions.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for independent review when appointed counsel identifies no arguable issues. However, it is a 'sound with gaps' opinion because it fails to provide any specific reasoning or analysis regarding the three potential issues identified by counsel (statutory authority, sufficiency of evidence, and credit calculation), merely stating that no reasonably arguable issues were discerned.
How this analysis was made · dispute it
unusual dispositionThe trial court found that Hardy violated the terms of her mandatory supervision in July 2014 by leaving her residential treatment facility without permission and failing to take court-ordered psychotropic medication, revoked supervision, and reinstated it with 136 days in custody. On appeal, appointed counsel filed a Wende brief, Hardy filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of mandatory supervision under Penal Code section 1203.2 based on findings that Hardy left the residential treatment facility without permission and failed to take prescribed and court-ordered psychotropic medications“the court found that Hardy had violated the terms of her mandatory supervision in two regards during July 2014” | unclear | correct | agree with court The court conducted an independent Wende/Anders review of the record and found no arguable issue, including as to whether substantial admissible evidence supported the violation findings. The opinion does not recite the evidence, so the reader cannot independently verify sufficiency, but nothing in the opinion suggests error and the Wende procedure was properly followed. |
Reinstatement of mandatory supervision on original terms with modification requiring 136 days in custody, and calculation of custody credits“whether the 136 days of custody ordered by the court are statutorily authorized” | unclear | correct | agree with court Counsel flagged the statutory authorization for the 136-day term and credit calculation as possible but not arguable issues; the court considered them and found no reasonably arguable issue. The opinion does not detail the credit computation, so the conclusion cannot be independently confirmed from the opinion alone, but no error is apparent. |
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 no meritorious issues should file a brief referring to anything in the record that might arguably support the appeal, and the court must then review the record.
- relied: Cuccia v. Superior Court (2007) 153 Cal.App.4th 347 — A reviewing court may take judicial notice of its own prior opinion in a related matter.
The appellate opinion: sound — The court followed the required Wende/Anders procedure, considered the issues counsel identified, gave the defendant an opportunity to file a supplemental brief, and independently reviewed the record before affirming. The opinion is brief and does not recite the evidence or the credit computation, but that is typical of Wende affirmances and does not reflect any misreading of the law.
Opinion
Filed 6/10/15 P. v. Hardy 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, D066997
Plaintiff and Respondent, v. (Super. Ct. No. SCD239663)
AMELIA HARDY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Desiree Bruce-Lyle, Judge. Affirmed.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Amelia Hardy appeals from a postjudgment order revoking mandatory supervision following a contested hearing. (Pen. Code, § 1203.2.) 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). Hardy 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.
FACTUAL AND PROCEDURAL BACKGROUND1
Following a plea of guilty to aiding and abetting the sale of a controlled substance to an undercover police officer (Health & Saf. Code, § 11379, subd. (a)), Hardy received a split sentence of two years in local custody and two years mandatory supervision. After release from local custody and while on mandatory supervision, based on multiple incidents in May 20142 and July 2014, at separate hearings the court found that Hardy violated the terms of her mandatory supervision during both time periods. Only the July 2014 violations, which were the subject of an evidentiary hearing in September 2014, are before us in this appeal.
At the September 2014, hearing, based on evidence presented by the People, the court found that Hardy had violated the terms of her mandatory supervision in two regards during July 2014: (1) Hardy had not complied with the rules of the residential 1 On our own motion, we take judicial notice of our prior opinion in People v. Hardy (Feb. 11, 2014, D064225) [nonpub. opn.]. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a); Cuccia v. Superior Court (2007) 153 Cal.App.4th 347, 350, fn. 2.)
2 On April 12, 2014, Hardy left her sober living program without permission and spent the night at her daughter's house in violation of the conditions of her mandatory supervision. On May 1, 2014, the court formally revoked mandatory supervision and following an evidentiary hearing on May 22, 2014, ordered Hardy to take her psychotropic medications and to serve 120 days in local custody. By mid-June, Hardy was released from custody and again placed in a sober living transitional program. 2 treatment facility at which she lived, by leaving twice without permission; and (2) Hardy had failed to take the psychotropic medications prescribed by a medical doctor and ordered by the court. The court revoked mandatory supervision and then reinstated it on the original terms and conditions with the modification that Hardy serve 136 days in custody.
Hardy timely appealed.
II.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal, instead inviting 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 possible but not arguable issues (1) whether the 136 days of custody ordered by the court are statutorily authorized; (2) whether substantial admissible evidence supports the findings that Hardy left the residential treatment facility in violation of its rules, and that Hardy was not taking the previously prescribed and ordered medications; and (3) whether the court properly calculated Hardy's credits.
After we received counsel's brief, we gave Hardy an opportunity to file a supplemental brief, but she did not respond.
We have reviewed the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and have considered the issues suggested by counsel, but 3 have discerned no reasonably arguable appellate issue. Hardy has been adequately represented by counsel on this appeal.
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
Cites, in this corpus
- Cuccia v. Superior Court B197278 · 2007-07-16
- People v. Wende Crim. 20851 · 1979-10-12