People v. Moore CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD253250, SCD255670
- Trial judges
- Kathleen M. Lewis; Timothy R. Walsh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion
Analysis
The trial court accepted Moore's guilty pleas to eight counts of robbery and two counts of attempted robbery and sentenced him to nine years in prison. 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 |
|---|---|---|---|
Affirmance of judgment following Wende/Anders review“Indeed our review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, has not identified any reasonably arguable issue for reversal on appeal.” | de novo | not reached | agree with court The court applied the standard Wende/Anders review, which requires the appellate court to independently examine the record for any reasonably arguable issues. The court found no such issues, including the pro se argument regarding sentencing emphasis, and affirmed the judgment. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to identify arguable issues or file a brief explaining why none exist, 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 withdraw from an appeal when no arguable issues exist, requiring a brief identifying potential issues and a court review.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for cases where counsel finds no arguable issues. It addresses the pro se submission by noting it does not raise a reasonably arguable issue, satisfying the requirement to consider the appellant's own arguments.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Moore's guilty pleas in two cases to eight counts of robbery and two counts of attempted robbery and imposed the indicated nine-year prison term; Moore appealed without a certificate of probable cause. Appellate counsel filed a Wende brief, Moore filed a one-paragraph supplemental document complaining his sentence was too high, and the Court of Appeal, after independent review, found no arguable issue and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of guilty plea notwithstanding absence of oral advisement about the limitation on custody credits (limitation was stated in the signed and initialed change of plea form)“Whether Moore's guilty plea was invalid because the court failed to orally advise him of the limitation on custody credits, which limitation was set forth in the change of plea form that Moore signed and initialed.” | unclear | correct | agree with court The court treated this as a possible but not reasonably arguable issue under Wende/Anders. A challenge to the validity of the plea requires a certificate of probable cause under section 1237.5, which Moore did not obtain, and a written advisement in a signed and initialed plea form generally suffices. The court did not spell out this reasoning, but the result is consistent with settled law. |
Imposition of the nine-year indicated sentence over Moore's contention that the sentence was too high because the prosecutor overemphasized his threats to tellers“He also indicates his sentence was too high because the prosecutor unduly emphasized his threats to tellers in the prosecutor's sentencing statement.” | unclear | correct | agree with court Moore received exactly the sentence the trial court indicated as the inducement for his plea. A challenge to a sentence that was an integral part of the plea is in substance a challenge to the plea's validity and requires a certificate of probable cause, which Moore lacked; in any event the court found nothing arguable on the record. The conclusion is defensible, though the court did not cite the governing certificate authority. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court and should identify anything in the record that might arguably support the appeal.
- missed: People v. Panizzon (1996) 13 Cal.4th 68 — A challenge to a sentence that was an integral part of a plea agreement is in substance a challenge to the plea's validity and requires a certificate of probable cause under section 1237.5.
The appellate opinion: sound with gaps — The court conducted the required Wende/Anders review, described Moore's supplemental contentions, and reasonably concluded they presented no arguable issue. It did not, however, explain why the custody-credit advisement issue fails or cite Panizzon to show that Moore's attack on his negotiated indicated sentence was barred absent a certificate of probable cause.
Opinion
Filed 10/9/15 P. v. Moore 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, D067213
Plaintiff and Respondent, v. (Super. Ct. No. SCD253250, SCD255670) VICTOR LAMAR MOORE, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh and Kathleen M. Lewis, Judges. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
In this case Victor Lamar Moore entered guilty pleas in two different cases to eight counts of robbery (Pen. Code,1 § 211) and two counts of attempted robbery (§§ 664, 211). The plea was motivated by the trial court's indication it would consider limiting the sentence to nine years for both cases.
1 All further statutory references are to the Penal Code unless otherwise specified. Moore was sentenced to the indicated term of nine years in prison for both cases.
Moore filed a timely notice of appeal but did not request a certificate of probable cause (§ 1237.5).
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has not been able 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 Moore the opportunity to file his own brief on appeal.
He has responded with a one paragraph document, which we will discuss below.
STATEMENT OF FACTS
Since this appeal arises from a guilty plea, without a certificate of probable cause, we will only briefly summarize the various counts.
Case No. SCD253250 Count 1: On January 4, 2014, Moore approached a U.S. Bank teller at an Albertson's market. Moore demanded $10,000. The teller gave him $800 including bait money. Moore was arrested a short time later and the teller identified him as the robber.
Count 2: On January 3, 2014, Moore approached a U.S. Bank teller in a Vons market. He demanded $10,000. Ultimately he left without any money.
Case No. SCD255670 Count 1: On December 6, 2013 Moore entered a Citibank branch in Solana Beach. Moore demanded $10,000, but left with $2,584.
Count 2: On November 8, 2013, Moore entered a San Diego County Credit Union branch. He presented the teller with a note that stated "10K and I have a gun." Moore left with $2,821. 2 Count 3: On October 25, 2013, Moore entered a Comerica Bank. He presented the teller with a note that said, "Stay calm. I have a gun." Moore obtained $1,222.
Count 4: On May 21, 2013, Moore approached a U.S. Bank teller and presented a note, "Stay calm. I need $5,000. I have a gun." Moore obtained $5,000.
Count 5: This robbery was of a Comerica Bank in San Diego on March 26, 2013.
Moore presented the teller with a note that stated "I need $6,000 cash. I have a gun." He left with $1,968.
Count 6: On March 11, 2013, Moore entered a U.S. Bank branch in San Ysidro.
He presented a note that he wanted $6,000 in 100 dollar bills. He showed a pouch that looked like it contained a gun. Moore left without obtaining any money.
Count 7: This robbery took place at a U.S. Bank branch on September 21, 2012.
Moore presented a note, "I have a gun. Go to the vault and get $5,000." The teller did so and Moore left with $5,000.
Count 8: On August 24, 2012, Moore entered a Wells Fargo bank inside a Ralphs market. This time his note said "I need all of the money. I have a gun." Moore left with $477.
DISCUSSION
As we have noted, appellate counsel has been unable to identify any reasonably arguable issue for reversal on appeal and has filed a brief pursuant to Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel has identified the following possible, but not reasonably arguable issue:
3 Whether Moore's guilty plea was invalid because the court failed to orally advise him of the limitation on custody credits, which limitation was set forth in the change of plea form that Moore signed and initialed.
Moore has filed a very brief document on his own behalf. In that document Moore offers to file a certificate of probable cause if the court would like him to do so. He also indicates his sentence was too high because the prosecutor unduly emphasized his threats to tellers in the prosecutor's sentencing statement. Moore indicates he would prefer a seven-year sentence.
Moore's additional document does not identify any reasonably arguable issue for reversal on appeal. Indeed our review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, has not identified any reasonably arguable issue for reversal on appeal. Competent counsel has represented Moore on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 4
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12