People v. Turner CA4/1

California Court of Appeal · D069005 · 2016-07-13 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD261039
Trial judge: Michael T. Smyth
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Alex C. McDonald, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:45Z · confidence low

The trial court convicted Brian L. Turner of unlawful taking and driving a vehicle, struck one of two admitted strike priors, and sentenced him to 32 months. The Court of Appeal affirmed the judgment after a Wende review found no reasonably arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Instruction of the jury with CALCRIM No. 371 regarding acts to hide evidence or discourage testimony “We have reviewed the entire record. We have not discovered any reasonably arguable issue for reversal on appeal.”	unclear	not reached	agree with court The appellate court conducted a Wende review and concluded that the issue raised by counsel was not reasonably arguable, thereby declining to address the merits of the instruction error claim. This is consistent with the procedural posture where the court reviews the record for error but finds no basis for reversal.
Refusal to redact the word 'blood' from the audio recording of Turner's conversation with Armstrong “We have reviewed the entire record. We have not discovered any reasonably arguable issue for reversal on appeal.”	unclear	not reached	agree with court The court identified this as a possible issue but determined it was not reasonably arguable for reversal. Consequently, the court did not apply a specific standard of review to the trial court's evidentiary ruling, relying instead on the Wende mandate to find no error in the record.
Instruction of the jury with CALCRIM No. 1820 regarding lack of permission for unlawful taking and driving a vehicle “We have reviewed the entire record. We have not discovered any reasonably arguable issue for reversal on appeal.”	unclear	not reached	agree with court Similar to the other issues, the court found this potential error in jury instructions was not reasonably arguable. The court affirmed the judgment without providing specific analysis on the correctness of the CALCRIM 1820 instruction as applied to the facts.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error and file a brief identifying any reasonably arguable issues, or stating that none exist.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues while arguing they are frivolous, allowing the court to review the record independently.

The appellate opinion: sound — The opinion is procedurally sound as it follows the established Wende/Anders protocol for reviewing appeals where counsel finds no merit. The court explicitly states it reviewed the entire record and found no reasonably arguable issues, which is the correct standard for this type of appeal.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A jury convicted Brian Turner of unlawful taking and driving a vehicle (Veh. Code, § 10851, subd. (a)); he admitted two strike priors, the trial court struck one, and sentenced him to 32 months. On appeal, appointed counsel filed a Wende brief identifying three possible Anders issues, Turner filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Instructing the jury with CALCRIM No. 371 (consciousness of guilt from attempts to hide evidence or discourage/obtain testimony) based on Turner's recorded jail call to the victim “regarding acts by a defendant to hide evidence or to discourage someone from testifying;”	unclear	correct	agree with court The opinion recites that Turner called Armstrong from jail and told her what to say to the jury about permission, and that she then changed her account at trial. That evidence supplies a factual basis for a consciousness-of-guilt instruction on attempting to influence testimony, and the court's implicit conclusion that the issue is not arguable follows from the record as described. The court did not separately analyze the issue, however, so the conclusion rests on independent Wende review rather than stated reasoning.
Refusing to redact the word "blood" from the audio recording of Turner's jail conversation with Armstrong “Whether the court erred in refusing to redact the word "blood" from the audio”	unclear	correct	unsure Evidentiary rulings on redaction are ordinarily reviewed for abuse of discretion, but the opinion says nothing about the context of the word, the Evidence Code section 352 argument, or the trial court's reasons. Without that record, one cannot independently assess whether the ruling was within the court's discretion; the Court of Appeal's summary conclusion is plausible but unverifiable from the opinion.
Instructing the jury with CALCRIM No. 1820, including the paragraph that prior permission alone does not establish consent on the date of the taking “regarding the issue of lack of permission for unlawful taking and driving a vehicle.”	unclear	correct	agree with court The quoted instruction correctly states the elements of Vehicle Code section 10851 and the prior-consent limitation, which was directly relevant because Armstrong testified Turner had keys and was generally 'able to use the car' while Turner himself acknowledged he lacked specific permission that night. The instruction fits the evidence and the pattern language; nothing in the opinion suggests misstatement of law.
Independent Wende review of the entire record finding no reasonably arguable issue and affirming the judgment “We have reviewed the entire record.”	de novo	correct	agree with court The court followed the Wende/Anders procedure: counsel filed a no-issue brief with possible issues, the defendant was offered and declined the chance to file a supplemental brief, and the court states it reviewed the entire record. Because Turner filed nothing, there were no personal contentions the court was required to address. The procedure as described is correct, though the opinion's brevity leaves the substantive conclusions unexplained.

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 issues before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal without merit may so advise the court while referring to anything in the record that might arguably support the appeal.

The appellate opinion: sound with gaps — The opinion correctly applies the Wende/Anders procedure, notes the defendant's failure to file a supplemental brief, and reaches a result consistent with the facts recited, including the recorded call that supports the consciousness-of-guilt instruction. It does not, however, give any reasoning on the three identified issues, particularly the redaction ruling, so the reader cannot verify the conclusions from the opinion itself.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 7/13/16 P. v. Turner 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, D069005

Plaintiff and Respondent, v. (Super. Ct. No. SCD261039)

BRIAN L. TURNER, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.

Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted Brian L. Turner of unlawful taking and driving a vehicle (Veh.

Code, § 10851, subd. (a)). Turner admitted two strike priors (Pen. Code, § 667, subds.

(b)-(i)). The court thereafter struck one of the priors and sentenced Turner to a term of 32 months. Turner filed a timely notice of appeal.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel 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 Turner the opportunity to file his own brief on appeal but he has not responded.

STATEMENT OF FACTS

On February 21, 2015, Angelina Armstrong reported her car had been stolen. She told police that her "ex-boyfriend," Brian Turner, had taken her key and then took her car.

Turner was arrested in the car on February 23, 2015.

Turner denied stealing the car. He basically said he had taken the car out longer than was probably intended.

Prior to the trial, Turner called Armstrong from the jail. The conversation was recorded. There Turner told Armstrong that she needed to tell the jury that he had general permission to use the car, although he did not specifically obtain permission that night.

At trial, Armstrong changed her statement about the events. She testified that Turner had a set of keys to the car and that he was "able to use the car." She denied telling police that Turner did not have permission to use the car.

DISCUSSION

As we have noted above, appellate counsel has asked the court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Although counsel has not 2 been able to identify any reasonably arguable issues for reversal on appeal, he has identified several possible, but not reasonably arguable issues for our consideration.

Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel offers the following possible issues:

1. Whether the trial court erred in instructing the jury with CALCRIM No. 3711 regarding acts by a defendant to hide evidence or to discourage someone from testifying;

2. Whether the court erred in refusing to redact the word "blood" from the audio recording of Turner's conversation with Armstrong;

3. Whether the trial court erred in instructing the jury with CALCRIM No. 18202 regarding the issue of lack of permission for unlawful taking and driving a vehicle.

1 CALCRIM No. 371 provides: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."

2 CALCRIM No. 1820 provides: "The defendant is charged in Count 1 with unlawfully driving a vehicle. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant drove someone else's vehicle without the owner's consent; [¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] Even if you conclude that the owner had allowed the defendant to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on February 23, 2015, based on that previous consent alone. [¶] A vehicle includes a passenger vehicle." 3 We have reviewed the entire record. We have not discovered any reasonably arguable issue for reversal on appeal. Competent counsel has represented Turner on this appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12