People v. Smith CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD258855
- Trial judges
- Robert F. O'Neill; Michael T. Smyth
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court affirmed Smith's guilty plea and sentenced him to nine years in prison, subsequently denying his request for a certificate of probable cause to withdraw the plea. The Court of Appeal affirmed the judgment after conducting an independent review of the record under the Wende/Anders protocol and finding no reasonably arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of defendant's request for certificate of probable cause to withdraw guilty plea“Did the trial court err in denying the defendant's request to withdraw his plea? (Pen. Code[, §] 1018).” | unclear | not reached | unsure The appellate court did not apply a specific standard of review (such as abuse of discretion) to the trial court's denial of the certificate of probable cause. Instead, the court treated the issue as a 'possible, but not arguable' issue identified by appointed counsel. The court conducted an independent review of the entire record pursuant to People v. Wende and Anders v. California, concluding that no reasonably arguable appellate issue existed. Consequently, the court affirmed the judgment without explicitly analyzing the merits of the withdrawal request or the trial court's application of the law to the facts. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to file a brief identifying no arguable issues and for the court to conduct an independent review of the record.
- relied: Anders v. California (1967) 368 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and for the court to independently review the record to ensure no arguable issues are overlooked.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for cases where appointed counsel finds no arguable issues. However, it is a 'sound with gaps' opinion because it fails to explicitly address the specific legal standard for withdrawing a plea or the trial court's denial of the certificate of probable cause, relying solely on the conclusion that no 'reasonably arguable' issue exists without detailed legal analysis.
How this analysis was made · dispute it
unusual disposition unusual dispositionFollowing a negotiated guilty plea to assault with a deadly weapon with a great-bodily-injury domestic violence enhancement, a prior serious felony, and a prior strike, the San Diego Superior Court imposed the stipulated nine-year prison term, declined to entertain the defendant's unrepresented assertion at sentencing that he had been coerced into the plea, and later denied his request for a certificate of probable cause. On appeal, appointed counsel filed a Wende/Anders brief identifying only the plea-withdrawal question as a possible issue; the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's implicit refusal to entertain the defendant's request at sentencing to withdraw his guilty plea (Pen. Code, § 1018) after counsel declined to bring the motion“Smith's counsel reiterated that there were no viable grounds to support a motion to withdraw. The trial court sentenced Smith.” | unclear | correct | agree with court The court conducted only an independent Wende review and found the issue not reasonably arguable without explaining why. The result is defensible for two reasons the opinion does not spell out: the defendant's certificate of probable cause was denied, so any attack on the validity of the plea is not cognizable on appeal under Penal Code section 1237.5 (People v. Mendez; People v. Panizzon), and the record shows a thorough plea colloquy in which the defendant coherently affirmed his understanding. The court's failure to discuss People v. Brown, which addresses a trial court's duty when a defendant personally seeks to withdraw a plea over counsel's objection, is a gap but does not change the outcome given the certificate bar. |
Imposition of the stipulated nine-year prison sentence with fines, fees, and victim restitution“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 368 U.S. 738, including the issue suggested by counsel, and have not found any reasonably arguable appellate issue.” | unclear | correct | agree with court The sentence was the bargained-for stipulated term, and the amended notice of appeal limited the appeal to post-plea matters. The opinion recites nothing suggesting an unauthorized sentence or an error in fines, fees, or restitution, and the defendant filed no supplemental brief. On this record the affirmance under Wende is supported. |
Denial of the defendant's request for a certificate of probable cause“On December 22, 2014, the court denied Smith's request for a certificate of probable cause.” | unclear | not reached | agree with court The Court of Appeal noted the denial but did not review it; a certificate denial is reviewable only by writ of mandate, not on the appeal itself. The court properly treated the appeal as limited to post-plea matters. |
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 — Appointed counsel who finds an appeal frivolous may so advise the court but should identify anything in the record that might arguably support the appeal; the opinion cites this case inconsistently as both 368 U.S. 738 and 386 U.S. 738.
- missed: People v. Mendez (1999) 19 Cal.4th 1084 — A defendant who has pleaded guilty may not raise on appeal issues going to the validity of the plea unless a certificate of probable cause has been obtained; section 1237.5 is to be applied strictly.
- missed: People v. Panizzon (1996) 13 Cal.4th 68 — A challenge to a plea or to a sentence that was an integral part of the plea bargain is in substance a challenge to the validity of the plea and requires a certificate of probable cause.
