People v. Davis CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS273151
- Trial judge
- Francis M. Devaney
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Patricia D. Benke
Analysis
The trial court convicted Davis of robbery and imposed a 25-year sentence after striking two of his three strike priors. The Court of Appeal affirmed the judgment after conducting 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 |
|---|---|---|---|
Judgment of conviction and sentence for robbery“We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738. We have not been able to identify any reasonably arguable issue for reversal on appeal.” | de novo | not reached | agree with court The court conducted an independent review of the record as required by People v. Wende and Anders v. California, finding no reasonably arguable issues for reversal. The court affirmed the judgment without addressing the specific merits of the sufficiency of evidence or ineffective assistance claims raised in the supplemental brief, as it found no arguable error in the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed appellate counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record when counsel finds no arguable issues.
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Establishes the standard for trial courts to exercise discretion to strike prior serious or violent felony convictions under the Three Strikes law.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for independent review when appellate counsel identifies no arguable issues. However, it is somewhat thin in its analysis, as it dismisses the defendant's specific ineffective assistance and sufficiency of evidence arguments without detailed engagement, relying solely on the conclusion that no reasonably arguable issues were found in the record.
How this analysis was made · dispute it
unusual dispositionA San Diego jury convicted Michael Earl Davis of robbery, he admitted three serious-felony priors and three strike priors, and the trial court struck two strikes and imposed a 25-year determinate sentence. On appeal counsel filed a Wende brief, Davis filed a supplemental brief alleging ineffective assistance of trial counsel, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Robbery conviction supported by sufficient evidence (issue flagged by appellate counsel under Anders as possible but not arguable)“Whether there is sufficient substantial evidence in the record to support the robbery conviction beyond a reasonable doubt.” | substantial evidence | correct | agree with court The opinion recites that the teller identified Davis from surveillance photos, a furlough-center employee who knew him recognized him from a wanted poster and a photo display, and his federal probation officer identified him from the surveillance photos. Three independent identifications, including two by people familiar with him, are ample substantial evidence of identity; the lack of DNA or recovered money goes to weight, not sufficiency. |
Rejection of supplemental-brief claim that trial counsel was ineffective for not moving under section 1538.5 to suppress an allegedly defective identification“He faults counsel for not filing a motion under section 1538.5 (search and seizure motions) to suppress a defective identification process.” | unclear | correct | agree with court Section 1538.5 governs suppression of evidence obtained by unlawful search or seizure and is not the vehicle for challenging an identification procedure; a suggestive-identification claim is a due process question. Davis offered no record facts suggesting the photo identifications were impermissibly suggestive, and on direct appeal an ineffective-assistance claim fails where the record does not show deficient performance and prejudice. The court's conclusion is defensible, though it gave no reasoning beyond noting the absence of support. |
Rejection of supplemental-brief claim that trial counsel was ineffective for not filing a Romero motion to strike the strike priors“We note the trial court did strike two of the strike priors, thus avoiding a life sentence for Davis.” | unclear | correct | agree with court The trial court in fact exercised its Romero discretion and struck two of three strikes, so Davis obtained the relief a Romero motion seeks; he cannot show prejudice from the absence of a formal motion. The court's reasoning, though brief, directly answers the contention. |
Judgment affirmed after independent Wende/Anders review of the entire record“We have not been able to identify any reasonably arguable issue for reversal on appeal.” | unclear | correct | agree with court The opinion follows the required Wende procedure: counsel filed a no-issue brief identifying an Anders issue, Davis was invited to and did file a supplemental brief, the court addressed his contentions, and it independently reviewed the record. Nothing in the facts recited suggests an arguable error; the 25-year sentence is consistent with a doubled upper term for robbery plus three five-year serious-felony enhancements. |
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.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel who finds an appeal frivolous must identify anything in the record that might arguably support the appeal to assist the court's review.
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Trial courts have discretion under Penal Code section 1385 to strike prior strike convictions in furtherance of justice.
The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure, addressed each contention in Davis's supplemental brief, and reached the plainly correct result given three independent identifications and a sentence already reduced by the striking of two strikes. It did not, however, explain why the identification-suppression claim fails on the merits beyond noting Davis provided no support, and it did not cite People v. Kelly (2006) 40 Cal.4th 106 on the duty to address supplemental-brief contentions, though it substantively complied.
Opinion
Filed 1/26/16 P. v. Davis 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, D068138
Plaintiff and Respondent, v. (Super. Ct. No. SCS273151)
MICHAEL EARL DAVIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Francis M.
Devaney, Judge. Affirmed.
Jennifer A. Gambale for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Michael Earl Davis of one count of robbery (Pen. Code,1 § 211).
Davis admitted three serious felony prior convictions (§ 667, subd. (a)(1)) and three strike priors based on the same convictions (§ 667, subds. (b)-(i)). The court struck two 1 All further statutory references are to the Penal Code unless otherwise specified. of the "strike" priors and imposed a determinate sentence of 25 years in prison. Davis filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she 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 Davis the opportunity to file his own brief on appeal.
Davis has responded with a supplemental brief, which we will discuss below.
STATEMENT OF FACTS
At about 1:40 p.m., on June 2, 2014, a man approached a Citibank teller, holding a bag in his hand. The man told the teller, "This is a robbery and I want you to put all of your money into the bag and no dye packs." The teller placed over $10,000 in the bag and the man left. The teller pressed the panic button and advised bank staff what had happened.
Ultimately, the teller reviewed surveillance photos and identified Davis as the robber.
Davis was not apprehended that day, so police issued "wanted" posters to various places. An employee of Pacific Furlough recognized Davis from the poster and a photographic display. She knew Davis as a person who had been at the furlough center on more than one occasion.
A federal probation officer, who was supervising Davis, viewed the bank surveillance photos and identified Davis as the robber.
2 Davis was arrested on July 3, 2014. Police did not recover any of the bank money and were not able to connect Davis to the robbery by DNA analysis.
DISCUSSION
As we have noted, appellate counsel has advised the court she has not been able to identify any reasonably arguable issue for reversal on appeal. In compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified one possible, but not reasonably arguable issue to assist this court in conducting our review of the record for error:
Whether there is sufficient substantial evidence in the record to support the robbery conviction beyond a reasonable doubt.
In his supplemental brief, Davis essentially contends his defense counsel provided ineffective assistance. He faults counsel for not filing a motion under section 1538.5 (search and seizure motions) to suppress a defective identification process. He also asserts counsel should have filed a "Romero" motion (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497) to strike his "strike" priors. We note the trial court did strike two of the strike priors, thus avoiding a life sentence for Davis. Davis does not provide any support for the assertions made in the supplemental brief.
In addition to his supplemental brief, Davis filed a petition for writ of habeas corpus with this court. (In re Davis (D069498).) That petition was denied by separate order filed January 5, 2016.
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738. We have not been able to identify any reasonably 3 arguable issue for reversal on appeal. Competent counsel has represented Davis on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
Cites, in this corpus
- People v. Superior Court (Romero) S045097 · 1996-06-20
- People v. Wende Crim. 20851 · 1979-10-12