People v. Realmuto CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE338577
- Trial judges
- Daniel B. Goldstein; Daniel G. Lamborn; Margaret A. Power
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith L. Haller (author), Richard D. Huffman, Sr., Gilbert Nares
Analysis
The trial court revoked and reinstated the defendant's probation, imposing additional custody time and a condition prohibiting association with known drug users and offenders, while denying a request to exempt his girlfriend from this condition. The Court of Appeal affirmed the judgment after an independent review under Anders and Wende found no reasonably arguable appellate issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of request to modify probation condition prohibiting association with known drug users and offenders“Whether "the trial court abuse[d] its discretion in denying appellant's request to modify a probation condition prohibiting him from associating with known drug users and offenders[.]"” | abuse of discretion | not reached | agree with court The appellate court conducted an independent review of the record pursuant to Anders and Wende and concluded that no reasonably arguable appellate issues existed, thereby affirming the judgment without addressing the specific merits of the trial court's denial of the modification request. |
Authorities
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed appellate counsel to file a brief identifying issues that might arguably support an appeal when no meritorious issues are found.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the appellate court to conduct an independent review of the record to determine if there are any reasonably arguable issues when counsel files a Wende brief.
The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Anders/Wende protocol for handling appeals where appointed counsel finds no meritorious issues. The court explicitly states it conducted an independent review and found no reasonably arguable issues, which is the required standard for affirmance in this context.
How this analysis was made · dispute it
unusual dispositionThe trial court, after Realmuto admitted violating probation on a DUI conviction with three priors, revoked and reinstated probation with 210 days' custody and added conditions (obey all laws; no association with known drug users and offenders), and later denied his request to exempt his girlfriend from the no-association condition. On appeal, appointed counsel filed a Wende/Anders brief, Realmuto filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation and reinstatement of probation on admitted violation, with 210 days' local custody and two added conditions (obey all laws; no association with known drug users and offenders)“The court formally revoked and reinstated probation on condition he serve 210 days' local custody with credit for 169 days served and accept two additional probation conditions, including that appellant not associate with known drug users and offenders.” | abuse of discretion | correct | agree with court Realmuto waived an evidentiary hearing and admitted the violation, which involved possession of methamphetamine, marijuana, and paraphernalia, driving on a suspended license, and refusing drug tests. The added conditions directly track the conduct underlying the violation and the alcohol/drug nature of the offense, so they are reasonably related to the offense and to preventing future criminality; nothing in the opinion suggests an arguable abuse of discretion. |
Denial of request to modify the no-association probation condition to exempt appellant's girlfriend“The court granted appellant's travel request but denied the request to exempt his girlfriend from the probation condition prohibiting his contact with known drug users and offenders.” | abuse of discretion | correct | agree with court The girlfriend was living in the home where drugs were found, personally possessed marijuana, and had active warrants for DUI and being under the influence of drugs. Barring association with her is reasonably related to the alcohol/drug-related offense and to appellant's demonstrated drug use on probation, so denial of the exemption falls within the court's discretion. The opinion does not analyze the issue beyond concluding it is not arguable, but the facts recited support that conclusion. |
Authorities
- 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, after which the court conducts its own review.
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a no-issue brief, the Court of Appeal must independently review the entire record for arguable issues before affirming.
The appellate opinion: sound — The court followed the Wende/Anders procedure, gave appellant the opportunity to file a supplemental brief, identified counsel's suggested issue, and found no arguable error; the recited facts about the girlfriend's drug possession and outstanding warrants readily support the challenged condition. The opinion does not cite the Lent reasonableness test or otherwise explain why the no-association condition was proper, but a Wende affirmance is not required to do so and the result is clearly defensible.
Opinion
Filed 10/5/16 P. v. Realmuto 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, D069994
Plaintiff and Respondent, v. (Super. Ct. No. SCE338577)
PETER R. REALMUTO, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel B.
Goldstein, Margaret A. Power and Daniel G. Lamborn, Judges. Affirmed.
Michelle Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Peter R. Realmuto pled guilty to driving while having a measureable blood alcohol (Veh. Code, § 23152, subd. (b)) and admitted three prior driving under the influence convictions within 10 years (Veh. Code, §§ 23626, 23550, subd. (a)). The court suspended imposition of a prison sentence and granted appellant five years' formal probation on condition he agree to several terms and conditions associated with driving under the influence convictions and serve 149 days in custody. (Pen. Code, § 1170, subd.
(h)(5)(A).)
On January 29, 2016, approximately one year after sentencing, appellant waived an evidentiary hearing and admitted to violating probation. The court formally revoked and reinstated probation on condition he serve 210 days' local custody with credit for 169 days served and accept two additional probation conditions, including that appellant not associate with known drug users and offenders.
Appointed appellate counsel filed a brief under Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We sent Realmuto notice that his attorney had filed a Wende brief and provided Realmuto with the opportunity to file a supplemental brief. We did not receive a response from him. After an independent review, we discern no reasonably arguable appellate issues and affirm.
STATEMENT OF FACTS AND PROCEDURE1
In December 2012, appellant was stopped by CHP officers who observed him driving at about 65 to 70 miles per hour and noted sparks and debris coming from the left front tire area of his vehicle. Upon contacting appellant, they noted several symptoms consistent with alcohol consumption including the smell of an alcoholic beverage, red and watery eyes, the inability to provide intelligible answers to questions and difficulty 1 Because there was no preliminary hearing the facts are derived from the probation report.
2 staying awake. The officers also noted damage to the front of appellant's vehicle.
Following a nonconsensual blood draw, appellant's blood alcohol content was determined to be .16.
After pleading guilty and being placed on probation, appellant was arrested at his home in January 2016 for violating the following terms and conditions of his probation:
possessing a controlled substance; driving while his license was suspended; and failing to submit to drug testing when requested. Methamphetamine, marijuana and drug paraphernalia were located at appellant's home when probation officers conducted compliance checks. During those visits, officers noted that appellant's girlfriend, who was in possession of marijuana and who had two active warrants (one for driving under the influence and the other for being under the influence of drugs), was living at the home.
Appellant waived an evidentiary hearing and admitted he was in violation of his probation. At that hearing, the probation officer recommended probation be reinstated and requested two additional conditions be added to appellant's probationary terms: obey all laws and not associate with known drug users and offenders. The court followed these recommendations and imposed additional time in custody.
At a follow-up hearing, appellant requested permission to travel to Missouri to visit his critically ill mother and to continue to have contact with his girlfriend. The court granted appellant's travel request but denied the request to exempt his girlfriend from the probation condition prohibiting his contact with known drug users and offenders.
3 DISCUSSION
Counsel has identified the following issue that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): Whether "the trial court abuse[d] its discretion in denying appellant's request to modify a probation condition prohibiting him from associating with known drug users and offenders[.]" (Capitalization omitted.)
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issue referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Realmuto on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12