People v. Arriero CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD235118
- Trial judge
- Jeffrey F. Fraser
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald
Analysis
The trial court denied Arriero's motions to suppress evidence and accepted his guilty plea, which included a waiver of the right to appeal the suppression denials. 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 |
|---|---|---|---|
Denial of motions to suppress evidence under Penal Code section 1538.5“Arriero brought two motions to suppress evidence under section 1538.5, which were denied by the trial court.” | unclear | not reached | agree with court The appellate court did not review the merits of the suppression denials because the defendant waived the right to appeal them in the plea agreement, and the Wende review found no other reversible error. |
Acceptance of guilty plea and waiver of appellate rights“In the change of plea form, Arriero initialed the box which stated he was waiving his right to appeal from, among other things, "the denial of my 1538.5 motion"” | de novo | correct | agree with court The court found the waiver valid and binding, noting that Arriero initialed the specific box waiving appeal rights regarding the suppression motions and the stipulated sentence. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no issues are identified.
- 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 not reasonably arguable.
- relied: People v. Panizzon (1996) 13 Cal.4th 68 — Requires trial courts to ensure defendants understand the terms of a plea agreement, including waivers of appeal rights.
- relied: People v. Castrillon (1991) 227 Cal.App.3d 718 — Addresses the validity of plea waivers and the requirement for a knowing and voluntary waiver of appeal rights.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for error. It accurately notes that the defendant waived the right to appeal the suppression denials, which precludes merit review of those specific issues.
How this analysis was made · dispute it
unusual dispositionThe trial court denied two Penal Code section 1538.5 suppression motions, after which Arriero pleaded guilty to two robberies and an attempted murder with gang enhancements under a plea agreement containing a stipulated 21-year-8-month term and an initialed waiver of the right to appeal the suppression rulings and the stipulated sentence. On appeal, appointed counsel filed a Wende brief, Arriero filed nothing, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Arriero's two motions to suppress evidence under Penal Code section 1538.5“Arriero brought two motions to suppress evidence under section 1538.5, which were denied by the trial court.” | unclear | not reached | unsure The court did not address the merits of the suppression rulings; it noted that Arriero initialed a plea-form waiver of his right to appeal the denial of the 1538.5 motions and then conducted only a Wende review of the whole record. Because the opinion recites no facts about the searches or the grounds for the motions, there is no basis to evaluate the trial court's rulings independently, but the plea waiver would ordinarily foreclose review, so the court's decision not to reach them is defensible. |
Acceptance of the guilty plea and appellate-rights waiver without the trial court orally reviewing the terms of the written change of plea form with the defendant“Whether the trial court erred in failing to review the terms of the written change of plea form with Arriero, particularly that portion which includes the waiver of appellate rights as part of the plea bargain.” | unclear | correct | agree with court Counsel flagged this as a possible Anders issue; the court, after independent review, concluded it was not reasonably arguable. Under Panizzon a written, initialed waiver of appellate rights is valid if knowing and voluntary, and Castrillon permits reliance on a properly executed written plea form. The opinion recites that Arriero initialed the waiver box, which supports the conclusion, though the opinion does not quote any oral colloquy confirming the waiver. |
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 may file a brief referring to anything in the record that might arguably support the appeal, to assist the court's independent review.
- relied: People v. Panizzon (1996) 13 Cal.4th 68 — A defendant's knowing and voluntary waiver of the right to appeal, including a waiver of the right to appeal a stipulated sentence, is valid and enforceable; a challenge to the stipulated sentence is in substance a challenge to the plea requiring a certificate of probable cause.
- relied: People v. Castrillon (1991) 227 Cal.App.3d 718 — A trial court may rely on a defendant's validly executed written plea form, including advisements and waivers initialed by the defendant, to establish a knowing and intelligent plea.
The appellate opinion: sound with gaps — The opinion follows the standard Wende procedure, identifies the one possible issue counsel flagged with the governing authorities (Panizzon and Castrillon), and affirms after independent record review, which is the correct disposition where the defendant waived appeal of the suppression rulings and filed no supplemental brief. It does not explain why the appeal waiver forecloses the 1538.5 issues or recite any oral colloquy supporting the waiver, but in a Wende affirmance that brevity is permissible and the result is defensible.
Opinion
Filed 12/17/15 P. v. Arriero 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, D067224
Plaintiff and Respondent, v. (Super. Ct. No. SCD235118)
JUAN JOSE ARRIERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.