- missed: People v. Brown (1986) 179 Cal.App.3d 207 — When a represented defendant personally seeks to withdraw a guilty plea and counsel refuses to bring the motion, the trial court should address the matter rather than simply proceed to sentencing; relevant to whether counsel's suggested issue was arguable.
- missed: People v. Kelly (2006) 40 Cal.4th 106 — A Wende opinion should describe the offenses, the procedural history, the issues counsel raised, and briefly explain why they lack merit; the opinion here states a conclusion on the plea-withdrawal issue without explanation.
The appellate opinion: sound with gaps — The affirmance is defensible because the denial of a certificate of probable cause barred any attack on the plea and the record shows a proper colloquy and stipulated sentence. The opinion, however, states only a bare conclusion on the one issue counsel flagged, does not mention the section 1237.5 bar or the Brown line of cases, and cites Anders inconsistently (368 vs. 386 U.S. 738).
Opinion
Filed 3/4/16 P. v. Smith 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, D067231
Plaintiff and Respondent, v. (Super. Ct. No. SCD258855)
ASBURY JOHN SMITH III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill and Michael T. Smyth, Judges. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff/Defendant and Respondent.
Pursuant to a plea agreement, Asbury John Smith entered a guilty plea to one count of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)), and admitted:
(1) a section 12022.7, subdivision (e) enhancement for personally inflicting great bodily 1 All further statutory references are to the Penal Code unless otherwise specified. injury under circumstances involving domestic violence, (2) a prior serious felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and (3) a prior strike (§§ 667, subds. (b)-(i), 668, 1170.12). The trial court sentenced Smith to nine years in prison, and ordered him to pay fines, fees, and victim restitution.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 368 U.S. 738 (Anders) raising a possible, but not arguable issue. We offered Smith the opportunity to file his own brief on appeal, but he has not responded.
FACTUAL AND PROCEDURAL BACKGROUND
Since Smith was convicted pursuant to a guilty plea we take the facts from the probation officer's report. On September 28, 2014, Smith began arguing with his former wife, Jane Higgison, at their transient camp underneath a freeway. He stabbed her with a knife, lacerating the right side of her abdomen as well as her right wrist and arm.
Higgison fell to the ground on her back, saw blood, and realized she had been stabbed;
she tried to walk a short distance, but collapsed. As Smith walked away from the camp area, he passed by Higgison's boyfriend, Thomas Gomez, and told Gomez to "check on Jane." Gomez found Higgison lying in the dirt, bleeding. Higgison told Gomez that Smith had stabbed her, and she later told police that Smith had stabbed her with a hunting knife that he carried with him. Officers located Smith with the knife in his backpack and blood stains on his pants.
On October 1, 2014, a felony complaint was filed against Smith. The operative amended complaint was filed on October 10, 2014, charging one count of assault with a 2 deadly weapon and a second count of corporal injury to Higgison in violation of section 273.5, subdivision (a), with special allegations on each count. As stated above, Smith entered into a written plea agreement; in exchange for his plea, Smith would receive a stipulated sentence of nine years, be referred to substance abuse treatment in prison, and have the balance of the amended complaint dismissed. On October 10, Smith was arraigned on the amended complaint, entered a guilty plea, and affirmed in court that he had consulted with his counsel and fully understood the implications of his plea. Smith coherently answered a series of questions by the trial judge related to his understanding of the ramifications of pleading guilty. Accordingly, the court dismissed the balance of the amended complaint and set a date for sentencing.
The sentencing hearing was held on December 2, 2014. Smith's counsel stated that there was no legal cause why sentence should not be pronounced. Smith disagreed, arguing that he believed there were grounds for a motion to withdraw his plea because he was "coerced into it." Smith's counsel reiterated that there were no viable grounds to support a motion to withdraw. The trial court sentenced Smith.
On December 3, 2014, Smith filed a notice of appeal, challenging the validity of his plea. He attached a request for certificate of probable cause, declaring that he had not been in his "right mind" when he signed the plea agreement; although he had been "10 days clean" of drugs, he had not been "sober or clear-minded" at the time of signing, and he had not known what the judge was asking him when he pleaded guilty. On December 22, 2014, the court denied Smith's request for a certificate of probable cause. On January 3 7, 2015, he filed an amended notice of appeal from the sentence or other matters occurring after the plea.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies one possible, but not arguable issue: "Did the trial court err in denying the defendant's request to withdraw his plea? (Pen. Code[, §] 1018)."
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 368 U.S. 738, including the issue suggested by counsel, and have not found any reasonably arguable appellate issue. Competent counsel has represented Smith on appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12