People v. Galaviz CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. PLAR8825
- Trial judge
- Margie G. Woods
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Alex C. McDonald (author), Judith D. McConnell, Gilbert Nares
Analysis
The trial court revoked and reinstated Galaviz's parole, imposing a 180-day custody term, after finding he violated parole by committing indecent exposure. The Court of Appeal affirmed the order, finding no arguable issues for reversal after an independent review of the record pursuant to Wende and Anders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation and reinstatement of parole with 180 days of custody“The court found Galaviz violated the law by committing indecent exposure, and revoked and reinstated parole subject to 180 days of incarceration in jail, with custody credits of 69 days.” | unclear | not reached | unsure The appellate court did not apply a specific standard of review (such as substantial evidence) to the trial court's factual findings. Instead, the court relied on its independent review of the record under Wende and Anders to determine that no arguable issues existed for reversal, effectively affirming the order without a detailed legal analysis of the trial court's application of the law. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues and file a brief if none are found, and requires the court to conduct an independent review of the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues while stating they are frivolous, and requires the court to review the record to ensure no arguable issues are overlooked.
The appellate opinion: sound with gaps — The opinion is procedurally sound in that it follows the mandatory Wende/Anders review process for indigent defendants. However, it is a 'sound with gaps' opinion because it fails to explicitly state the standard of review (substantial evidence) for the parole revocation or analyze the sufficiency of the evidence regarding the surveillance camera testimony, relying instead on a general statement that no arguable issues were found.
How this analysis was made · dispute it
unusual dispositionAfter an evidentiary hearing, the trial court found that parolee Michael Galaviz violated the law by committing indecent exposure in a Walmart and revoked and reinstated his parole on condition that he serve 180 days in jail with 69 days of credit. On appeal, appointed counsel filed a Wende/Anders brief identifying only a possible sufficiency-of-the-evidence issue, Galaviz filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that Galaviz violated parole by committing indecent exposure (Pen. Code, § 314, subd. 1), and order revoking and reinstating parole subject to 180 days in custody“The court found Galaviz violated the law by committing indecent exposure, and revoked and reinstated parole subject to 180 days of incarceration in jail, with custody credits of 69 days.” | unclear | correct | agree with court The appellate court did not state a standard of review; it conducted an independent Wende review and concluded no arguable issue existed. The only issue counsel flagged was whether proof suffices when the witnesses viewed the exposure only through a surveillance camera. On the facts recited, Galaviz exposed his penis for 15 to 20 seconds and stroked it in the ladies department of a retail store, and a loss prevention officer who observed it was offended. Section 314 requires willful lewd exposure in a public place or where others are present to be offended; a store sales floor is a public place and the stroking supports lewd intent. Nothing in the statute as described requires the observers to be physically beside the defendant, and a parole violation need only be proved by a preponderance. The court's conclusion that the sufficiency point is not arguable appears correct, though the opinion offers no analysis of it. |
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 — Counsel who concludes an appeal is frivolous must so advise the court and identify anything in the record that might arguably support the appeal, after which the court reviews the record.
The appellate opinion: sound with gaps — The opinion follows the required Wende/Anders procedure: it identifies the issue counsel raised, notes the defendant was given a chance to file a supplemental brief and did not, and states the court independently reviewed the record. It does not explain why the surveillance-camera sufficiency issue is not arguable or cite any authority on section 314, but Wende review does not require that discussion, so the result is defensible with a modest analytical gap.
Opinion
Filed 9/14/15 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, D067176
Plaintiff and Respondent, v. (Super. Ct. No. PLAR8825)
MICHAEL GALAVIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Margie G.
Woods, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Michael Galaviz appeals the decision of the trial court entered November 3, 2014, revoking and reinstating his parole, subject to the condition he serve 180 days in custody, after he had been arrested for indecent exposure. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) stating counsel is unable to find any arguable issues for reversal on appeal. Counsel requests this court to review the record for error as required by Wende.
FACTS AND PROCEDURAL BACKGROUND
Galaviz was on parole for a vandalism conviction (Pen. Code, § 594, subd. (b)(1))
when he was arrested on September 30, 2014, for indecent exposure, in violation of Penal Code section 314, subdivision 1 and of the terms and conditions of his parole. An evidentiary hearing was held on the alleged parole violation on November 3, 2014. The court found Galaviz violated the law by committing indecent exposure, and revoked and reinstated parole subject to 180 days of incarceration in jail, with custody credits of 69 days. Galaviz filed his notice of appeal from this order on November 12, 2014.
The complaining witnesses, Messrs. Delhoyo and Naughten, were employed as loss prevention officers at a Walmart store when they saw Galaviz acting suspiciously inside the store. When Galaviz was in the ladies department, he took his penis out of his pants and "gently stroke[d] it a little bit." His penis was exposed for 15 to 20 seconds.
Naughten and Delhoyo were watching (through a surveillance camera) when Galaviz exposed himself and Delhoyo was offended by Galaviz's exposure and conduct.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, indicating counsel was unable to find any arguable issues for reversal on appeal and asks this court to review the record for error as mandated by Wende. As required by Anders, supra, 386 U.S. 738, appellate counsel has set forth one 2 possible, but not arguable, issue: Whether there is sufficient evidence to meet the prosecutor's burden to prove the parole violation when the only persons who witnessed the exposure viewed it through a surveillance security camera rather than in person.
We granted Galaviz permission to file a supplemental brief on his own behalf, but he has not responded. We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not discovered any reasonably arguable issues for reversal on appeal. Competent counsel has represented Galaviz on this appeal.
DISPOSITION
The order is affirmed.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12