Fraser, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
Juan Jose Arriero was charged with 11 felony counts including robbery (Pen.
Code,1 § 211) and attempted murder (§§ 187/664), as well as others. Arriero brought 1 All further statutory references are to the Penal Code unless otherwise specified. two motions to suppress evidence under section 1538.5, which were denied by the trial court.
Arriero then entered into a plea agreement, under the terms of which he admitted two counts of robbery, one count of attempted murder and admitted the gang allegations (§ 186.22, subd. (b)(1)). In return for the guilty pleas, the remaining counts were dismissed and the parties stipulated to a determinate term of 21 years 8 months for the offenses.2 In the change of plea form, Arriero initialed the box which stated he was waiving his right to appeal from, among other things, "the denial of my 1538.5 motion"
and "any sentence stipulated herein."
Arriero was sentenced to the stipulated term in prison. Arriero filed a timely notice of appeal from the denial of his section 1538.5 motions. He did not obtain a certificate of probable cause.
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 reasonable arguable issues for reversal on appeal. Counsel asks this court to review the record for error as required by Wende. We offered Arriero the opportunity to file his own brief on appeal but he has not responded.
2 A separate case was also dismissed as part of the plea bargain (CS266798). 2 STATEMENT OF FACTS3 Since this appeal is from guilty pleas, there is no trial testimony. The trial court used the transcript of the preliminary hearing (which covered multiple counts) as the factual basis for the pleas. Appellate counsel has provided an accurate summary of the facts from that hearing to give context for the counts to which Arriero pleaded guilty.
We adopt that summary.
As to count 2, on June 27, 2011 at about 1:35 in the morning, Justin Marcus and his brother Wanya Robbins were sitting in front of their apartment when an SUV stopped in front of them. Marcus described the SUV as light in color, but the mother of the other victim described it as black with a stripe on the side. Two Hispanic males got out. One had a shaved head and the other wore a black beanie. The driver was armed with a handgun and the passenger had a shotgun. The driver yelled, "We're Southeast" and demanded wallets and money. The two victims only had hand-held gaming units, which they turned over to the men. Mr. Marcus obtained a partial license plate. They positively identified his codefendant Regalado as one of the perpetrators in a photo line-up.
As to count 4, on June 27, 2011, in the middle of the night, Zachary Lam was skateboarding on the 7300 block of El Cajon Boulevard when he was approached by a Hispanic man who exited from a dark green or brown SUV. The man "patted him down"
while the driver pointed a shotgun and a handgun at him and said that if Lam did not 3 The parties stipulated that the preliminary hearing provided a factual basis for the plea. The statement of facts addresses only the counts to which the defendant pled guilty and are taken from the preliminary hearing transcript. 3 comply, he would be shot. Lam grabbed the passenger and after a brief scuffle, he was shot in the head. Lam survived and later identified Arriero and Regalado as the perpetrators.
As to count 6, on June 27, 2011, sometime before 1:55 a.m., Augustine Flores was walking southbound on the 4500 block of College Avenue. A black SUV with a grey stripe pulled up and two men exited. Both were described as Hispanic, with shaved heads. One had a shotgun and one had a pistol. They demanded his wallet and threatened to shoot him. They referenced "Southeast, KN." He handed over his property and the two men got back into the SUV and drove away.
A number of photographs, which had been taken on the evening of June 26th and on June 28th, were recovered from Arriero's cell phone. They showed both codefendants making "gang signs" and holding a shotgun and handgun.
Appellant and his codefendant are both documented "Southeast" gang members from the "Klown Nation" (KN) gang.
DISCUSSION
As we have noted, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, indicating she has not been able to identify any reasonably arguable issues for reversal on appeal. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible, but not reasonably arguable issue to assist this court in its review of the record:
Whether the trial court erred in failing to review the terms of the written change of plea form with Arriero, particularly that portion which includes the waiver of appellate 4 rights as part of the plea bargain. (People v. Panizzon (1996) 13 Cal.4th 68; People v. Castrillon (1991) 227 Cal.App.3d 718.)
We have reviewed the entire record and have not discovered any reasonably arguable issues for reversal on appeal. Competent counsel has represented Arriero on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, 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. 5
Cites, in this corpus
- People v. Panizzon S046141 · 1996-04-18
- People v. Castrillon G008523 · 1991-02-04
- People v. Wende Crim. 20851 · 1979-10-12