People v. Cota CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS276743
- Trial judge
- Stephanie Sontag
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), Judith L. Haller, Patricia D. Benke
Analysis
The trial court convicted Fernando Cota of trespass and possession of a concealed dirk or dagger, and resentenced him to eight months in prison. 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.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of the judgment of conviction and sentence“Our review of the entire record under Wende and Anders has disclosed no reasonably arguable appellate issues.” | de novo | not reached | agree with court The court applied the standard of review for a Wende/Anders appeal, which requires the court to independently review the record to determine if there are any reasonably arguable issues. The court found none, leading to an affirmance. |
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 independently review the record if no issues are raised.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed appellate counsel to withdraw when an appeal is wholly frivolous, requiring a court review of the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for a no-issue appeal. It accurately states that the court reviewed the record and found no arguable errors, which is the required standard for such dispositions.
A jury convicted Fernando Cota of trespass (Pen. Code, § 602.5) with a person present and possessing a concealed dirk or dagger (§ 21310), he admitted two prison priors, and the trial court ultimately resentenced him to eight months (one-third the midterm) on the dirk or dagger count consecutive to the sentence in a separate case. On appeal, counsel filed a Wende brief raising no issues, Cota filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and sentence (trespass with person present, concealed dirk or dagger, two admitted prison priors; resentenced to eight months consecutive)“Our review of the entire record under Wende and Anders has disclosed no reasonably arguable appellate issues.” | unclear | correct | agree with court This is a Wende/Anders independent-review appeal. The opinion recites that counsel raised no issues, the defendant declined to file a supplemental brief, and the court reviewed the entire record and found nothing arguable. The opinion contains too little of the record to identify any specific error; the sentence described (one-third midterm consecutive) is consistent with Penal Code section 1170.1, subdivision (a), and the fines and fees listed are standard. Nothing in the opinion suggests an error, but the record quoted is minimal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion correctly follows the Wende/Anders procedure: counsel filed a no-issues brief, the defendant was given the chance to file his own brief and did not, and the court independently reviewed the record and found no arguable issues. The reasoning is necessarily brief and the record described in the opinion is sparse (no reporter's transcript of trial), so the result cannot be independently verified beyond the court's own representation of its review.
Opinion
Filed 7/19/16 P. v. Cota 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, D069371
Plaintiff and Respondent, v. (Super. Ct. No. SCS276743)
FERNANDO COTA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury found Fernando Cota not guilty of burglary (Pen. Code, § 459)1 but guilty of the lesser included offense of trespass (§ 602.5). The jury found true the allegation 1 All further statutory references are to the Penal Code. that a person authorized to be in the dwelling was present within the meaning of section 602.5, subdivision (b). The jury also found Cota guilty of possessing a concealed dirk or dagger (§ 21310). Cota admitted two prior prison convictions (§ 667.5, subd. (b)). The court initially sentenced Cota to the upper term of three years on the concealed dirk or dagger count and imposed two one-year terms for the admitted prison priors. However, at a later sentencing hearing on both the present case and trial court case No. SCS279566 (the subject of the appeal in this court's case No. D069049), the court vacated the sentence in case No. SCS276743 and resentenced Cota to one-third the midterm on the dirk or dagger count or eight months, consecutive to the sentence imposed in case No.
SCS279566. Cota was given credit for 322 days of time served and ordered to pay a $40 court security fee, a $300 restitution fine, and a $300 parole revocation fine, stayed pending successful completion of parole.
FACTS
The record does not include a reporter's transcript of the trial proceedings.
According to the probation report, on January 1, 2015, at 2:06 a.m., police officers responded to a burglary in progress at the home of Emilio Perez. Perez told the officers that he awakened to find Cota standing inside his trailer. Cota stood motionless and Perez told his wife to call 911. Perez did not know Cota and did not give him permission to be inside the home. The officers arrested and searched Cota without incident. They recovered a seven and one-half inch fixed blade knife from inside his waistband.
2 DISCUSSION
Appellate counsel has filed a brief summarizing the facts and proceedings below but raising no specific issues or argument for reversal. Counsel has asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.
Counsel has not identified any possible issues under Anders v. California (1967) 386 U.S.
738. We offered Cota the opportunity to file a brief on his own behalf, and he has not responded.
Our review of the entire record under Wende and Anders has disclosed no reasonably arguable appellate issues. Appellate counsel has competently represented Cota on appeal.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12